Benefit Plans. (i) Section 3.2(j)(i) of the Parent Disclosure Letter contains a true, complete and correct list of each Benefit Plan sponsored, maintained or contributed by Parent or any of its Subsidiaries, or which Parent or any of its Subsidiaries is obligated to sponsor, maintain or contribute to, or with respect to which Parent or its Subsidiaries otherwise has any liability (the “Parent Benefit Plans”). No Parent Benefit Plan is established or maintained outside of the United States or for the benefit of current or former employees of Parent or any of its Subsidiaries residing outside of the United States. (ii) Parent has delivered or made available to the Company prior to the date of this Agreement a true, correct and complete copy of each Parent Benefit Plan currently in effect and, with respect thereto, if applicable, (A) all amendments, the current trust (or other funding vehicle) agreements, and the most recent summary plan descriptions, (B) 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 Parent Benefit Plan, (C) the most recent determination letter from the IRS (if applicable) for such Parent Benefit Plan and (D) any notice to or from the IRS or any office or representative of the Department of Labor relating to any unresolved compliance issues in respect of such Parent Benefit Plan. (iii) Except as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on Parent, (A) each Parent 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 thereunder, (B) each Parent Benefit Plan intended to be qualified under Section 401(a) of the Code has received a favorable determination or opinion letter as to its qualifications from the IRS or is entitled to rely on an advisory or opinion letter as to its qualifications 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 adversely affect the qualified status of any such plan, (C) neither Parent nor any of its Subsidiaries has engaged in a transaction that has resulted in, or would reasonably be expected to result in, the assessment of a civil penalty upon Parent or any of its Subsidiaries pursuant to Section 409 or 502(i) of ERISA or a tax imposed pursuant to Section 4975 or 4976 of the Code that has not been satisfied in full, (D) there does not now exist, nor, to the knowledge of Parent, do any circumstances exist that would reasonably be expected to result in, any Controlled Group Liability that would be a liability of Parent, any of its Subsidiaries or any of their respective ERISA Affiliates, (E) all payments required to be made by or with respect to each Parent Benefit Plan (including all contributions, insurance premiums or intercompany charges) with respect to all prior periods have been timely made or paid by Parent or its Subsidiaries in accordance with the provisions of each of the Parent 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 Parent in accordance with GAAP and (F) there are no pending or, to the knowledge of Parent, threatened claims by or on behalf of any Parent Benefit Plan, by any employee or beneficiary covered under any Parent Benefit Plan or otherwise involving any Parent Benefit Plan or any trusts related thereto (other than routine claims for benefits). (iv) None of Parent, any of its Subsidiaries or any of their respective ERISA Affiliates 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 plan subject to Title IV or Section 302 of ERISA or Section 412 or Section 430 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 plan” (as defined in Section 3(37) of ERISA), or (C) any plan or arrangement which provides for post-employment or post-retirement medical or welfare benefits for retired or former employees or beneficiaries or dependents thereof, except pursuant to Section 4980B of the Code or other applicable Law. (v) With respect to each Parent Benefit Plan that is subject to Title IV or Section 302 of ERISA or Section 412 or 430 of the Code (each, a “Parent Title IV Plan”): (A) there does not exist any failure to meet the “minimum funding standard” of Section 412 of the Code or 302 of ERISA (whether or not waived), (B) no such plan is in “at-risk” status for purposes of Section 430 of the Code, (C) the present value of accrued benefits under such Parent Title IV Plan, based upon the actuarial assumptions used for funding purposes in the most recent actuarial report prepared by such Parent Title IV Plan’s actuary with respect to such Parent Title IV Plan, did not, as of its latest valuation date, exceed the then current fair market value of the assets of such Parent Title IV Plan allocable to such accrued benefits, (D) no reportable event within the meaning of Section 4043(c) of ERISA has occurred, (E) all premiums to the PBGC have been timely paid in full, (F) no liability (other than for premiums to the PBGC) under Title IV of ERISA has been or is expected to be incurred by Parent or any of its ERISA Affiliates, and (G) the PBGC has not instituted proceedings to terminate any such Parent Title IV Plan and, to the knowledge of Parent, no circumstances exist which could serve as a basis for the institution of such proceedings. (vi) Except as set forth on Section 3.2(j)(vi) of the Parent Disclosure Letter, 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) increase any benefits otherwise payable or trigger any other obligation under any Parent Benefit Plan, (B) result in any acceleration of the time of payment, funding or vesting of any such benefits or (C) result in any limitation on the right of Parent or any of its Subsidiaries to amend, merge, terminate or receive a reversion of assets from any Parent Benefit Plan or related trust. (vii) No Parent Benefit Plan provides for the gross-up or reimbursement of Taxes under Section 409A or 4999 of the Code or otherwise.
Appears in 2 contracts
Samples: Merger Agreement (Kimco Realty Corp), Merger Agreement (Weingarten Realty Investors /Tx/)
Benefit Plans. (i) Section 3.2(j)(i3.1(j)(i) of the Parent Company Disclosure Letter contains a true, correct and complete and correct list of each material Benefit Plan sponsored, maintained or contributed to by Parent the Company or any of its Subsidiaries, or which Parent the Company or any of its Subsidiaries is obligated to sponsor, maintain or contribute to, other than any plan or with respect program maintained by a Governmental Entity to which Parent the Company or its Subsidiaries otherwise has any liability is required to contribute to pursuant to applicable Law (the “Parent Company Benefit Plans”). No Parent Company Benefit Plan is established or maintained outside of the United States or for the benefit of current or former employees of Parent or any of its Subsidiaries residing outside of the United States.
(ii) Parent The Company has delivered or made available to the Company Parent prior to the date of this Agreement a true, correct and complete copy of each Parent Company Benefit Plan currently in effect as of the date hereof and, with respect thereto, if applicable, (A) all amendments, the current trust (or other funding vehicle) agreements, and the most recent summary plan descriptions, (B) 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 Parent Company Benefit Plan, (C) the most recent determination or opinion letter from the IRS (if applicable) for such Parent Company Benefit Plan and (D) any notice to or from the IRS or material correspondence with a Governmental Entity regarding any office or representative of the Department of Labor relating to any unresolved compliance issues in respect of such Parent Company Benefit Plan.
(iii) Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect on ParentEffect, (A) each Parent Company 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 thereunder, (B) each Parent Company Benefit Plan intended to be qualified under Section 401(a) of the Code has received a favorable determination letter or is the subject of a favorable opinion letter from the IRS as to its qualifications from qualification, and, to the IRS or is entitled to rely on an advisory or opinion letter as to its qualifications issued with respect to an IRS approved master and prototype or volume submitter planknowledge of the Company, and there are no existing circumstances or any events that have occurred that would reasonably be expected to adversely affect the qualified status of any such plan, (C) neither Parent the Company nor any of its Subsidiaries has engaged in a transaction that has resulted in, or would reasonably be expected to result in, the assessment of a civil penalty upon Parent the Company or any of its Subsidiaries pursuant to Section 409 or Section 502(i) of ERISA or a tax imposed pursuant to Section 4975 or 4976 of the Code that has not been satisfied in fullCode, (D) there does not now exist, nor, to the knowledge of Parentthe Company, do any circumstances exist that would reasonably be expected to result in, any Controlled Group Liability that would be a liability of Parentthe Company, any of its Subsidiaries or any of their respective ERISA Affiliates, (E) all payments required to be made by or with respect to each Parent Company Benefit Plan (including all contributions, insurance premiums or intercompany charges) with respect to all periods ending prior periods to the date hereof have been timely made or paid by Parent the Company or its Subsidiaries in accordance with the provisions of each of the Parent Company 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 Parent the Company in accordance with GAAP and (F) there are no pending or, to the knowledge of Parentthe Company, threatened claims by or on behalf of any Parent Company Benefit Plan, by any employee or beneficiary covered under any Parent Company Benefit Plan or otherwise involving any Parent Company Benefit Plan or any trusts related thereto (other than routine claims for benefits).
(iv) None of Parentthe Company, any of its Subsidiaries or any of their respective ERISA Affiliates Affiliates, 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 plan subject to Title IV or Section 302 of ERISA or Section 412 or Section 430 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 plan” (as defined in Section 3(37) of ERISA), or (C) any plan or arrangement which provides for post-employment or post-retirement medical or welfare benefits for retired or former employees or beneficiaries or dependents thereof, except pursuant to Section 4980B of the Code or other applicable LawLaw (or during any post-termination period during which the former employee is receiving severance).
(v) With respect to each Parent Benefit Plan that is subject to Title IV or Section 302 of ERISA or Section 412 or 430 of the Code (each, a “Parent Title IV Plan”): (A) there does not exist any failure to meet the “minimum funding standard” of Section 412 of the Code or 302 of ERISA (whether or not waived), (B) no such plan is in “at-risk” status for purposes of Section 430 of the Code, (C) the present value of accrued benefits under such Parent Title IV Plan, based upon the actuarial assumptions used for funding purposes in the most recent actuarial report prepared by such Parent Title IV Plan’s actuary with respect to such Parent Title IV Plan, did not, as of its latest valuation date, exceed the then current fair market value of the assets of such Parent Title IV Plan allocable to such accrued benefits, (D) no reportable event within the meaning of Section 4043(c) of ERISA has occurred, (E) all premiums to the PBGC have been timely paid in full, (F) no liability (other than for premiums to the PBGC) under Title IV of ERISA has been or is expected to be incurred by Parent or any of its ERISA Affiliates, and (G) the PBGC has not instituted proceedings to terminate any such Parent Title IV Plan and, to the knowledge of Parent, no circumstances exist which could serve as a basis for the institution of such proceedings.
(vi) Except as set forth on Section 3.2(j)(vi) of the Parent Disclosure Letter, neither 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, “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 the Company or any of its Subsidiaries under any Company Benefit Plan, (B) increase any benefits otherwise payable or trigger any other obligation under any Parent Company Benefit Plan, or (BC) result in any acceleration of the time of payment, funding or vesting of any such benefits or (C) result in any limitation on the right of Parent or any of its Subsidiaries to amend, merge, terminate or receive a reversion of assets from any Parent Benefit Plan or related trustbenefits.
(viivi) No Parent Company Benefit Plan provides for the gross-up or reimbursement of Taxes under Section 409A or Section 4999 of the Code or otherwise.
Appears in 2 contracts
Samples: Merger Agreement (Sabra Health Care REIT, Inc.), Merger Agreement (Care Capital Properties, Inc.)
Benefit Plans. (i) Section 3.2(j)(i3.1(j)(i) of the Parent Company Disclosure Letter contains a true, complete and correct list of each material Company Benefit Plan sponsored, maintained or contributed by Parent or any of its Subsidiaries, or which Parent or any of its Subsidiaries is obligated to sponsor, maintain or contribute to, or with respect to which Parent or its Subsidiaries otherwise has any liability (the “Parent Benefit Plans”)Plan. No Parent Company Benefit Plan is established or maintained outside of the United States or for the benefit of current or former employees of Parent the Company or any of its Subsidiaries residing outside of the United States.
(ii) Parent The Company has delivered or made available to the Company Parent prior to the date of this Agreement a true, correct and complete copy of each Parent Company Benefit Plan currently in effect and, with respect thereto, if applicable, (A) all amendments, the current trust (or other funding vehicle) agreements, and the most recent summary plan descriptionsdescriptions and insurance contracts, (B) the most recent annual report (Form 5500 series including, where applicable, all schedules and actuarial and accountants’ reports) filed with the Department of Labor IRS and the most recent actuarial report or other financial statement relating to such Parent Company Benefit Plan, (C) the most recent determination letter from the IRS (if applicable) for such Parent Company Benefit Plan and (D) any notice to or from the IRS or any office or representative of the Department of Labor material correspondence with a Governmental Entity relating to any unresolved compliance issues in respect of such Parent any Company Benefit PlanPlan in the last two years.
(iii) Except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect on ParentEffect, (A) each Parent Company 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 thereunder, (B) each Parent Company Benefit Plan intended to be qualified under Section 401(a) of the Code has received a favorable determination or opinion letter as to its qualifications qualification from the IRS or is entitled to rely on an advisory or opinion letter as to its qualifications 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 adversely affect the qualified status of any such plan, (C) neither Parent the Company nor any of its Subsidiaries has engaged in a transaction that has resulted in, or would reasonably be expected to result in, the assessment of a civil penalty upon Parent the Company or any of its Subsidiaries pursuant to Section 409 or 502(i) of ERISA or a tax imposed pursuant to Section 4975 or 4976 of the Code that has not been satisfied in full, (D) there does not now exist, nor, to the knowledge of Parentthe Company, do any circumstances exist that would reasonably be expected to result in, any Controlled Group Liability that would be a liability of Parentthe Company, any of its Subsidiaries or any of their respective ERISA Affiliates, (E) all payments required to be made by or with respect to each Parent Company Benefit Plan (including all contributions, insurance premiums or intercompany charges) with respect to all prior periods have been timely made or paid by Parent the Company or its Subsidiaries in accordance with the provisions of each of the Parent Company 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 Parent the Company in accordance with GAAP and (F) there are no pending or, to the knowledge of Parentthe Company, threatened claims by or on behalf of any Parent Company Benefit Plan, by any employee or beneficiary covered under any Parent Company Benefit Plan or otherwise involving any Parent Company Benefit Plan or any trusts related thereto (other than routine claims for benefits).
(iv) None of Parent, Neither the Company nor any of its Subsidiaries or any of their respective ERISA Affiliates 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 (including, in each case, on account of any ERISA Affiliate of the Company or such Subsidiary) in connection with: (A) a plan subject to Title IV or Section 302 of ERISA or Section 412 or Section 430 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 plan” (as defined in Section 3(37) of ERISA), or (C) any plan or arrangement which provides for post-employment or post-retirement medical or welfare benefits for retired or former employees or beneficiaries or dependents thereof, except pursuant to as required by Section 4980B of the Code or other applicable LawCode.
(v) With respect to each Parent Benefit Plan that is subject to Title IV or Section 302 of ERISA or Section 412 or 430 of the Code (each, a “Parent Title IV Plan”): (A) there does not exist any failure to meet the “minimum funding standard” of Section 412 of the Code or 302 of ERISA (whether or not waived), (B) no such plan is in “at-risk” status for purposes of Section 430 of the Code, (C) the present value of accrued benefits under such Parent Title IV Plan, based upon the actuarial assumptions used for funding purposes in the most recent actuarial report prepared by such Parent Title IV Plan’s actuary with respect to such Parent Title IV Plan, did not, as of its latest valuation date, exceed the then current fair market value of the assets of such Parent Title IV Plan allocable to such accrued benefits, (D) no reportable event within the meaning of Section 4043(c) of ERISA has occurred, (E) all premiums to the PBGC have been timely paid in full, (F) no liability (other than for premiums to the PBGC) under Title IV of ERISA has been or is expected to be incurred by Parent or any of its ERISA Affiliates, and (G) the PBGC has not instituted proceedings to terminate any such Parent Title IV Plan and, to the knowledge of Parent, no circumstances exist which could serve as a basis for the institution of such proceedings.
(vi) Except as set forth on Section 3.2(j)(vi) of the Parent Disclosure Letter, neither 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, employee or other service provider of the Company or any of its Subsidiaries under any Company Benefit Plan or otherwise, (B) increase any benefits otherwise payable or trigger any other obligation under any Parent Company Benefit Plan, (BC) result in any acceleration of the time of payment, funding or vesting of any such benefits or (CD) result in any limitation on the right of Parent the Company or any of its Subsidiaries to amend, merge, terminate or receive a reversion of assets from any Parent Company Benefit Plan or related trust.
(viivi) No Parent Company Benefit Plan provides for the gross-up or reimbursement of Taxes under Section 409A or 4999 of the Code or otherwiseCode.
Appears in 2 contracts
Samples: Merger Agreement (New Senior Investment Group Inc.), Merger Agreement (Ventas, Inc.)
Benefit Plans. No Benefit Plan of Earthstone or its ERISA Affiliates is a “defined benefit plan” within the meaning of Section 3(35) of ERISA, a “multiemployer plan,” as defined in Section 3(37) of ERISA, or a plan that is subject to the minimum funding standards of Section 302 of ERISA or 412 of the Code (i) a “Pension Plan”). To the Knowledge of Earthstone, there have been no prohibited transactions (described under Section 3.2(j)(i406 of ERISA or Section 4975(c) of the Parent Disclosure Letter contains a trueCode) or breaches of fiduciary duty or any other breaches or violations of any law applicable to any of the Benefit Plans, complete and correct list in any such case that would subject Earthstone to any material Taxes, penalties or other liabilities. There are no investigations or audits of each any Benefit Plan sponsoredby any Governmental Authority currently pending and there have been no such investigations or audits that have been concluded that resulted in any liability to Earthstone, maintained or contributed by Parent or any of its Subsidiaries, or which Parent or any of its Subsidiaries is obligated to sponsor, maintain or contribute to, or with respect to which Parent or its Subsidiaries otherwise ERISA Affiliates that has any liability (not been fully discharged. To the “Parent Benefit Plans”). No Parent Benefit Plan is established or maintained outside Knowledge of the United States or for the benefit of current or former employees of Parent or any of its Subsidiaries residing outside of the United States.
(ii) Parent has delivered or made available to the Company prior to the date of this Agreement a trueEarthstone, correct and complete copy of each Parent Benefit Plan currently in effect and, with respect thereto, if applicable, (A) all amendments, the current trust (or other funding vehicle) agreements, and the most recent summary plan descriptions, (B) 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 Parent Benefit Plan, (C) the most recent determination letter from the IRS (if applicable) for such Parent Benefit Plan and (D) any notice to or from the IRS or any office or representative of the Department of Labor relating to any unresolved compliance issues in respect of such Parent Benefit Plan.
(iii) Except as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on Parent, (A) each Parent Benefit Plan has been maintained and administered operated in all material respects in compliance with applicable law and in accordance with its terms terms, and with applicable Lawall reports, including, but not limited todescriptions and filings required by the Code, ERISA and the Code and in or any government agency with respect to each case the regulations thereunder, (B) each Parent Benefit Plan intended of Earthstone or its ERISA Affiliates have, in all material respects, been timely and completely filed or distributed. Each Benefit Plan that is represented to be 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 favorable determination or opinion letter as to its qualifications from the IRS or is entitled to rely on an advisory or opinion letter as to its qualifications issued with respect to an IRS approved master and prototype or volume submitter planletter, all subsequent interim amendments have been made in a timely manner, and there are to the Knowledge of Earthstone, no existing circumstances such Benefit Plan has been amended or any events that have occurred that would operated in a way which could reasonably be expected to adversely affect its qualified status or the qualified status of any such plan, (C) neither Parent nor any of its Subsidiaries has engaged in a transaction that has resulted in, or would reasonably be expected to result in, the assessment of a civil penalty upon Parent or any of its Subsidiaries pursuant to Section 409 or 502(i) of ERISA or a tax imposed pursuant to Section 4975 or 4976 of the Code that has not been satisfied in full, (D) there does not now exist, nor, to the knowledge of Parent, do any circumstances exist that would reasonably be expected to result in, any Controlled Group Liability that would be a liability of Parent, any of its Subsidiaries or any of their respective ERISA Affiliates, (E) all payments required to be made by or with respect to each Parent Benefit Plan (including all contributions, insurance premiums or intercompany charges) with respect to all prior periods related trust. There have been timely made no terminations, partial terminations or paid discontinuances of contributions by Parent or its Subsidiaries in accordance with Earthstone to any qualified plan during the provisions of each of preceding six years without notice to and approval by the Parent Benefit Plans and applicable Law orIRS, to the extent not such notice to and approval by the IRS is required to be made or paid on or before the date hereof, have been reflected on the books and records of Parent in accordance with GAAP and (F) there by Applicable Law. There are no pending orclaims, lawsuits or actions relating to any Benefit Plan of Earthstone or its ERISA Affiliates (other than ordinary claims for benefits) and, to the knowledge Knowledge of ParentEarthstone, threatened claims by or on behalf of any Parent Benefit Plan, by any employee or beneficiary covered under any Parent none are threatened. No Benefit Plan of Earthstone or otherwise involving any Parent Benefit Plan or any trusts related thereto (other than routine claims for benefits).
(iv) None of Parent, any of its Subsidiaries or any of their respective ERISA Affiliates 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 plan subject to Title IV or Section 302 of ERISA or Section 412 or Section 430 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 plan” (as defined in Section 3(37) of ERISA), or (C) any plan or arrangement which provides for post-employment or post-retirement retiree medical or welfare benefits for retired or former employees or beneficiaries or dependents thereofretiree life insurance benefits, except pursuant to as required under Section 4980B of the Code and subsequent guidance. Earthstone has not established or other applicable Law.
maintained, nor has any liability with respect to, any deferred compensation plan, program, or arrangement (vincluding any “nonqualified deferred compensation plan”) With respect to each Parent Benefit Plan that which is subject to Title IV or not in compliance with Section 302 of ERISA or Section 412 or 430 of the Code (each, a “Parent Title IV Plan”): (A) there does not exist any failure to meet the “minimum funding standard” of Section 412 of the Code or 302 of ERISA (whether or not waived), (B) no such plan is in “at-risk” status for purposes of Section 430 409A of the Code, (C) the present value of accrued benefits under such Parent Title IV Plan, based upon the actuarial assumptions used for funding purposes in the most recent actuarial report prepared by such Parent Title IV Plan’s actuary with respect to such Parent Title IV Plan, did not, as of its latest valuation date, exceed the then current fair market value of the assets of such Parent Title IV Plan allocable to such accrued benefits, (D) no reportable event within the meaning of Section 4043(c) of ERISA has occurred, (E) all premiums to the PBGC have been timely paid in full, (F) no liability (other than for premiums to the PBGC) under Title IV of ERISA has been or is expected to be incurred by Parent or any of its ERISA Affiliates, and (G) the PBGC has not instituted proceedings to terminate any such Parent Title IV Plan and, to the knowledge of Parent, no circumstances exist which could serve as a basis for the institution of such proceedings.
(vi) Except as set forth on Section 3.2(j)(vi) of the Parent Disclosure Letter, 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) increase any benefits otherwise payable or trigger any other obligation under any Parent Benefit Plan, (B) result in any acceleration of the time of payment, funding or vesting of any such benefits or (C) result in any limitation on the right of Parent or any of its Subsidiaries to amend, merge, terminate or receive a reversion of assets from any Parent Benefit Plan or related trust.
(vii) No Parent Benefit Plan provides for the gross-up or reimbursement of Taxes under Section 409A or 4999 of the Code or otherwise.
Appears in 2 contracts
Samples: Exchange Agreement (Earthstone Energy Inc), Exchange Agreement
Benefit Plans. (i) Section 3.2(j)(i3.2(i) of the Parent Company Disclosure Letter contains Schedule sets forth a true, true and complete and correct list of each material Company Benefit Plan. A “Company Benefit Plan” is a Benefit Plan sponsored(x) maintained, maintained entered into or contributed to by Parent or any of its Subsidiaries, or which Parent Company or any of its Subsidiaries is obligated to sponsor, maintain or contribute to, or with respect to under which Parent or its Subsidiaries otherwise has any liability (the “Parent Benefit Plans”). No Parent Benefit Plan is established or maintained outside of the United States or for the benefit of current present or former employees employee, director, independent contractor or consultant of Parent Company or any of its Subsidiaries residing outside has any present or future right to benefits or (y) under which Company or any of its Subsidiaries could reasonably be expected to have any present or future liability. No Company Benefit Plan is subject to Section 302 or Title IV of ERISA of section 412 of the United StatesCode. No Company Benefit Plan is a multiemployer plan, as defined in Section 3(37) of ERISA or a multiple employer welfare arrangement as defined in Section 3(40) of ERISA.
(ii) Parent With respect to each material Company Benefit Plan, Company has delivered or made available to the Company prior to the date of this Agreement Parent a truecurrent, correct accurate and complete copy of each Parent Benefit Plan currently in effect thereof, and, with respect thereto, if to the extent applicable, : (A) all amendments, the current any related trust (agreement or other funding vehicle) agreements, and the most recent summary plan descriptions, instrument; (B) the most recent annual report (Form 5500 series includingdetermination letter, where if 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 Parent Benefit Plan, ; (C) any summary plan description and summaries of material modifications; and (D) the most recent determination letter from the IRS (if applicable) for such Parent Benefit Plan year’s Form 5500 and (D) any notice to or from the IRS or any office or representative of the Department of Labor relating to any unresolved compliance issues in respect of such Parent Benefit Plan.
(iii) attached schedules and audited financial statements. Except as would not reasonably be expected to havehave a material adverse effect on Company, individually or in the aggregate, a Material Adverse Effect on Parent, (A) each Parent Company 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 thereunder, (B) each Parent Benefit Plan that is intended to be qualified under Section 401(a) of the Code is so qualified and the plan as currently in effect has received a favorable determination or opinion letter as to its qualifications that effect from the IRS Internal Revenue Service and Company is not aware of any reason why any such determination letter should be revoked or is entitled not be reissued. Each Company Benefit Plan has been maintained in compliance with its terms and with the requirements prescribed by any and all statutes, orders, rules and regulations, including ERISA and the Code, which are applicable to rely such Company Benefit Plan with such exceptions as would not be reasonable expected to have a material adverse effect on an advisory or opinion letter as to its qualifications issued Company. No events have occurred with respect to an IRS approved master any Company Benefit Plan that could result in payment or assessment by or against Company or any Company ERISA Affiliate (as defined in paragraph (v) below) of any excise taxes under Sections 4972, 4975, 4976, 4977, 4979, 4980B, 4980D, 4980E or 5000 of the Code with such exceptions as would not be reasonably expected to have a material adverse effect on Company.
(iii) With respect to the Company Benefit Plans, individually and prototype or volume submitter planin the aggregate, no event has occurred and there are exists no existing condition or set of circumstances in connection with which Company or any events that have occurred of its Subsidiaries could be subject to any liability that would reasonably be expected to adversely affect the qualified status of any such plan, (C) neither Parent nor any of its Subsidiaries has engaged in have a transaction that has resulted in, or would reasonably be expected to result inmaterial adverse effect on Company under ERISA, the assessment Code or any other applicable law.
(iv) There is no contract, plan or arrangement (whether or not written) covering any employee or former employee of a civil penalty upon Parent Company or any of its Subsidiaries that, individually or collectively, could give rise to the payment of any amount that would not be deductible pursuant to the terms of Section 409 280G or 502(i162(m) of the Code, as a result of the transactions contemplated hereby alone or together with any other event.
(v) Except as would not reasonably be expected to have a material adverse effect on Company or any of its Subsidiaries, (A) no liability under Title IV or section 302 of ERISA has been incurred by Company, or by any trade or business, whether or not incorporated, that together with Company would be deemed a “single employer” within the meaning of section 4001(b) of ERISA or (a tax imposed pursuant to Section 4975 or 4976 of the Code “Company ERISA Affiliate”), that has not been satisfied in full, and (DB) there does not now exist, nor, no condition exists that presents a risk to the knowledge of Parent, do any circumstances exist that would reasonably be expected to result in, any Controlled Group Liability that would be a liability of Parent, any of its Subsidiaries Company or any Company ERISA Affiliate of their respective ERISA Affiliates, (E) all payments required to be made by or with respect to each Parent Benefit Plan (including all contributions, insurance premiums or intercompany charges) with respect to all prior periods have been timely made or paid by Parent or its Subsidiaries in accordance with the provisions of each of the Parent 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 Parent in accordance with GAAP and (F) there are no pending or, to the knowledge of Parent, threatened claims by or on behalf of incurring any Parent Benefit Plan, by any employee or beneficiary covered under any Parent Benefit Plan or otherwise involving any Parent Benefit Plan or any trusts related thereto (other than routine claims for benefits)such liability.
(ivvi) None of Parent, any of its Subsidiaries There is no current or any of their respective ERISA Affiliates 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 projected liability in connection with: (A) a plan subject to Title IV or Section 302 respect of ERISA or Section 412 or Section 430 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 plan” (as defined in Section 3(37) of ERISA), or (C) any plan or arrangement which provides for post-employment or post-retirement health or medical or welfare life insurance benefits for retired retired, former or former current employees of Company or beneficiaries or dependents thereofits Subsidiaries, except pursuant as required to avoid excise tax under Section 4980B of the Code or other applicable Law.
(v) With respect to each Parent Benefit Plan that is subject to Title IV or Section 302 of ERISA or Section 412 or 430 of the Code (each, a “Parent Title IV Plan”): (A) there does not exist any failure to meet the “minimum funding standard” of Section 412 of the Code or 302 of ERISA (whether or not waived), (B) no such plan is in “at-risk” status for purposes of Section 430 of the Code, (C) the present value of accrued benefits under such Parent Title IV Plan, based upon the actuarial assumptions used for funding purposes in the most recent actuarial report prepared by such Parent Title IV Plan’s actuary with respect to such Parent Title IV Plan, did not, as of its latest valuation date, exceed the then current fair market value of the assets of such Parent Title IV Plan allocable to such accrued benefits, (D) no reportable event within the meaning of Section 4043(c) of ERISA has occurred, (E) all premiums to the PBGC have been timely paid in full, (F) no liability (other than for premiums to the PBGC) under Title IV of ERISA has been or is expected to be incurred by Parent or any of its ERISA Affiliates, and (G) the PBGC has not instituted proceedings to terminate any such Parent Title IV Plan and, to the knowledge of Parent, no circumstances exist which could serve as a basis for the institution of such proceedings.
(vi) Except as set forth on Section 3.2(j)(vi) of the Parent Disclosure Letter, 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) increase any benefits otherwise payable or trigger any other obligation under any Parent Benefit Plan, (B) result in any acceleration of the time of payment, funding or vesting of any such benefits or (C) result in any limitation on the right of Parent or any of its Subsidiaries to amend, merge, terminate or receive a reversion of assets from any Parent Benefit Plan or related trust.
(vii) No Parent All contributions and payments due under each Company Benefit Plan provides Plan, determined in accordance with prior funding and accrual practices, as adjusted to include proportional accruals for the gross-up period ending on the Effective Time, will be discharged and paid on or reimbursement of Taxes under Section 409A or 4999 of prior to the Code or otherwiseEffective Time except to the extent accrued as a liability in accordance with ordinary Company practice.
Appears in 2 contracts
Samples: Merger Agreement (Traffix Inc), Merger Agreement (New Motion, Inc.)
Benefit Plans. (i) Section 3.2(j)(i) With respect to the McKesson Benefit Plans, to the knowledge of the Parent Disclosure Letter contains a trueMcKesson, complete no event has occurred and correct list there exists no condition or set of each Benefit Plan sponsoredcircumstances, maintained or contributed by Parent in connection with which McKesson or any of its Subsidiariessubsidiaries would be subject to any liability that individually or in the aggregate would have a material adverse effect on McKesson under the Employee Retirement Income Security Act of 1974, or which Parent as amended ("ERISA"), the Code or any of its Subsidiaries is obligated to sponsor, maintain or contribute to, or with respect to which Parent or its Subsidiaries otherwise has any liability (the “Parent Benefit Plans”). No Parent Benefit Plan is established or maintained outside of the United States or for the benefit of current or former employees of Parent or any of its Subsidiaries residing outside of the United Statesother applicable law.
(ii) Parent has delivered or made available to the Company prior to the date of this Agreement a true, correct and complete copy of each Parent Each McKesson Benefit Plan currently has been administered in effect andaccordance with its terms, with respect thereto, if applicable, (A) all amendments, the current trust (or other funding vehicle) agreements, and the most recent summary plan descriptions, (B) 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 except for any failures so to such Parent Benefit Plan, (C) the most recent determination letter from the IRS (if applicable) for such Parent administer any McKesson Benefit Plan and (D) any notice to or from the IRS or any office or representative of the Department of Labor relating to any unresolved compliance issues in respect of such Parent Benefit Plan.
(iii) Except as would not reasonably be expected to have, that individually or in the aggregateaggregate would not have a material adverse effect on McKesson. To the knowledge of McKesson, a Material Adverse Effect on Parentthe McKesson Benefit Plans have been operated, (A) each Parent Benefit Plan has been maintained and administered are, in compliance with its terms and with the applicable Lawprovisions of ERISA, including, but not limited to, ERISA and the Code and all other applicable laws and the terms of all applicable collective bargaining agreements, except for any failures to be in each case such compliance that individually or in the regulations thereunder, (B) each Parent aggregate would not have a material adverse effect on McKesson. Each McKesson Benefit Plan that is intended to be qualified under Section 401(a) or 401(k) of the Code has received a favorable determination or opinion letter as from the Internal Revenue Service ("IRS") that it is so qualified and each trust established in connection with any McKesson Benefit Plan that is intended to its qualifications be exempt from federal income taxation under Section 501(a) of the Code has received a determination letter from the IRS that such trust is so exempt. To the knowledge of McKesson, no fact or event has occurred since the date of any determination letter from the IRS which is entitled reasonably likely to rely on an advisory or opinion letter as to its qualifications 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 affect adversely affect the qualified status of any such plan, (C) neither Parent nor any of its Subsidiaries has engaged in a transaction that has resulted in, or would reasonably be expected to result in, the assessment of a civil penalty upon Parent or any of its Subsidiaries pursuant to Section 409 or 502(i) of ERISA or a tax imposed pursuant to Section 4975 or 4976 of the Code that has not been satisfied in full, (D) there does not now exist, nor, to the knowledge of Parent, do any circumstances exist that would reasonably be expected to result in, any Controlled Group Liability that would be a liability of Parent, any of its Subsidiaries or any of their respective ERISA Affiliates, (E) all payments required to be made by or with respect to each Parent Benefit Plan (including all contributions, insurance premiums or intercompany charges) with respect to all prior periods have been timely made or paid by Parent or its Subsidiaries in accordance with the provisions of each of the Parent 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 Parent in accordance with GAAP and (F) there are no pending or, to the knowledge of Parent, threatened claims by or on behalf of any Parent Benefit Plan, by any employee or beneficiary covered under any Parent McKesson Benefit Plan or otherwise involving the exempt status of any Parent Benefit Plan or any trusts related thereto (other than routine claims for benefits)such trust.
(iviii) None of Parent, any of its Subsidiaries or any of their respective ERISA Affiliates maintains, contributes to, or participates in, or has ever during With respect to the past six (6) years maintained, contributed to, or participated in, or otherwise has any obligation or liability in connection with: (A) a plan McKesson Benefit Plans which are defined benefit plans and subject to Title IV or Section 302 of ERISA or Section 412 or Section 430 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 “other than any "multiemployer plan” (plans" as defined in Section 3(37) of ERISA), or (C) any plan or arrangement which provides for post-employment or post-retirement medical or welfare benefits for retired or former employees or beneficiaries or dependents thereof, except pursuant to Section 4980B of the Code or other applicable Law.
(v) With respect to each Parent Benefit Plan that is subject to Title IV or Section 302 of ERISA or Section 412 or 430 of the Code (each, a “Parent Title IV Plan”): (A) there does not exist any failure to meet the “minimum funding standard” of Section 412 of the Code or 302 of ERISA (whether or not waived), (B) no such plan is in “at-risk” status for purposes of Section 430 of the Code, (C) the present value of accrued benefits under such Parent Title IV Plan, based upon the actuarial assumptions used for funding purposes in the most recent actuarial report prepared by such Parent Title IV Plan’s actuary with respect to such Parent Title IV Plan, did not, as of its latest valuation date, exceed the then current aggregate fair market value of the assets of such Parent Title IV plans as of January 1, 1998 was approximately $294 million. Since January 1, 1998, there has been no material adverse change in the funded status of any such plans.
(iv) Each McKesson Benefit Plan allocable that is a "multiemployer plan" is set forth on Section 3.1(j)(iii) of the McKesson Disclosure Schedule. With respect to such accrued benefitsany McKesson Benefit Plan that is a multiemployer plan, (DA) no reportable event within the meaning of Section 4043(c) of ERISA has occurred, (E) all premiums to the PBGC have been timely paid in full, (F) no liability (other than for premiums to the PBGC) under Title IV of ERISA has been or is expected to be incurred by Parent or neither McKesson nor any of its ERISA Affiliatessubsidiaries has any material contingent liability under Section 4204 of ERISA, and (G) the PBGC has not instituted proceedings to terminate any such Parent Title IV Plan and, to the knowledge of ParentMcKesson, no circumstances exist that would result in any such plan entering into a reorganization, and (B) the aggregate withdrawal liability of McKesson and its subsidiaries, computed as if a complete withdrawal by McKesson and any of its subsidiaries had occurred under each such McKesson Benefit Plan on the date hereof, would not exceed $15 million.
(v) No McKesson Benefit Plan provides medical benefits (whether or not insured), with respect to current or former employees after retirement or other termination of service (other than coverage mandated by applicable law or benefits, the full cost of which could serve as a basis for is borne by the institution current or former employee) other than individual arrangements the amounts of such proceedingswhich are not material.
(vi) Except as set forth on Section 3.2(j)(vi) McKesson has previously provided to HBO a copy of each collective bargaining or other labor union contract applicable to persons employed by McKesson or any of its subsidiaries to which McKesson or any of its subsidiaries is a party. No collective bargaining agreement is being negotiated or renegotiated by McKesson or any of its subsidiaries. As of the Parent Disclosure Letter, neither the execution and delivery date of this Agreement nor Agreement, there is no labor dispute, strike or work stoppage against McKesson or any of its subsidiaries pending or, to the consummation knowledge of McKesson, threatened which may interfere with the respective business activities of McKesson or any of its subsidiaries, except where such dispute, strike or work stoppage individually or in the aggregate would not have a material adverse effect on McKesson. As of the date of this Agreement, to the knowledge of McKesson, none of McKesson, any of its subsidiaries or any of their respective representatives or employees has committed any material unfair labor practice in connection with the operation of the respective businesses of McKesson or any of its subsidiaries, and there is no material charge or complaint against McKesson or any of its subsidiaries by the National Labor Relations Board or any comparable governmental agency pending or threatened in writing.
(vii) No employee of McKesson will be entitled to any material payment, additional benefits or any acceleration of the time of payment or vesting of any benefits under any McKesson Benefit Plan as a result of the transactions contemplated hereby by this Agreement (either alone or in conjunction with any other event) event such as a termination of employment), except that substantially all McKesson Employee Stock Options will (A) increase any benefits otherwise payable or trigger any other obligation under any Parent Benefit Plan, (B) result in any acceleration vest as of the time of payment, funding or vesting of any such benefits or (C) result in any limitation date on the right of Parent or any of its Subsidiaries to amend, merge, terminate or receive a reversion of assets from any Parent Benefit Plan or related trustwhich McKesson Stockholder Approval is obtained.
(viiviii) No Parent material oral or written representation or commitment with respect to any aspect of any McKesson Benefit Plan provides has been or will be made to employees of McKesson or any McKesson subsidiaries by an authorized McKesson employee prior to the Closing Date that is not materially in accordance with the written or otherwise preexisting terms and provisions of such McKesson Benefit Plans in effect immediately prior to the Closing Date.
(ix) Except such as would not have a material adverse effect, there are no material unresolved claims or disputes under the terms of, or in connection with, any McKesson Benefit Plan (other than routine undisputed claims for benefits), and no action, legal or otherwise, has been commenced with respect to any material claim.
(x) To the grossknowledge of McKesson, no non-up or reimbursement exempt "prohibited transaction" (within the meaning of Taxes under Section 409A or 4999 4975(c) of the Code Tax Code) involving any McKesson Benefit Plan has occurred that could subject McKesson to any material tax penalty or other cost or liability (by indemnification or otherwise).
Appears in 2 contracts
Samples: Merger Agreement (McKesson Corp), Merger Agreement (Hbo & Co)
Benefit Plans. (i) Section 3.2(j)(i3.1(j)(i) of the Parent VEREIT Disclosure Letter contains a true, complete and correct list of each material Benefit Plan sponsored, maintained or contributed to by Parent VEREIT or any of its Subsidiaries, or which Parent VEREIT or any of its Subsidiaries is obligated to sponsor, maintain or contribute to, other than any plan or with respect program maintained by a Governmental Entity to which Parent VEREIT or its Subsidiaries otherwise has any liability contribute pursuant to applicable Law (the “Parent VEREIT Benefit Plans”). No Parent VEREIT Benefit Plan is established or maintained outside of the United States or for the benefit of current or former employees employees, directors or individual independent contractors of Parent VEREIT or any of its Subsidiaries residing outside of the United States.
(ii) Parent VEREIT has delivered or made available to the Company prior to the date of this Agreement Realty Income a true, correct and complete copy of each Parent VEREIT Benefit Plan currently in effect and, with respect thereto, if applicable, (A) all amendments, the current trust (or other funding vehicle) agreements, and the most recent summary plan descriptionsdescriptions and insurance Contracts, (B) the most recent annual report (Form 5500 series including, where applicable, all schedules and actuarial and accountants’ reports) filed with the Department of Labor IRS and the most recent actuarial report or other financial statement relating to such Parent VEREIT Benefit Plan, (C) the most recent determination or opinion letter from the IRS (if applicable) for such Parent VEREIT Benefit Plan and (D) any notice to or from the IRS or any office or representative Representative of the Department of Labor relating to any unresolved compliance issues in respect of such Parent VEREIT Benefit Plan.
(iii) Except as would not have, or would not reasonably be expected to have, individually or in the aggregate, a VEREIT Material Adverse Effect on ParentEffect, (A) each Parent VEREIT 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 Parent VEREIT Benefit Plan intended to be qualified under Section 401(a) of the Code has received a favorable determination or opinion letter as to its qualifications qualification from the IRS or is entitled to rely on an advisory or opinion letter as to its qualifications 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 adversely affect the qualified status of any such plan, (C) neither Parent VEREIT nor any of its Subsidiaries has engaged in a transaction that has resulted in, or would reasonably be expected to could result in, the assessment of a civil penalty upon Parent VEREIT or any of its Subsidiaries pursuant to Section 409 or 502(i) of ERISA or a tax Tax imposed pursuant to Section 4975 or 4976 of the Code that has not been satisfied in full, (D) there does not now exist, nor, to the knowledge of Parent, nor do any circumstances exist that would reasonably be expected to result in, any Controlled Group Liability that would be a liability of Parent, VEREIT or any of its Subsidiaries or any of their respective ERISA AffiliatesSubsidiaries, (E) all payments required to be made by or with respect to each Parent VEREIT Benefit Plan (including all contributions, insurance premiums or intercompany charges) with respect to all prior periods have been timely made or paid by Parent VEREIT or its Subsidiaries in accordance with the provisions of each of the Parent VEREIT 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 Parent in accordance with GAAP and (F) there are no pending or, to the knowledge of ParentVEREIT’s knowledge, threatened claims by or on behalf of any Parent VEREIT Benefit Plan, by any employee or beneficiary covered under any Parent VEREIT Benefit Plan or otherwise involving any Parent VEREIT Benefit Plan or any trusts related thereto (other than routine claims for benefits).
(iv) None of ParentVEREIT, any of its Subsidiaries or any other entity (whether or not incorporated) that, together with VEREIT or a Subsidiary of their respective ERISA Affiliates VEREIT, 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 withwith respect to: (A) a plan subject to Title IV or Section 302 of ERISA or Section 412 or Section 430 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 plan” (as defined in Section 3(37) of ERISA), or (C) any plan or arrangement which provides for post-employment or post-retirement retiree medical or welfare benefits for retired or former employees or beneficiaries or dependents thereofbenefits, except pursuant to Section 4980B of the Code or other as required by applicable Law.
(v) With respect to each Parent Benefit Plan that is subject to Title IV or Section 302 of ERISA or Section 412 or 430 of the Code (each, a “Parent Title IV Plan”): (A) there does not exist any failure to meet the “minimum funding standard” of Section 412 of the Code or 302 of ERISA (whether or not waived), (B) no such plan is in “at-risk” status for purposes of Section 430 of the Code, (C) the present value of accrued benefits under such Parent Title IV Plan, based upon the actuarial assumptions used for funding purposes in the most recent actuarial report prepared by such Parent Title IV Plan’s actuary with respect to such Parent Title IV Plan, did not, as of its latest valuation date, exceed the then current fair market value of the assets of such Parent Title IV Plan allocable to such accrued benefits, (D) no reportable event within the meaning of Section 4043(c) of ERISA has occurred, (E) all premiums to the PBGC have been timely paid in full, (F) no liability (other than for premiums to the PBGC) under Title IV of ERISA has been or is expected to be incurred by Parent or any of its ERISA Affiliates, and (G) the PBGC has not instituted proceedings to terminate any such Parent Title IV Plan and, to the knowledge of Parent, no circumstances exist which could serve as a basis for the institution of such proceedings.
(vi) Except as set forth on in Section 3.2(j)(vi3.1(j)(v) of the Parent VEREIT Disclosure Letter, 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, employee or other service provider of VEREIT or any of its Subsidiaries under any VEREIT Benefit Plan or otherwise, (B) increase any benefits otherwise payable or trigger any other obligation under any Parent VEREIT Benefit Plan, (BC) result in any acceleration of the time of payment, funding or vesting of any such benefits or (CD) result in any limitation on the right of Parent VEREIT or any of its Subsidiaries to amend, merge, terminate or receive a reversion of assets from any Parent VEREIT Benefit Plan or related trust.
(vii) . No Parent VEREIT Benefit Plan provides for for, and neither VEREIT nor any of its Subsidiaries is otherwise obligated to provide, the gross-up or reimbursement of Taxes under Section 409A or 4999 of the Code or otherwiseCode.
Appears in 2 contracts
Samples: Merger Agreement (Realty Income Corp), Merger Agreement (VEREIT Operating Partnership, L.P.)
Benefit Plans. (i) Section 3.2(j)(i4.1(j)(i) of the Parent Company Disclosure Letter contains sets forth a true, true and complete and correct list of each material Company Benefit Plan sponsoredor, maintained in the case of employment or contributed by Parent offer letters or agreements, forms thereof that are substantially the same as any of its Subsidiaries, or which Parent or any of its Subsidiaries is obligated to sponsor, maintain or contribute to, or with individual agreements. With respect to which Parent or its Subsidiaries otherwise has any liability (the “Parent each material Company Benefit Plans”). No Parent Benefit Plan is established or maintained outside of the United States or for the benefit of current or former employees of Parent or any of its Subsidiaries residing outside of the United States.
(ii) Parent has delivered or made available to Plan, the Company prior has made available, upon request, to the date Parent complete and accurate copies of this Agreement a true, correct and complete copy of each Parent Benefit Plan currently in effect and, with respect thereto, if applicable, (A) all amendmentssuch Company Benefit Plan and, to the current trust (or other funding vehicle) agreementsextent applicable, and the most recent summary plan descriptionsdescription thereof, (B) the most recent annual report (Form 5500 series includingeach trust, where applicableinsurance, all schedules and actuarial and accountants’ reports) filed with the Department of Labor and the most recent actuarial report annuity or other financial statement relating to such Parent Benefit Planfunding contract related thereto, (C) the most recent determination letter from the IRS (if applicable) for such Parent Benefit Plan audited financial statements and actuarial or other valuation reports prepared with respect thereto, (D) any notice the most recent annual report on Form 5500 required to be filed with the Internal Revenue Service (the “IRS”) with respect thereto and (E) the most recently received IRS determination letter or from the IRS or any office or representative of the Department of Labor relating to any unresolved compliance issues in respect of such Parent Benefit Planopinion, if applicable.
(iiiii) Except as would not reasonably be expected to haveas, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect on Parentthe Company, (A) each Parent of the Company Benefit Plan Plans has been maintained operated and administered in compliance with its terms and in accordance with applicable LawApplicable Laws, includingincluding ERISA, but not limited to, ERISA and the Code and in each case the regulations thereunder, ; (B) each Parent no Company Benefit Plan provides welfare benefits, including death or medical benefits (whether or not insured), with respect to current or former employees or directors of the Company 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 the Company or its subsidiaries as of the Effective Time pursuant to each Company 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 the Company nor any of its subsidiaries has engaged in a transaction in connection with which the Company 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 the Company, 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 Company Benefit Plans or any trusts related thereto.
(iii) Except as set forth on Section 4.1(j)(iii) of the Company Disclosure Letter, none of the Company, any of its subsidiaries or any of 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 none of the Company, any of its subsidiaries or any of their respective ERISA Affiliates has, within the preceding six years, withdrawn in a complete or partial withdrawal from any Multiemployer Plan or incurred any liability under Section 4202 of ERISA.
(iv) Except as, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect on the Company, each of the Company Benefit Plans intended to be qualified under “qualified” within the meaning of Section 401(a) of the Code has received a favorable determination or opinion letter as to its qualifications from the IRS or Code, (A) is entitled to rely on an advisory or opinion letter as to its qualifications issued with respect to an IRS approved master and prototype or volume submitter plan, so qualified and there are no existing circumstances or any events that have occurred that would reasonably be expected to adversely affect the qualified status of any such plan, (C) neither Parent nor any of its Subsidiaries has engaged in a transaction that has resulted in, or would reasonably be expected to result in, the assessment of a civil penalty upon Parent or any of its Subsidiaries pursuant to Section 409 or 502(i) of ERISA or a tax imposed pursuant to Section 4975 or 4976 of the Code that has not been satisfied in full, (D) there does not now exist, nor, to the knowledge of Parent, do any circumstances exist that would reasonably be expected to result in, any Controlled Group Liability that would be a liability of Parent, any of its Subsidiaries or any of their respective ERISA Affiliates, (E) all payments required to be made by or with respect to each Parent Benefit Plan (including all contributions, insurance premiums or intercompany charges) with respect to all prior periods have been timely made or paid by Parent or its Subsidiaries in accordance with the provisions of each of the Parent Benefit Plans plan 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 Parent in accordance with GAAP and (F) there are no pending or, to the knowledge of Parent, threatened claims by or on behalf of any Parent Benefit Plan, by any employee or beneficiary covered under any Parent Benefit Plan or otherwise involving any Parent Benefit Plan or any trusts related thereto (other than routine claims for benefits).
(iv) None of Parent, any of its Subsidiaries or any of their respective ERISA Affiliates 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 plan subject to Title IV or Section 302 of ERISA or Section 412 or Section 430 of the Code, (B) has received a “multiple employer welfare arrangement” (favorable determination letter or opinion letter as defined in Section 3(40) of ERISA), a “multiple employer plan” (as defined in Section 413(c) of the Code) or a “multiemployer plan” (as defined in Section 3(37) of ERISA), or (C) any plan or arrangement which provides for post-employment or post-retirement medical or welfare benefits for retired or former employees or beneficiaries or dependents thereof, except pursuant to Section 4980B of the Code or other applicable Lawits qualification.
(v) With respect to Section 4.1(j)(v) of the Company Disclosure Letter sets forth each Parent Company Benefit Plan that is subject to Section 302 or Title IV or Section 302 of ERISA or Section 412 412, 430 or 430 4971 of the Code (each, a “Parent Company Title IV Plan”): ). With respect to each Company Title IV Plan, except for matters that, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect on the Company, (A) there does not exist any failure to meet accumulated funding deficiency within the “minimum funding standard” meaning of Section 412 of the Code or Section 302 of ERISA (ERISA, whether or not waived), (B) no such plan Company Title IV Plan is currently in “at-at risk” status for purposes within the meaning of Section 430 of the CodeCode or Section 303(i) of ERISA, (C) the present value of accrued benefits under such Parent Title IV Plan, based upon the actuarial assumptions used for funding purposes in the most recent actuarial report prepared by such Parent Title IV Plan’s actuary with respect to such Parent Title IV Plan, did not, as of its latest valuation date, exceed the then current fair market value of the assets of such Parent 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, (D) none of the Company, 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 Pension Benefit Guaranty Corporation (the “PBGC”) have been timely paid in full, (F) no liability (other than for premiums to the PBGC) under Title IV of ERISA has been or or, to the knowledge of the Company, is expected to be incurred by Parent the Company or any of its ERISA Affiliates, subsidiaries and (G) the PBGC has not instituted proceedings to terminate any such Parent Company Title IV Plan. Except for matters that, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect on the Company, 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 the Company, any of its subsidiaries or any of their respective ERISA Affiliates. Since January 1, 2019, there has not been any material change in any actuarial or other assumption used to calculate funding obligations with respect to any Company Title IV Plan, or any material change in the manner in which contributions to any Company Title IV Plan and, to are made or the knowledge of Parent, no circumstances exist basis on which could serve as a basis for the institution of such proceedingscontributions are determined.
(vi) Except as set forth on Section 3.2(j)(vi) of the Parent Disclosure Letter, neither Neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby Transactions (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 the Company or its subsidiaries under any Company Benefit Plan or otherwise, (B) increase any benefits otherwise payable or trigger any other obligation under any Parent Company Benefit Plan, Plan or (BC) result in any acceleration of the time of payment, funding or vesting of any such benefits or (C) result in any limitation on the right of Parent or any of its Subsidiaries to amend, merge, terminate or receive a reversion of assets from any Parent Benefit Plan or related trustbenefits.
(vii) No Parent Benefit Plan provides for the person is entitled to receive any additional payment (including any Tax gross-up or reimbursement other payment) from the Company or any of its subsidiaries as a result of the imposition of the excise Taxes under required by Section 409A 4999 or 4999 Section 4985 of the Code or otherwiseany Taxes required by Section 409A or Section 457A of the Code.
(viii) Except as, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect on the Company, all the Company 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 (IHS Markit Ltd.), Merger Agreement (S&P Global Inc.)
Benefit Plans. (i) Section 3.2(j)(i3.1(n)(i) of the Parent Company Disclosure Letter contains Schedule sets forth a true, complete and correct list of each Benefit Plan sponsored, maintained or contributed by Parent or any of the Company and its Subsidiaries. Except as set forth in the Company Disclosure Schedule, or which Parent or any the Benefit Plans of the Company and its Subsidiaries is obligated to sponsor, maintain or contribute to, or with respect to which Parent or its Subsidiaries otherwise has any liability (maintained within the “Parent Benefit Plans”). No Parent Benefit Plan is established or maintained outside jurisdiction of the United States or for are in compliance with all applicable requirements of the benefit Employee Retirement Income Security Act of current or former employees of Parent or any of its Subsidiaries residing 1974, as amended (“ERISA”), the Code and other applicable laws, except where the failure to so comply would not reasonably be expected to result in a Material Adverse Effect on the Company. Except where the failure to so comply would not reasonably be expected to result in a Material Adverse Effect on the Company, each Benefit Plan maintained outside the jurisdiction of the United States.
(ii) Parent States has delivered or made available to the Company prior to the date been established, maintained and administered in accordance with its terms and all applicable statutes, laws, ordinances, rules, orders, decrees and regulations of this Agreement a true, correct and complete copy of each Parent Benefit Plan currently in effect and, with respect thereto, if applicable, (A) all amendments, the current trust (or other funding vehicle) agreements, and the most recent summary plan descriptions, (B) 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 Parent Benefit Plan, (C) the most recent determination letter from the IRS (if applicable) for such Parent Benefit Plan and (D) any notice to or from the IRS or any office or representative of the Department of Labor relating to any unresolved compliance issues in respect of such Parent Benefit Plan.
(iii) Governmental Authority. Except as would not reasonably be expected to have, individually or result in the aggregate, a Material Adverse Effect on Parentthe Company, (A) each Parent 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 thereunder, (B) each Parent Benefit Plan intended to be qualified under Section 401(a) of the Code has received a favorable determination or opinion letter as to its qualifications from the IRS or is entitled to rely on an advisory or opinion letter as to its qualifications 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 adversely affect the qualified status of any such plan, (C) neither Parent nor any of its Subsidiaries has engaged in a transaction that has resulted in, or would reasonably be expected to result in, the assessment of a civil penalty upon Parent or any of its Subsidiaries pursuant to Section 409 or 502(i) of ERISA or a tax imposed pursuant to Section 4975 or 4976 of the Code that has not been satisfied in full, (D) there does not now exist, nor, to the knowledge of Parent, do any circumstances exist that would reasonably be expected to result in, any Controlled Group Liability that would be a liability of Parent, any of its Subsidiaries or any of their respective ERISA Affiliates, (E) all payments required to be made by or with respect to each Parent Benefit Plan (including all contributions, insurance premiums or intercompany charges) with respect to all prior periods have been timely made or paid by Parent or its Subsidiaries in accordance with the provisions of each of the Parent 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 Parent in accordance with GAAP and (F) there are no pending or, to the knowledge Knowledge of Parentthe Company, threatened claims by or on behalf and no pending or, to the Knowledge of the Company, threatened litigation with respect to any Parent Benefit Plan, by any employee or beneficiary covered under any Parent Benefit Plan or otherwise involving any Parent Benefit Plan or any trusts related thereto (of the Company, other than routine ordinary and usual claims for benefits).
(ivbenefits by participants and beneficiaries thereof. Except as set forth on Section 3.1(n)(ii) None of Parentthe Company Disclosure Schedule, neither the Company nor any of its Subsidiaries or has contributed to any of their respective ERISA Affiliates 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 multiemployer pension plan subject to Title IV or Section 302 of ERISA or Section 412 or Section 430 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 plan” (as defined in Section 3(37) of ERISA), or (C) any plan or arrangement which provides for post-employment or post-retirement medical or welfare benefits for retired or former employees or beneficiaries or dependents thereof, except pursuant to Section 4980B . None of the Code or other applicable Law.
(v) With respect to each Parent Benefit Plan that is subject to Title IV or Section 302 Company, any of its Subsidiaries nor any of their respective ERISA or Section 412 or 430 affiliates has incurred any material liability on account of the Code (each, a “Parent Title IV Plan”): partial withdrawal” or a “complete withdrawal” (A) there does not exist any failure to meet the “minimum funding standard” of Section 412 of the Code or 302 of ERISA (whether or not waived), (B) no such plan is in “at-risk” status for purposes of Section 430 of the Code, (C) the present value of accrued benefits under such Parent Title IV Plan, based upon the actuarial assumptions used for funding purposes in the most recent actuarial report prepared by such Parent Title IV Plan’s actuary with respect to such Parent Title IV Plan, did not, as of its latest valuation date, exceed the then current fair market value of the assets of such Parent Title IV Plan allocable to such accrued benefits, (D) no reportable event within the meaning of Section 4043(cERISA Sections 4205 and 4203, respectively) of ERISA from any multiemployer plan which has occurrednot been satisfied, (E) all premiums to the PBGC have been timely paid in full, (F) no such material liability (other than for premiums to the PBGC) under Title IV of ERISA has been or is expected to be incurred by Parent or any of its ERISA Affiliatesasserted, and (G) none of the PBGC Company, its Subsidiaries or ERISA affiliates has not instituted proceedings to terminate caused or created any such Parent Title IV Plan and, to the knowledge of Parent, no circumstances exist event which could serve as a basis for the institution of such proceedings.
(vi) Except as set forth on Section 3.2(j)(vi) of the Parent Disclosure Letter, 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) increase any benefits otherwise payable or trigger any other obligation under any Parent Benefit Plan, (B) result in any acceleration partial or complete withdrawal; and none of the time of paymentCompany, funding or vesting of any such benefits or (C) result in any limitation on the right of Parent or any of its Subsidiaries to amend, merge, terminate nor any of their respective ERISA affiliates has any material obligation or receive a reversion of assets from any Parent Benefit Plan or related trustmaterial liability described in ERISA Section 4204.
(vii) No Parent Benefit Plan provides for the gross-up or reimbursement of Taxes under Section 409A or 4999 of the Code or otherwise.
Appears in 2 contracts
Samples: Agreement and Plan of Merger, Agreement and Plan of Merger (Great Lakes Dredge & Dock Corp)
Benefit Plans. (i) The Company has Previously Disclosed or has previously filed as an exhibit to the SEC Document or made available to the Investor or its representative each of the following to which the Company or any Company Subsidiary is a party or subject: any plan, contract or understanding providing for any bonus, pension, option, deferred compensation, retirement payment, profit sharing welfare, severance, change in control, or fringe benefits or other compensation with respect to any present or former officer, director, employee or consultant of the Company or any Company Subsidiary (each, other than a Multiemployer Plan, a “Benefit Plan”), in each case, requiring aggregate annual payments or contributions by the Company and any of the Company Subsidiaries 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 Benefit Plans not Previously Disclosed or filed as an SEC Document do not exceed $3,000,000. Section 3.2(j)(i2.2(l) of the Parent Company Disclosure Letter contains Schedule sets forth a true, complete and correct list of each Benefit Plan sponsored, maintained or contributed by Parent or any of its Subsidiaries, or which Parent or any of its Subsidiaries is obligated to sponsor, maintain or contribute to, or with respect to which Parent or its Subsidiaries otherwise has any liability (the “Parent Benefit Plans”). No Parent Benefit Plan is established or maintained outside of the United States or for the benefit of current or former employees of Parent or any of its Subsidiaries residing outside of the United States.
(ii) Parent has delivered or made available to the Company prior to the date of this Agreement a true, correct and complete copy of each Parent Benefit Plan currently in effect and, with respect thereto, if applicable, (A) all amendments, the current trust (or other funding vehicle) agreements, and the most recent summary plan descriptions, (B) 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 Parent Benefit Plan, (C) the most recent determination letter from the IRS (if applicable) for such Parent Benefit Plan and (D) any notice to or from the IRS or any office or representative of the Department of Labor relating to any unresolved compliance issues in respect of such Parent Benefit Plan.
(iii) Except as would not reasonably be expected to havenot, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect on ParentEffect, (A) with respect to each Parent Benefit Plan has been maintained Plan, the Company and administered the Company Subsidiaries have complied, and are now in compliance with its terms and with applicable Lawwith, includingall provisions of the Employee Retirement Income Security Act of 1974, but not limited toas amended (“ERISA”), ERISA and the Code and in all Laws and regulations applicable to such Benefit Plans and each case the regulations thereunder, (B) each Parent Benefit Plan that is intended to be qualified under Section 401(a) of the Code has received a favorable determination or opinion letter as to its qualifications from the IRS or to the effect that such Benefit Plan is entitled to rely on an advisory or opinion letter as to its qualifications issued with respect to an IRS approved master so qualified and prototype or volume submitter planexempt from federal income taxes under Sections 401(a) and 501(a) of the Code, and there are no existing circumstances such determination letter has not been revoked and nothing has occurred, whether by action or any events failure to act, that have occurred that would could reasonably be expected to adversely affect cause the qualified status loss of any such plan, qualification; (B) each Benefit Plan has been administered in accordance with its terms including all requirements to make contributions; (C) neither Parent there is not now, nor any of its Subsidiaries has engaged in a transaction that has resulted in, or would reasonably be expected to result in, the assessment of a civil penalty upon Parent or any of its Subsidiaries pursuant to Section 409 or 502(i) of ERISA or a tax imposed pursuant to Section 4975 or 4976 of the Code that has not been satisfied in full, (D) there does not now exist, nor, to the knowledge of Parent, do any circumstances exist that would reasonably be expected are likely to result in, give rise to any Controlled Group Liability that would be a liability requirement for the posting of Parent, any of its Subsidiaries or any of their respective ERISA Affiliates, (E) all payments required to be made by or security with respect to each Parent a Benefit Plan (including all contributions, insurance premiums or intercompany charges) with respect to all prior periods have been timely made the imposition of any material liability or paid by Parent or its Subsidiaries in accordance with material lien on the provisions of each assets of the Parent Company or any Company Subsidiary under ERISA or the Code in respect of any Benefit Plans Plan, and applicable Law or, no liability (other than for premiums to the extent not required Pension Benefit Guaranty Corporation) under Title IV of ERISA or under Sections 412 or 4971 of the Code has been or is reasonably expected to be made incurred by the Company or paid on or before the date hereof, have been reflected on the books and records of Parent in accordance with GAAP and any Company Subsidiary; (FD) there are no pending or, to the knowledge of ParentCompany’s knowledge, threatened claims by or on behalf of any Parent Benefit Plan, by any employee or beneficiary covered under any Parent Benefit Plan or otherwise involving any Parent Benefit Plan or any trusts related thereto (other than routine claims for benefitsbenefits in the 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 the Company’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 the Company’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; and (G) the Company and each Company Subsidiary have reserved the right to amend, terminate or modify at any time all plans or arrangements providing for retiree health or life insurance coverage, and there have been no communications to employees or former employees which could reasonably be interpreted to promise or guarantee such employees or former employees any retiree health or life insurance or other retiree death benefits on a permanent basis, other than those retirement benefits provided for under the Company’s collective bargaining agreements.
(iii) None of the Company, any of the Subsidiaries or any other person or entity under common control with the Company within the meaning of Section 414(b), (c), (m) or (o) of the Code participates in, or is required to contribute to, any “multiemployer plan” (within the meaning of Section 3(37) of ERISA) (a “Multiemployer Plan”).
(iv) None of ParentExcept as would not, any of its Subsidiaries individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, each individual who performs services for the Company or any of their respective ERISA Affiliates maintains, contributes to, Company Subsidiary (other than through a contract with an entity other than the Company or participates in, or has ever during the past six (6any Company Subsidiary) years maintained, contributed to, or participated in, or otherwise has any obligation or liability in connection with: (A) a plan subject to Title IV or Section 302 of ERISA or Section 412 or Section 430 and who is not treated as an employee of the Code, (B) a “multiple employer welfare arrangement” (Company or any Company Subsidiary has been properly characterized as defined in Section 3(40) of ERISA), a “multiple employer plan” (as defined in Section 413(c) of the Code) or a “multiemployer plan” (as defined in Section 3(37) of ERISA), or (C) any plan or arrangement which provides not being an employee for post-employment or post-retirement medical or welfare benefits for retired or former employees or beneficiaries or dependents thereof, except pursuant to Section 4980B of the Code or other applicable Lawsuch purposes.
(v) With respect to each Parent Benefit Plan that is subject to Title IV or Section 302 of ERISA or Section 412 or 430 of the Code (each, a “Parent Title IV Plan”): (A) there does not exist any failure to meet the “minimum funding standard” of Section 412 of the Code or 302 of ERISA (whether or not waived), (B) no such plan is in “at-risk” status for purposes of Section 430 of the Code, (C) the present value of accrued benefits under such Parent Title IV Plan, based upon the actuarial assumptions used for funding purposes in the most recent actuarial report prepared by such Parent Title IV Plan’s actuary with respect to such Parent Title IV Plan, did not, as of its latest valuation date, exceed the then current fair market value of the assets of such Parent Title IV Plan allocable to such accrued benefits, (D) no reportable event within the meaning of Section 4043(c) of ERISA has occurred, (E) all premiums to the PBGC have been timely paid in full, (F) no liability (other than for premiums to the PBGC) under Title IV of ERISA has been or is expected to be incurred by Parent or any of its ERISA Affiliates, and (G) the PBGC has not instituted proceedings to terminate any such Parent Title IV Plan and, to the knowledge of Parent, no circumstances exist which could serve as a basis for the institution of such proceedings.
(vi) Except as set forth on Section 3.2(j)(vi) of the Parent Disclosure Letter, neither Neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby (either alone or in conjunction with any termination of employment or other event) will (A) result in any material 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 any current or former employee, officer or director of the Company or any Company Subsidiary under any Benefit Plan or otherwise, (B) limit or restrict the right of the Company or any Company Subsidiary to merge, amend or terminate any of the Benefit Plans, or (C) materially increase or accelerate or require the funding of any benefits otherwise payable or trigger any other obligation under any Parent Benefit Plan.
(vi) Except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, (A) no work stoppage involving the Company or any Company Subsidiary is pending or, to the knowledge of the Company, threatened; (B) result in neither the Company nor any acceleration Company Subsidiary is involved in, or threatened with or affected by, any labor dispute, arbitration, lawsuit or administrative proceeding that could affect the business of the time of payment, funding Company or vesting of any such benefits or Company Subsidiary; and (C) result employees of the Company and the Company Subsidiaries are not represented by any labor union nor are any collective bargaining agreements otherwise in any limitation on the right of Parent or any of its Subsidiaries effect with respect to amend, merge, terminate or receive a reversion of assets from any Parent Benefit Plan or related trustsuch employees.
(vii) No Parent Except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, with respect to each Benefit Plan provides that is maintained substantially for employees who are situated outside the gross-up or reimbursement of Taxes under Section 409A or 4999 United States (the “Foreign Plans”), (i) each Foreign Plan required to be registered has been registered and has been maintained in good standing with applicable regulatory authorities; and (ii) all Foreign Plans that are required to be funded are funded in accordance with applicable Laws, and with respect to all other Foreign Plans, adequate reserves therefor have been established on the accounting statements of the Code applicable Company or otherwiseCompany Subsidiary.
Appears in 2 contracts
Samples: Purchase Agreement (Moneygram International Inc), Purchase Agreement (Moneygram International Inc)
Benefit Plans. (i) Section 3.2(j)(i) of the Parent Disclosure Letter contains a true, correct and complete and correct list of each material Benefit Plan sponsored, maintained or contributed to by the Parent or any of its Subsidiaries, or which the Parent or any of its Subsidiaries is obligated to sponsor, maintain or contribute to, other than any plan or with respect program maintained by a Governmental Entity to which the Parent or its Subsidiaries otherwise has any liability is required to contribute to pursuant to applicable Law (the “Parent Benefit Plans”). No Parent Benefit Plan is established or maintained outside of the United States or for the benefit of current or former employees of Parent or any of its Subsidiaries residing outside of the United States.
(ii) Parent has delivered or made available to the Company prior to the date of this Agreement a true, correct and complete copy of each Parent Benefit Plan currently in effect as of the date hereof and, with respect thereto, if applicable, (A) all amendments, the current trust (or other funding vehicle) agreements, and the most recent summary plan descriptions, (B) 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 Parent Benefit Plan, (C) the most recent determination or opinion letter from the IRS (if applicable) for such Parent Benefit Plan and (D) any notice to or from the IRS or material correspondence with a Governmental Entity regarding any office or representative of the Department of Labor relating to any unresolved compliance issues in respect of such Parent Benefit Plan.
(iii) Except as would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect on ParentEffect, (A) each Parent 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 thereunder, (B) each Parent Benefit Plan intended to be qualified under Section 401(a) of the Code has received a favorable determination or is the subject of a favorable opinion letter from the IRS as to its qualifications from qualification, and, to the IRS or is entitled to rely on an advisory or opinion letter as to its qualifications issued with respect to an IRS approved master and prototype or volume submitter planknowledge of Parent, and there are no existing circumstances or any events that have occurred that would reasonably be expected to adversely affect the qualified status of any such plan, (C) neither Parent nor any of its Subsidiaries has engaged in a transaction that has resulted in, or would reasonably be expected to result in, the assessment of a civil penalty upon Parent or any of its Subsidiaries pursuant to Section 409 or Section 502(i) of ERISA or a tax imposed pursuant to Section 4975 or 4976 of the Code that has not been satisfied in fullCode, (D) there does not now exist, nor, to the knowledge of Parent, do any circumstances exist that would reasonably be expected to result in, any Controlled Group Liability that would be a liability of Parent, any of its Subsidiaries or any of their respective ERISA Affiliates, (E) all payments required to be made by or with respect to each Parent Benefit Plan (including all contributions, insurance premiums or intercompany charges) with respect to all periods ending prior periods to the date hereof have been timely made or paid by Parent or its Subsidiaries in accordance with the provisions of each of the Parent 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 Parent in accordance with GAAP and (F) there are no pending or, to the knowledge of Parent, threatened claims by or on behalf of any Parent Benefit Plan, by any employee or beneficiary covered under any Parent Benefit Plan or otherwise involving any Parent Benefit Plan or any trusts related thereto (other than routine claims for benefits).
(iv) None of Parent, any of its Subsidiaries or any of their respective ERISA Affiliates Affiliates, 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 plan subject to Title IV or Section 302 of ERISA or Section 412 or Section 430 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 plan” (as defined in Section 3(37) of ERISA), or (C) any plan or arrangement which provides for post-employment or post-retirement medical or welfare benefits for retired or former employees or beneficiaries or dependents thereof, except pursuant to Section 4980B of the Code or other applicable LawLaw (or during any post-termination period during which the former employee is receiving severance).
(v) With respect to each Parent Benefit Plan that is subject to Title IV or Section 302 of ERISA or Section 412 or 430 of the Code (each, a “Parent Title IV Plan”): (A) there does not exist any failure to meet the “minimum funding standard” of Section 412 of the Code or 302 of ERISA (whether or not waived), (B) no such plan is in “at-risk” status for purposes of Section 430 of the Code, (C) the present value of accrued benefits under such Parent Title IV Plan, based upon the actuarial assumptions used for funding purposes in the most recent actuarial report prepared by such Parent Title IV Plan’s actuary with respect to such Parent Title IV Plan, did not, as of its latest valuation date, exceed the then current fair market value of the assets of such Parent Title IV Plan allocable to such accrued benefits, (D) no reportable event within the meaning of Section 4043(c) of ERISA has occurred, (E) all premiums to the PBGC have been timely paid in full, (F) no liability (other than for premiums to the PBGC) under Title IV of ERISA has been or is expected to be incurred by Parent or any of its ERISA Affiliates, and (G) the PBGC has not instituted proceedings to terminate any such Parent Title IV Plan and, to the knowledge of Parent, no circumstances exist which could serve as a basis for the institution of such proceedings.
(vi) Except as set forth on Section 3.2(j)(vi) of the Parent Disclosure Letter, neither 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, “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 Parent or any of its Subsidiaries under any Parent Benefit Plan, (B) increase any benefits otherwise payable or trigger any other obligation under any Parent Benefit Plan, or (BC) result in any acceleration of the time of payment, funding or vesting of any such benefits or (C) result in any limitation on the right of Parent or any of its Subsidiaries to amend, merge, terminate or receive a reversion of assets from any Parent Benefit Plan or related trustbenefits.
(viivi) No Parent Benefit Plan provides for the gross-up or reimbursement of Taxes under Section 409A or Section 4999 of the Code or otherwise.
Appears in 2 contracts
Samples: Merger Agreement (Sabra Health Care REIT, Inc.), Merger Agreement (Care Capital Properties, Inc.)
Benefit Plans. (a) Set forth on Schedule 4.19(a) is a true and complete list of each material Benefit Plan of the Company (each, a “Company Benefit Plan”). With respect to each Company Benefit Plan, there are no funded benefit obligations for which contributions have not been made or properly accrued and there are no unfunded benefit obligations that have not been accounted for by reserves, or otherwise properly footnoted in accordance with GAAP on the Company Financials. The Company is not nor has it in the past six (6) years been a member of a “controlled group” for purposes of Section 414(b), (c), (m) or (o) of the Code, nor does the Company has any Liability with respect to any collectively-bargained for plans, whether or not subject to the provisions of ERISA. No statement, either written or oral, has been made by the Company to any Person with regard to any Company Benefit Plan that was not in accordance with the Company Benefit Plan in any material respect.
(b) Each Company Benefit Plan is and has been operated and administered at all times in compliance with all applicable Laws in all material respects, including ERISA and the Code. Each Company Benefit Plan which is intended to be “qualified” within the meaning of Section 401(a) of the Code (i) Section 3.2(j)(ihas been determined by the IRS to be so qualified (or is based on a prototype plan which has received a favorable opinion letter) of during the Parent Disclosure Letter contains a true, complete and correct list of each Benefit Plan sponsored, maintained or contributed by Parent or any of period from its Subsidiaries, or which Parent or any of its Subsidiaries is obligated to sponsor, maintain or contribute to, or with respect to which Parent or its Subsidiaries otherwise has any liability (the “Parent Benefit Plans”). No Parent Benefit Plan is established or maintained outside of the United States or for the benefit of current or former employees of Parent or any of its Subsidiaries residing outside of the United States.
(ii) Parent has delivered or made available to the Company prior adoption to the date of this Agreement a true, correct and complete copy of each Parent Benefit Plan currently in effect and, with respect thereto, if applicable, (A) all amendments, the current trust (or other funding vehicle) agreements, and the most recent summary plan descriptions, (B) 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 Parent Benefit Plan, (C) the most recent determination letter from the IRS (if applicable) for such Parent Benefit Plan and (Dii) any notice to or from the IRS or any office or representative of the Department of Labor relating to any unresolved compliance issues in respect of such Parent Benefit Plan.
(iii) Except as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on Parent, (A) each Parent Benefit Plan its related trust 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 thereunder, (B) each Parent Benefit Plan intended determined to be qualified exempt from taxation under Section 401(a501(a) of the Code or the Company has received a requested an initial favorable IRS determination or opinion letter as to its qualifications from of qualification and/or exemption within the IRS or is entitled to rely on an advisory or opinion letter as to its qualifications issued with respect to an IRS approved master and prototype or volume submitter planperiod permitted by applicable Law. To the Company’s Knowledge, and there are no existing circumstances or any events that have occurred that fact exists which would reasonably be expected to adversely affect the qualified status of any such plan, Company Benefit Plans or the exempt status of such trusts.
(Cc) neither Parent nor any of its Subsidiaries has engaged in a transaction that has resulted in, or would reasonably be expected to result in, the assessment of a civil penalty upon Parent or any of its Subsidiaries pursuant to Section 409 or 502(i) of ERISA or a tax imposed pursuant to Section 4975 or 4976 of the Code that has not been satisfied in full, (D) there does not now exist, nor, to the knowledge of Parent, do any circumstances exist that would reasonably be expected to result in, any Controlled Group Liability that would be a liability of Parent, any of its Subsidiaries or any of their respective ERISA Affiliates, (E) all payments required to be made by or with With respect to each Parent Company Benefit Plan which covers any current or former officer, director, consultant or employee (or beneficiary thereof) of the Company, the Company has provided to Purchaser accurate and complete copies, if applicable, of: (i) all Company Benefit Plan texts and agreements and related trust agreements or annuity Contracts (including any amendments, modifications or supplements thereto); (ii) all contributionssummary plan descriptions and material modifications thereto; (iii) the three (3) most recent Forms 5500, insurance premiums or intercompany chargesif applicable, and annual report, including all schedules thereto; (iv) the most recent annual and periodic accounting of plan assets; (v) the three (3) most recent nondiscrimination testing reports; (vi) the most recent determination letter received from the IRS, if any; (vii) the most recent actuarial valuation; and (viii) all material communications with any Governmental Authority.
(d) With respect to each Company Benefit Plan: (i) such Company Benefit Plan has been administered and enforced in all prior periods have been timely made or paid by Parent or its Subsidiaries material respects in accordance with its terms, the provisions Code and ERISA; (ii) no breach of each of the Parent Benefit Plans and applicable Law orfiduciary duty has occurred; (iii) no Action is pending, 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 Parent in accordance with GAAP and (F) there are no pending or, to the knowledge of ParentCompany’s Knowledge, threatened claims by or on behalf of any Parent Benefit Plan, by any employee or beneficiary covered under any Parent Benefit Plan or otherwise involving any Parent Benefit Plan or any trusts related thereto (other than routine claims for benefitsbenefits arising in the ordinary course of administration).
; (iv) None of Parentno prohibited transaction, any of its Subsidiaries or any of their respective ERISA Affiliates 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 as defined in connection with: (A) a plan subject to Title IV or Section 302 406 of ERISA or Section 412 or Section 430 4975 of the Code, has occurred, excluding transactions effected pursuant to a statutory or administration exemption; and (Bv) all contributions and premiums due through the Closing Date have been made in all material respects as required under ERISA or have been fully accrued in all material respects on the Company Financials.
(e) No Company Benefit Plan is a “multiple employer welfare arrangement” (as defined in Section 3(40) of ERISA), a “multiple employer benefit plan” (as defined in Section 413(c414(j) of the Code) or ), a “multiemployer plan” (as defined in Section 3(37) of ERISA)) or a “multiple employer plan” (as described in Section 413(c) of the Code) or is otherwise subject to Title IV of ERISA or Section 412 of the Code, and the Company has no Liability or otherwise could reasonably be expected to have any Liability, contingent or otherwise, under Title IV of ERISA and no condition presently exists that is expected to cause such Liability to be incurred. No Company Benefit Plan will become a multiple employer plan with respect to the Company immediately after the Closing Date. The Company does not currently maintain nor has in the past six (C6) years maintained, nor is required currently and has in the past six (6) years never been required to contribute to or otherwise participate in, a multiple employer welfare arrangement or voluntary employees’ beneficiary association as defined in Section 501(c)(9) of the Code.
(f) There is no arrangement under any Company Benefit Plan with respect to any employee that would result in the payment of any amount that by operation of Sections 280G of the Code would not be deductible by the Company and no arrangement exists pursuant to which the Company will be required to “gross up” or otherwise compensate any person because of the imposition of any excise tax on a payment to such person.
(g) With respect to each Company Benefit Plan which is a “welfare plan” (as described in Section 3(1) of ERISA): (i) no such plan or arrangement which provides for post-employment or post-retirement medical or welfare death benefits for retired with respect to current or former employees (or beneficiaries a dependent or beneficiary thereof) of the Company beyond their termination of employment (other than coverage mandated by Law, which is paid solely by such employees, dependents thereofor beneficiaries); and (ii) there are no reserves, except pursuant assets, surplus or prepaid premiums under any such plan. The Company has complied in all material respects with the provisions of Section 601 et seq. of ERISA and Section 4980B of the Code.
(h) The Company and each Company Benefit Plan that is a “group health plan” as defined in Section 733(a)(1) of ERISA (each, a “Health Plan”) is and has been for the past six (6) years in compliance, in all material respects, with the Patient Protection and Affordable Care Act of 2010, and, to the Knowledge of the Company, no event has occurred, and no condition or circumstance exists, that would subject the Company or any Health Plan to any material Liability for penalties or excise Taxes under Sections 4980D or 4980H of the Code.
(i) The consummation of the transactions contemplated by this Agreement and the Ancillary Documents will not: (i) entitle any individual to severance pay, unemployment compensation or other benefits or compensation; (ii) accelerate the time of payment or vesting, or increase the amount of any compensation due, or in respect of, any individual; or (iii) result in or satisfy a condition to the payment of compensation that would, in combination with any other payment, result in an “excess parachute payment” within the meaning of Section 280G of the Code. The Company has not incurred any Liability for any Tax imposed under Chapter 43 of the Code or civil liability under Section 502(i) or (l) of ERISA.
(j) Except to the extent required by Section 4980B of the Code or similar state Law, the Company provides no health or 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 applicable Lawtermination of employment or service.
(vk) With respect to each Parent Each Company Benefit Plan that is subject to Title IV or Section 302 of ERISA or Section 412 or 430 409A of the Code (eachhas been operated, a “Parent Title IV Plan”): (A) there does not exist any failure to meet administered and is in documentary compliance with the “minimum funding standard” applicable provisions of Section 412 of the Code or 302 of ERISA (whether or not waived), (B) no such plan is in “at-risk” status for purposes of Section 430 409A of the Code, (C) the present value of accrued benefits under such Parent Title IV Planregulations thereunder and other official guidance issued thereunder. There is no Contract or plan to which the Company is a party or by which it is bound to compensate any employee, based upon the actuarial assumptions used consultant or director for funding purposes in the most recent actuarial report prepared by such Parent Title IV Plan’s actuary with respect penalty taxes paid pursuant to such Parent Title IV Plan, did not, as of its latest valuation date, exceed the then current fair market value Section 409A of the assets of such Parent Title IV Plan allocable to such accrued benefits, (D) no reportable event within the meaning of Section 4043(c) of ERISA has occurred, (E) all premiums to the PBGC have been timely paid in full, (F) no liability (other than for premiums to the PBGC) under Title IV of ERISA has been or is expected to be incurred by Parent or any of its ERISA Affiliates, and (G) the PBGC has not instituted proceedings to terminate any such Parent Title IV Plan and, to the knowledge of Parent, no circumstances exist which could serve as a basis for the institution of such proceedingsCode.
(vi) Except as set forth on Section 3.2(j)(vi) of the Parent Disclosure Letter, 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) increase any benefits otherwise payable or trigger any other obligation under any Parent Benefit Plan, (B) result in any acceleration of the time of payment, funding or vesting of any such benefits or (C) result in any limitation on the right of Parent or any of its Subsidiaries to amend, merge, terminate or receive a reversion of assets from any Parent Benefit Plan or related trust.
(vii) No Parent Benefit Plan provides for the gross-up or reimbursement of Taxes under Section 409A or 4999 of the Code or otherwise.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Deep Medicine Acquisition Corp.)
Benefit Plans. Except as disclosed on Schedule 4.15 hereto:
(ia) Section 3.2(j)(i) of the Parent Disclosure Letter contains a true, complete and correct list of each Benefit Plan sponsored, maintained No Company maintains or contributed by Parent or contributes to any of its Subsidiaries, or which Parent or any of its Subsidiaries is obligated to sponsor, maintain or contribute to, or with respect to which Parent or its Subsidiaries otherwise has any liability (the “Parent Benefit Plans”). No Parent Benefit Plan is established or maintained outside of the United States or for the benefit of current or former employees of Parent or any of its Subsidiaries residing outside of the United States.
(iib) Parent has delivered or made available to the Company prior to the date of this Agreement a true, correct and complete copy of each Parent Benefit Plan currently in effect and, with respect thereto, if applicable, (A) all amendments, the current trust (or other funding vehicle) agreements, and the most recent summary plan descriptions, (B) 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 Parent Benefit Plan, (C) the most recent determination letter from the IRS (if applicable) for such Parent Benefit Plan and (D) any notice to or from the IRS or any office or representative of the Department of Labor relating to any unresolved compliance issues in respect of such Parent Benefit Plan.
(iii) Except as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on Parent, (A) each Parent Each Benefit Plan has been maintained and administered operated in compliance all material respects in accordance with its terms and with applicable Law, including, but not limited to, Applicable Law (including ERISA and the Code Code), the plan documents thereof and in each case the regulations thereundercollective bargaining agreements, (B) each Parent if any. Each Benefit Plan that is intended to be qualified under Section 401(a401 (a) of the Code has received a favorable determination or opinion letter as to its qualifications from the IRS or Internal Revenue Service indicating that such Benefit Plan is entitled to rely on an advisory or opinion letter as to its qualifications 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 adversely affect the so qualified status of any such plan, (C) neither Parent nor any of its Subsidiaries has engaged in a transaction that has resulted in, or would reasonably be expected to result in, the assessment of a civil penalty upon Parent or any of its Subsidiaries pursuant to Section 409 or 502(i) of ERISA or a tax imposed pursuant to Section 4975 or 4976 of the Code that has not been satisfied in full, (D) there does not now exist, norand, to the knowledge of ParentSeller, do nothing has occurred subsequent to the issuance of such determination letter which would cause such Benefit Plan to lose its qualified status. To the knowledge of Seller, no act or omission has occurred and no condition exists with respect to any circumstances exist Benefit Plans that would subject Purchaser to any fine, penalty, Tax or Liability, of any kind imposed under ERISA, the Code or other Applicable Law following the Closing.
(c) There are no material undisclosed liabilities in respect of the Benefit Plans with respect to which Purchaser reasonably could be expected to result in, any Controlled Group Liability that would be a liability of Parent, any of its Subsidiaries or any of their respective ERISA Affiliates, (E) all payments required to be made by or with respect to each Parent Benefit Plan (including all contributions, insurance premiums or intercompany charges) with respect to all prior periods have been timely made or paid by Parent or its Subsidiaries in accordance with the provisions of each of the Parent 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 Parent in accordance with GAAP and (F) there are no pending or, to the knowledge of Parent, threatened claims by or on behalf of any Parent Benefit Plan, by any employee or beneficiary covered under any Parent Benefit Plan or otherwise involving any Parent Benefit Plan or any trusts related thereto (other than routine claims for benefits)liable.
(ivd) None of ParentNo Company has contributed to any multi-employer plans, any of its Subsidiaries or any of their respective ERISA Affiliates 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 plan subject to Title IV or Section 302 of ERISA or Section 412 or Section 430 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 plan” (as defined in Section 3(37) of ERISA), that would subject Purchaser to any liability.
(e) There is no litigation or administrative or other proceedings involving any Benefit Plan, and no Company has received, subsequent to December 31, 2005, any written notice that any such proceeding is threatened, in each case that would have or reasonably would be expected to have a Material Adverse Effect.
(Cf) No employee or former employee of any plan Company will become entitled to any bonus, retirement, severance, job security or arrangement similar benefit or any enhanced benefit solely as a result of the transactions contemplated hereby and which is payable by any Company out of its general assets.
(g) None of the Benefit Plans provides for post-employment life or post-retirement medical health insurance, benefits or welfare benefits coverage for retired any Company Employee participant or former employees or beneficiaries or dependents thereofany Company Employee beneficiary of any Company Employee participant, except pursuant to as required under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”).
(h) To the knowledge of Seller, neither Seller, any Company, the Benefit Plans, nor any employee of the foregoing, nor any trustee, administrator or other fiduciary of a Benefit Plan has engaged in a “prohibited transaction” (as such term is defined in Section 4980B 4975 of the Code or other applicable LawSection 406 of ERISA) which could subject any party to the tax or penalty on prohibited transactions imposed by the Code or the sanctions imposed under Title 1 or ERISA.
(vi) With respect to each Parent To the knowledge of Seller, no Benefit Plan that is subject to Title IV or Section 302 of ERISA has incurred nor will the transactions contemplated by this Agreement give rise to any liability, contingent liability or Section 412 withdrawal liability to the Pension Benefit Guaranty Corporation other than for the payment of premiums, all of which have been paid when due. No Benefit Plan has applied for or 430 received a waiver of the minimum funding standards imposed by Code Section 412.
(eachj) To the knowledge of Seller, each Benefit Plan which is a “Parent Title IV non-qualified deferred compensation Plan”): ” (A) there does not exist any failure to meet the “minimum funding standard” of Section 412 of the Code or 302 of ERISA (whether or not waived), (B) no such plan is in “at-risk” status for purposes of Section 430 of the Code, (C) the present value of accrued benefits under such Parent Title IV Plan, based upon the actuarial assumptions used for funding purposes in the most recent actuarial report prepared by such Parent Title IV Plan’s actuary with respect to such Parent Title IV Plan, did not, as of its latest valuation date, exceed the then current fair market value of the assets of such Parent Title IV Plan allocable to such accrued benefits, (D) no reportable event within the meaning of Section 4043(c409A of the Code) of ERISA has occurred, (E) all premiums to the PBGC have been timely paid in full, (F) no liability (other than for premiums to the PBGC) under Title IV of ERISA has been or is expected to be incurred by Parent or any of its ERISA Affiliates, and (G) the PBGC has not instituted proceedings to terminate any such Parent Title IV Plan and, to the knowledge of Parent, no circumstances exist which could serve as a basis for the institution of such proceedings.
(vi) Except as set forth on Section 3.2(j)(vi) of the Parent Disclosure Letter, neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby (either alone or operated in conjunction compliance with any other event) will (A) increase any benefits otherwise payable or trigger any other obligation under any Parent Benefit Plan, (B) result in any acceleration of the time of payment, funding or vesting of any such benefits or (C) result in any limitation on the right of Parent or any of its Subsidiaries to amend, merge, terminate or receive a reversion of assets from any Parent Benefit Plan or related trust.
(vii) No Parent Benefit Plan provides for the gross-up or reimbursement of Taxes under Section 409A or 4999 of the Code or otherwiseand subsequent guidance.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Duquesne Light Holdings Inc)
Benefit Plans. (ia) Section 3.2(j)(iAll “employee benefit plans” (within the meaning of section 3(3) of the Parent Disclosure Letter contains a trueERISA) and all stock purchase, complete stock option, severance, employment, change-in-control, fringe benefit, bonus, incentive, deferred compensation and correct list all other employee benefit plans, agreements, programs, policies or other arrangements, whether or not subject to ERISA under which any employee, former employee, director, officer, independent contractor or consultant of each Benefit Plan sponsored, maintained or contributed by Parent or any of its Subsidiaries, or which Parent or any of its Subsidiaries is obligated to sponsor, maintain or contribute to, or with respect to which Parent Purchaser or its Subsidiaries otherwise has any present or future right to benefits or Purchaser or its Subsidiaries has any present or future liability (are referred to herein as the “Parent Benefit Purchaser Plans.”). No Parent Benefit Plan is established or maintained outside of the United States or for the benefit of current or former employees of Parent or any of its Subsidiaries residing outside of the United States.
(iib) Parent With respect to each material Purchaser Plan, to the extent requested by Company, Purchaser has delivered furnished or made available to the Company prior to the date of this Agreement Purchaser a truecurrent, correct accurate and complete copy of each Parent Benefit Plan currently in effect thereof and, with respect theretoto the extent applicable: (i) any related trust agreement or other funding instrument, (ii) the most recent determination or opinion letter of the IRS, if applicable, (Aiii) all amendments, the current trust (or other funding vehicle) agreements, and the most recent summary plan descriptionsdescription and (iv) for the most recent year (A) the Form 5500 and attached schedules, (B) the most recent annual report (Form 5500 series including, where applicable, all schedules audited financial statements and actuarial and accountants’ reports) filed with the Department of Labor and the most recent actuarial report or other financial statement relating to such Parent Benefit Plan, (C) the most recent determination letter from the IRS (if applicable) for such Parent Benefit Plan and (D) any notice to or from the IRS or any office or representative of the Department of Labor relating to any unresolved compliance issues in respect of such Parent Benefit Planactuarial valuation reports.
(iiic) Except as would not reasonably be expected With respect to haveeach Purchaser Plan, except to the extent that the inaccuracy of any of the representations set forth in this Section 4.10, individually or in the aggregate, have not had a Purchaser Material Adverse Effect on Parent, Effect:
(Ai) each Parent Benefit Purchaser Plan has been maintained established and administered in compliance accordance with its terms and in compliance with the applicable Law, including, but not limited to, provisions of ERISA and the Code Code, and in each case all contributions required to be made under the regulations thereunder, terms of any Purchaser Plan have been timely made;
(Bii) each Parent Benefit Purchaser Plan intended to be qualified under Section 401(a) of the Code (A) has received a favorable determination or determination, advisory and/or opinion letter letter, as to its qualifications applicable, from the IRS or that it is entitled so qualified and, to rely on an advisory or opinion the Knowledge of Purchaser, nothing has occurred since the date of such letter as to its qualifications 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 adversely affect cause the loss of such qualified status of such Purchaser Plan or (B) is a volume submitter or prototype plan whose sponsor obtained a favorable opinion letter and on which letter Purchaser is permitted to rely; and
(iii) there is no Action (including any such planinvestigation, (Caudit or other administrative proceeding) neither Parent nor by the Department of Labor, the PBGC, the IRS or any of its Subsidiaries has engaged in a transaction that has resulted inother Governmental Entity or by any plan participant or beneficiary pending, or would reasonably be expected to result in, the assessment of a civil penalty upon Parent or any of its Subsidiaries pursuant to Section 409 or 502(i) of ERISA or a tax imposed pursuant to Section 4975 or 4976 of the Code that has not been satisfied in full, (D) there does not now exist, nor, to the knowledge Knowledge of ParentPurchaser, do any circumstances exist that would reasonably be expected threatened, relating to result inPurchaser Plans, any Controlled Group Liability that would be a liability of Parent, any of its Subsidiaries or any of their respective ERISA Affiliates, (E) all payments required to be made by or fiduciaries thereof with respect to each Parent Benefit Plan (including all contributions, insurance premiums their duties to Purchaser Plans or intercompany charges) with respect to all prior periods have been timely made or paid by Parent or its Subsidiaries in accordance with the provisions assets of each any of the Parent 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 Parent in accordance with GAAP and (F) there are no pending or, to the knowledge of Parent, threatened claims by or on behalf of any Parent Benefit Plan, by any employee or beneficiary covered trusts under any Parent Benefit Plan or otherwise involving any Parent Benefit Plan or any trusts related thereto Purchaser Plans (other than routine claims for benefits)) nor, to the Knowledge of Purchaser, are there facts or circumstances that exist that could reasonably give rise to any such Actions.
(ivd) None No Purchaser Plan is subject to Title IV of Parent, ERISA or is a multiemployer plan under Subtitle E of Title IV of ERISA.
(e) No Purchaser Plan could cause the Purchaser or any of its Subsidiaries to incur any current or any of their respective ERISA Affiliates 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 projected liability in connection with: (A) a plan subject to Title IV or Section 302 respect of ERISA or Section 412 or Section 430 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 plan” (as defined in Section 3(37) of ERISA), or (C) any plan or arrangement which provides for post-employment or post-retirement medical health, medical, or welfare life insurance benefits for current, former, or retired employees of the Purchaser or former employees any of its Subsidiaries (except as may be required under individual employment agreements, which would not, individually or beneficiaries in the aggregate, have a Purchaser Material Adverse Effect, and except as may be required under individual employment agreements, which would not, individually or dependents thereofin the aggregate, have a Purchaser Material Adverse Effect and except pursuant as required to avoid an excise tax under Section 4980B of the Code or other otherwise except as may be required by applicable Law).
(v) With respect to each Parent Benefit Plan that is subject to Title IV or Section 302 of ERISA or Section 412 or 430 of the Code (each, a “Parent Title IV Plan”): (A) there does not exist any failure to meet the “minimum funding standard” of Section 412 of the Code or 302 of ERISA (whether or not waived), (B) no such plan is in “at-risk” status for purposes of Section 430 of the Code, (C) the present value of accrued benefits under such Parent Title IV Plan, based upon the actuarial assumptions used for funding purposes in the most recent actuarial report prepared by such Parent Title IV Plan’s actuary with respect to such Parent Title IV Plan, did not, as of its latest valuation date, exceed the then current fair market value of the assets of such Parent Title IV Plan allocable to such accrued benefits, (D) no reportable event within the meaning of Section 4043(c) of ERISA has occurred, (E) all premiums to the PBGC have been timely paid in full, (F) no liability (other than for premiums to the PBGC) under Title IV of ERISA has been or is expected to be incurred by Parent or any of its ERISA Affiliates, and (G) the PBGC has not instituted proceedings to terminate any such Parent Title IV Plan and, to the knowledge of Parent, no circumstances exist which could serve as a basis for the institution of such proceedings.
(vi) Except as set forth on Section 3.2(j)(vi) of the Parent Disclosure Letter, 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) increase any benefits otherwise payable or trigger any other obligation under any Parent Benefit Plan, (B) result in any acceleration of the time of payment, funding or vesting of any such benefits or (C) result in any limitation on the right of Parent or any of its Subsidiaries to amend, merge, terminate or receive a reversion of assets from any Parent Benefit Plan or related trust.
(vii) No Parent Benefit Plan provides for the gross-up or reimbursement of Taxes under Section 409A or 4999 of the Code or otherwise.
Appears in 1 contract
Samples: Merger Agreement (Iberiabank Corp)
Benefit Plans. (ia) Section 3.2(j)(iSchedule 3.14(a) of the Parent Disclosure Letter contains sets forth a true, complete and correct list of each Benefit Plan sponsored, maintained or contributed by Parent or any of its Subsidiaries, or which Parent or any of its Subsidiaries is obligated to sponsor, maintain or contribute to, or with respect to which Parent or its Subsidiaries otherwise has any liability (the “Parent all Company Benefit Plans”). No Parent Benefit Plan is established or maintained outside of the United States or for the benefit of current or former employees of Parent or any of its Subsidiaries residing outside of the United States.
(ii) Parent has delivered or made available to the Company prior to the date of this Agreement a true, correct and complete A copy of each Parent 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 currently that is not in effect and, with respect thereto, if written form. To the extent applicable, (A) all amendments, the current trust (or other funding vehicle) agreements, and the most recent summary plan descriptions, (B) the most recent annual report (Form 5500 series includingreport, where applicableactuarial report, all schedules accountant’s opinion of the plan’s financial statements, summary plan description, summaries of material modification and actuarial summary of benefits and accountants’ reports) filed coverage, IRS determination or opinion letter with the Department of Labor and the most recent actuarial report or other financial statement relating respect to such Parent each Company Benefit Plan, (C) the most recent determination letter from the IRS (if applicable) for such Parent Benefit Plan and (D) any notice to or from the IRS or any office or representative a current schedule of the Department of Labor relating assets held with respect to any unresolved compliance issues in respect of such Parent funded Company Benefit Plan, has been supplied to Purchaser.
(iiib) Except All Company Benefit Plans comply in form with applicable 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, except as set forth on Schedule 3.14(b), no event has occurred that will or would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on Parent, (A) each Parent cause any such Company Benefit Plan to fail to comply with such requirements and no notice has been maintained issued by any Governmental Authority questioning or challenging such compliance. All Company Benefit Plans that are subject to Section 409A of the Code comply with Section 409A in form and have been administered in compliance accordance with its their terms and with applicable Law, including, but not limited to, ERISA and Section 409A of the Code and in each case the regulations thereunder, Code.
(Bc) each Parent Each Company Benefit Plan intended that is an employee pension benefit plan is the subject of a favorable determination or opinion letter issued by the IRS with respect to be the qualified status of such plan under Section 401(a) of the Code has received a favorable determination or opinion letter as to its qualifications from and the IRS or is entitled to rely on an advisory or opinion letter as to its qualifications 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 adversely affect the qualified tax-exempt status of any trust that forms a part of such plan, plan under Section 501(a) of the Code; all amendments to any such plan for which the remedial amendment period (Cwithin the meaning of Section 401(b) neither Parent nor any of its Subsidiaries the Code and applicable regulations) has engaged in expired are covered by a transaction favorable IRS determination letter; and no event has occurred that has resulted in, will or would reasonably be expected to result in, give rise to disqualification of any such plan under such sections. None of the assessment assets of a civil penalty upon Parent 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 Company or any of its Subsidiaries pursuant to Section 409 or 502(i) of ERISA or a tax imposed pursuant to Section 4975 or 4976 of the Code that Affiliates has not been satisfied engaged in full, (D) there does not now exist, nor, to the knowledge of Parent, do any circumstances exist that would reasonably be expected to result in, any Controlled Group Liability that would be a liability of Parent, any of its Subsidiaries or any of their respective ERISA Affiliates, (E) all payments required to be made by or with respect to each Parent Benefit Plan (including all contributions, insurance premiums or intercompany charges) with respect to all prior periods have been timely made or paid by Parent or its Subsidiaries in accordance with the provisions of each of the Parent 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 Parent in accordance with GAAP and (F) there prohibited transaction. There are no actions, suits, or claims (other than routine claims for benefits) pending or, to the knowledge of Parent, or threatened claims by or on behalf of involving any Parent Benefit Plan, by any employee or beneficiary covered under any Parent Company Benefit Plan or otherwise involving the assets thereof and Sellers have no knowledge of any Parent Benefit Plan existing facts that could give rise to any such actions, suits or any trusts related thereto claims (other than routine claims for benefits).
(ive) None To the knowledge of ParentSellers, there have been no acts or omissions by the Company or any of its Subsidiaries 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 their respective its ERISA Affiliates maintains, contributes to, may be liable 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 plan subject to Title IV or under Section 302 of ERISA or Section 412 or Section 430 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 plan” (as defined in Section 3(37) of ERISA), or (C) any plan or arrangement which provides for post-employment or post-retirement medical or welfare benefits for retired or former employees or beneficiaries or dependents thereof, except pursuant to Section 4980B 409A of the Code for which the Company or other applicable Law.
(v) With respect to each Parent any of its ERISA Affiliates or any participant in any Company Benefit Plan that is subject to Title IV or Section 302 of ERISA or Section 412 or 430 of the Code a nonqualified deferred compensation plan (each, a “Parent Title IV Plan”): (A) there does not exist any failure to meet the “minimum funding standard” of Section 412 of the Code or 302 of ERISA (whether or not waived), (B) no such plan is in “at-risk” status for purposes of Section 430 of the Code, (C) the present value of accrued benefits under such Parent Title IV Plan, based upon the actuarial assumptions used for funding purposes in the most recent actuarial report prepared by such Parent Title IV Plan’s actuary with respect to such Parent Title IV Plan, did not, as of its latest valuation date, exceed the then current fair market value of the assets of such Parent Title IV Plan allocable to such accrued benefits, (D) no reportable event within the meaning of Section 4043(c409A of the Code) of ERISA has occurred, (E) all premiums to the PBGC have been timely paid in full, (F) no liability (other than for premiums to the PBGC) under Title IV of ERISA has been or is expected to may be incurred by Parent or any of its ERISA Affiliates, and (G) the PBGC has not instituted proceedings to terminate any such Parent Title IV Plan and, to the knowledge of Parent, no circumstances exist which could serve as a basis for the institution of such proceedingsliable.
(vif) Except as set forth on Section 3.2(j)(vi) of the Parent Disclosure Letter, neither Neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby Transactions (either alone or in conjunction combination with any other event) will (Ai) increase entitle any current or former director, officer, employee or independent contractor of the Company to any compensation or benefit 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 otherwise payable or trigger any other obligation under any Parent Company Benefit PlanPlan or otherwise, (Biii) 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 acceleration breach or violation of, default under or limit the Company’s right to amend, modify or terminate any Company Benefit Plan. No payments or benefits contemplated by the Company Benefit Plans or otherwise would, in the aggregate, constitute excess parachute payments (as defined in Section 280G of the time Code (without regard to subsection (b)(4) thereof)). None of payment, funding or vesting of any such benefits or (C) result in any limitation on the right of Parent Company or any of its Subsidiaries to amend, merge, terminate or receive ERISA Affiliates is a reversion nonqualified entity within the meaning of assets from any Parent Section 457A of the Code. No Company Benefit Plan or related trust.
(vii) No Parent Benefit Plan any contract, agreement, plan, policy, or arrangement with any employee, officer, director, consultant or independent contractor of the Company or any of its ERISA Affiliates provides for the a “gross-up up” or reimbursement similar payment in respect of Taxes any taxes that may become payable under Section Sections 409A or 4999 of the Code.
(g) To Sellers’ Knowledge, neither the Company nor any of its ERISA Affiliates has now or at any time had an obligation to contribute to, or any 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 (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 and Section 4980B of the Code or otherwiseapplicable 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 the Ordinary Course of Business 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 (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 be 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 conditions or circumstances exists, that would reasonably be expected to subject the Company, or any Company Benefit Plan, to penalties or excise taxes under Sections 4980D or 4980H of the Code or any other provision of the Healthcare Reform Laws.
Appears in 1 contract
Samples: Stock Purchase Agreement (Proficient Auto Logistics, Inc)
Benefit Plans. (ia) Section 3.2(j)(iAll “employee benefit plans” (within the meaning of section 3(3) of the Parent Disclosure Letter contains a trueEmployee Retirement Income Security Act of 1974, complete as amended (“ERISA”)) and correct list all stock purchase, stock option, severance, employment, change-in-control, fringe benefit, bonus, incentive, deferred compensation, employee loan, and all other employee benefit plans, agreements, programs, policies or other arrangements, and whether or not subject to ERISA, under which any employee, former employee, director, officer, independent contractor or consultant of each Benefit Plan sponsored, maintained or contributed by Parent or any of its Subsidiaries, or which Parent or any of its Subsidiaries is obligated to sponsor, maintain or contribute to, or with respect to which Parent Company or its Subsidiaries otherwise has any present or future right to benefits or under which the Company or its Subsidiaries has any present or future liability (are referred to herein as the “Parent Benefit Company Plans”). No Parent Benefit .” Each material Company Plan is established or maintained outside identified on Section 3.11(a) of the United States or for the benefit of current or former employees of Parent or any of its Subsidiaries residing outside of the United StatesCompany Disclosure Letter.
(iib) Parent With respect to each material Company Plan, Company has delivered furnished or made available to the Company prior to the date of this Agreement Purchaser a truecurrent, correct accurate and complete copy of each Parent Benefit Plan currently in effect thereof and, with respect theretoto the extent applicable: (i) any related trust agreement or other funding instrument, (ii) the most recent determination or opinion letter of the IRS, if applicable, (Aiii) all amendments, the current trust (or other funding vehicle) agreements, and the most recent summary plan descriptionsdescription, (iv) any other written communications (or a description of any oral communications) by the Company or its Subsidiaries to employees of the Company or its Subsidiaries, including concerning the extent of any post-retirement medical or life insurance benefits provided under a Company Plan, and (v) for the most recent year (A) the Form 5500 and attached schedules, (B) the most recent annual report (Form 5500 series including, where applicable, all schedules audited financial statements and actuarial and accountants’ reports) filed with the Department of Labor and the most recent actuarial report or other financial statement relating to such Parent Benefit Plan, (C) the most recent determination letter from the IRS (if applicable) for such Parent Benefit Plan and (D) any notice to or from the IRS or any office or representative of the Department of Labor relating to any unresolved compliance issues in respect of such Parent Benefit Planactuarial valuation reports.
(iiic) Except as would not reasonably be expected With respect to haveeach Company Plan, except to the extent that the inaccuracy of any of the representations set forth in this Section 3.11, individually or in the aggregate, have not had a Company Material Adverse Effect on Parent, Effect:
(Ai) each Parent Benefit Company Plan has been maintained established and administered in compliance accordance with its terms and in compliance with the applicable Law, including, but not limited to, provisions of ERISA and the Code and in each case other applicable Law, and all contributions required to be made under the regulations thereunder, terms of any Company Plan have been timely made;
(Bii) each Parent Benefit Company Plan intended to be qualified under Section 401(a) of the Code has received a favorable determination or determination, advisory and/or opinion letter letter, as to its qualifications applicable, from the IRS that it is so qualified and, to the Knowledge of Company, nothing has occurred, whether by action or is entitled failure to rely on an advisory or opinion act, since the date of such letter as to its qualifications 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 adversely affect cause the loss of such qualified status of such Company Plan;
(iii) there is no Action (including any such planinvestigation, (Caudit or other administrative proceeding) neither Parent nor any by the Department of its Subsidiaries has engaged in a transaction that has resulted in, or would reasonably be expected to result inLabor, the assessment of a civil penalty upon Parent Pension Benefit Guaranty Corporation (the “PBGC”), the IRS or any of its Subsidiaries pursuant to Section 409 other Governmental Entity or 502(i) of ERISA by any plan participant or a tax imposed pursuant to Section 4975 or 4976 of the Code that has not been satisfied in full, (D) there does not now exist, nor, to the knowledge of Parent, do any circumstances exist that would reasonably be expected to result in, any Controlled Group Liability that would be a liability of Parent, any of its Subsidiaries or any of their respective ERISA Affiliates, (E) all payments required to be made by or with respect to each Parent Benefit Plan (including all contributions, insurance premiums or intercompany charges) with respect to all prior periods have been timely made or paid by Parent or its Subsidiaries in accordance with the provisions of each of the Parent 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 Parent in accordance with GAAP and (F) there are no beneficiary pending or, to the knowledge Knowledge of ParentCompany, threatened claims by relating to Company Plans, any fiduciaries thereof with respect to their duties to Company Plans or on behalf the assets of any Parent Benefit Plan, by any employee or beneficiary covered of the trusts under any Parent Benefit Plan or otherwise involving any Parent Benefit Plan or any trusts related thereto Company Plans (other than routine claims for benefits)) nor are there facts or circumstances that exist that could reasonably give rise to any such Actions.
(ivd) None No Company Plan is subject to Title IV of Parent, ERISA or is a multiemployer plan under Subtitle E of Title IV of ERISA.
(e) Each Company Plan pursuant to which the Company or any of its Subsidiaries could incur any current or any of their respective ERISA Affiliates 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 projected liability in connection with: (A) a plan subject to Title IV or Section 302 respect of ERISA or Section 412 or Section 430 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 plan” (as defined in Section 3(37) of ERISA), or (C) any plan or arrangement which provides for post-employment or post-retirement medical health, medical, or welfare life insurance benefits for current, former, or retired employees of the Company or former employees or beneficiaries or dependents thereof, any of its Subsidiaries (except pursuant as required to avoid an excise tax under Section 4980B of the Code or other otherwise except as may be required by applicable Law) (“Retiree Medical Benefits”) is identified in Section 3.11(d) of the Company Disclosure Letter, and (ii) the provisions of each Company Plan so identified which provide Retiree Medical Benefits may be terminated at any time by the Company or its Subsidiaries without liability to the Company or its Subsidiaries.
(v) With respect to each Parent Benefit Plan that is subject to Title IV or Section 302 of ERISA or Section 412 or 430 of the Code (each, a “Parent Title IV Plan”): (A) there does not exist any failure to meet the “minimum funding standard” of Section 412 of the Code or 302 of ERISA (whether or not waived), (B) no such plan is in “at-risk” status for purposes of Section 430 of the Code, (C) the present value of accrued benefits under such Parent Title IV Plan, based upon the actuarial assumptions used for funding purposes in the most recent actuarial report prepared by such Parent Title IV Plan’s actuary with respect to such Parent Title IV Plan, did not, as of its latest valuation date, exceed the then current fair market value of the assets of such Parent Title IV Plan allocable to such accrued benefits, (D) no reportable event within the meaning of Section 4043(c) of ERISA has occurred, (E) all premiums to the PBGC have been timely paid in full, (F) no liability (other than for premiums to the PBGC) under Title IV of ERISA has been or is expected to be incurred by Parent or any of its ERISA Affiliates, and (G) the PBGC has not instituted proceedings to terminate any such Parent Title IV Plan and, to the knowledge of Parent, no circumstances exist which could serve as a basis for the institution of such proceedings.
(vif) Except as set forth on Section 3.2(j)(viSchedule 3.11(f) of the Parent Company Disclosure LetterLetter (and with respect to Company Stock Options and Company Warrants as contemplated in this Agreement), neither Company 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 a result of the transactions contemplated by this Agreement, and neither the execution and delivery of this Agreement, Company shareholder approval of this Agreement nor the consummation of the transactions contemplated hereby (either alone or in conjunction with any other event) will (A) result in severance pay or any increase in severance pay upon any benefits otherwise payable or trigger any other obligation under any Parent Benefit Plantermination of employment after the date of this Agreement, (B) accelerate the time of payment or vesting or result in any acceleration 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 time of paymentCompany Plans, funding or vesting of any such benefits or (C) result in any limitation on limit or restrict the right of Parent the Company to merge, amend, or terminate any of the Company Plans, (D) cause the Company to record additional compensation expense on its Subsidiaries income statement with respect to amendany outstanding stock option or other equity-based award, merge, terminate or receive a reversion (E) result in the payment of assets from any Parent Benefit Plan or related trust.
(vii) No Parent Benefit Plan provides for the gross-up or reimbursement of Taxes payments which would not be deductible under Section 409A or 4999 280G of the Code or otherwiseCode.
Appears in 1 contract
Samples: Merger Agreement (Iberiabank Corp)
Benefit Plans. (ia) Section 3.2(j)(iSchedule 3.14(a) of the Parent Disclosure Letter contains sets forth a true, complete and correct list of each Benefit Plan sponsored, maintained or contributed by Parent or any of its Subsidiaries, or which Parent or any of its Subsidiaries is obligated to sponsor, maintain or contribute to, or with respect to which Parent or its Subsidiaries otherwise has any liability (the “Parent all Company Benefit Plans”). No Parent Benefit Plan is established or maintained outside of the United States or for the benefit of current or former employees of Parent or any of its Subsidiaries residing outside of the United States.
(ii) Parent has delivered or made available to the Company prior to the date of this Agreement a true, correct and complete A copy of each Parent 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 currently that is not in effect and, with respect thereto, if written form. To the extent applicable, (A) all amendments, the current trust (or other funding vehicle) agreements, and the most recent summary plan descriptions, (B) the most recent annual report (Form 5500 series includingreport, where applicableactuarial report, all schedules accountant’s opinion of the plan’s financial statements, summary plan description, summaries of material modification and actuarial summary of benefits and accountants’ reports) filed coverage, IRS determination or opinion letter with the Department of Labor and the most recent actuarial report or other financial statement relating respect to such Parent each Company Benefit Plan, (C) the most recent determination letter from the IRS (if applicable) for such Parent Benefit Plan and (D) any notice to or from the IRS or any office or representative a current schedule of the Department of Labor relating assets held with respect to any unresolved compliance issues in respect of such Parent funded Company Benefit Plan, has been supplied to Purchaser.
(iiib) Except as set forth on Schedule 3.14(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 not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on Parent, (A) each Parent cause any such Company Benefit Plan to fail to comply with such requirements and no notice has been maintained issued by any Governmental Authority questioning or challenging such compliance. All Company Benefit Plans that are subject to Section 409A of the Code comply with Section 409A in form and have been administered in compliance accordance with its their terms and with applicable Law, including, but not limited to, ERISA and Section 409A of the Code and in each case the regulations thereunder, Code.
(Bc) each Parent Each Company Benefit Plan intended that is an employee pension benefit plan is the subject of a favorable determination or opinion letter issued by the IRS with respect to be the qualified status of such plan under Section 401(a) of the Code has received a favorable determination or opinion letter as to its qualifications from and the IRS or is entitled to rely on an advisory or opinion letter as to its qualifications 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 adversely affect the qualified tax-exempt status of any trust that forms a part of such plan, plan under Section 501(a) of the Code; all amendments to any such plan for which the remedial amendment period (Cwithin the meaning of Section 401(b) neither Parent nor any of its Subsidiaries the Code and applicable regulations) has engaged in expired are covered by a transaction favorable IRS determination letter; and no event has occurred that has resulted in, will or would reasonably be expected to result in, give rise to disqualification of any such plan under such sections. None of the assessment assets of a civil penalty upon Parent 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 Company or any of its Subsidiaries pursuant to Section 409 or 502(i) of ERISA or a tax imposed pursuant to Section 4975 or 4976 of the Code that Affiliates has not been satisfied engaged in full, (D) there does not now exist, nor, to the knowledge of Parent, do any circumstances exist that would reasonably be expected to result in, any Controlled Group Liability that would be a liability of Parent, any of its Subsidiaries or any of their respective ERISA Affiliates, (E) all payments required to be made by or with respect to each Parent Benefit Plan (including all contributions, insurance premiums or intercompany charges) with respect to all prior periods have been timely made or paid by Parent or its Subsidiaries in accordance with the provisions of each of the Parent 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 Parent in accordance with GAAP and (F) there prohibited transaction. There are no actions, suits or claims (other than routine claims for benefits) pending or, to the knowledge of Parent, or threatened claims by or on behalf of involving any Parent Benefit Plan, by any employee or beneficiary covered under any Parent Company Benefit Plan or otherwise involving the assets thereof and no facts exist that could give rise to any Parent Benefit Plan such actions, suits or any trusts related thereto claims (other than routine claims for benefits).
(ive) None of Parent, There have been no acts or omissions by the Company or any of its Subsidiaries 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 their respective its ERISA Affiliates maintainsmay be liable or under Section 409A of the Code for which the Company or any of its ERISA Affiliates 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) Neither 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, contributes officer, employee or independent contractor of the Company to any compensation or benefit 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. No payments or benefits contemplated by the Company Benefit Plans or otherwise would, in the aggregate, constitute excess parachute payments (as defined in Section 280G of the Code (without regard to subsection (b)(4) thereof)). Neither the Company nor any of its ERISA Affiliates is a nonqualified entity within the meaning of Section 457A of the Code. No Company Benefit Plan or any contract, agreement, plan, policy, or arrangement with any employee, officer, director, consultant or independent contractor of the Company or any of its ERISA Affiliates provides for a “gross-up” or similar payment in respect of any taxes that may become payable under Sections 409A or 4999 of the Code.
(g) Neither the Company nor any of its ERISA Affiliates has now or at any time had an obligation to contribute to, or participates in, or has ever during the past six (6) years maintained, contributed any Liability with respect to, or participated in, or otherwise has any obligation or liability in connection with: (Ai) a plan subject to Title IV or of ERISA, (ii) a Multiemployer Plan, (iii) a “multiple employer plan” within the meaning of Section 302 of ERISA or Section 412 or Section 430 413(c) of the Code, (Biv) a “multiple employer welfare arrangement” (as defined in within the meaning of Section 3(40) of ERISA), a “multiple employer plan” (as defined in Section 413(c) of the Code) or a “multiemployer plan” (as defined in Section 3(37) of ERISA), or (Cv) any plan or arrangement which provides for post-employment or post-retirement medical or welfare benefits life insurance benefits, other than statutory liability for retired or former employees or beneficiaries or dependents thereof, except pursuant to providing group health plan continuation coverage under Part 6 of Title I of ERISA and Section 4980B of the Code or other applicable Lawstate Law at the sole cost of the individual.
(vh) 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 the Ordinary Course of Business 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 Subsidiaries (or any successor thereto) to unilaterally amend or terminate any Company Benefit Plan.
(j) With respect to each Parent 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 subject to Title IV affordable for themselves, such that there will not be any liability or excise tax under Section 302 4980H(a) or (b) of ERISA or Section 412 or 430 the Code, and (ii) has met its reporting obligation under Sections 6055 and 6056 of the Code (eachas applicable). No event has occurred, a “Parent Title IV and no conditions or circumstances exist, that would reasonably be expected to subject the Company, or any Company Benefit Plan”): (A) there does not exist any failure , to meet the “minimum funding standard” of Section 412 penalties or excise taxes under Sections 4980D or 4980H of the Code or 302 of ERISA (whether or not waived), (B) no such plan is in “at-risk” status for purposes of Section 430 any other provision of the Code, (C) the present value of accrued benefits under such Parent Title IV Plan, based upon the actuarial assumptions used for funding purposes in the most recent actuarial report prepared by such Parent Title IV Plan’s actuary with respect to such Parent Title IV Plan, did not, as of its latest valuation date, exceed the then current fair market value of the assets of such Parent Title IV Plan allocable to such accrued benefits, (D) no reportable event within the meaning of Section 4043(c) of ERISA has occurred, (E) all premiums to the PBGC have been timely paid in full, (F) no liability (other than for premiums to the PBGC) under Title IV of ERISA has been or is expected to be incurred by Parent or any of its ERISA Affiliates, and (G) the PBGC has not instituted proceedings to terminate any such Parent Title IV Plan and, to the knowledge of Parent, no circumstances exist which could serve as a basis for the institution of such proceedingsHealthcare Reform Laws.
(vi) Except as set forth on Section 3.2(j)(vi) of the Parent Disclosure Letter, 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) increase any benefits otherwise payable or trigger any other obligation under any Parent Benefit Plan, (B) result in any acceleration of the time of payment, funding or vesting of any such benefits or (C) result in any limitation on the right of Parent or any of its Subsidiaries to amend, merge, terminate or receive a reversion of assets from any Parent Benefit Plan or related trust.
(vii) No Parent Benefit Plan provides for the gross-up or reimbursement of Taxes under Section 409A or 4999 of the Code or otherwise.
Appears in 1 contract
Samples: Stock Purchase Agreement (Proficient Auto Logistics, Inc)
Benefit Plans. (a) Set forth on Schedule 4.19(a) is a true and complete list of each material Benefit Plan of the Company (each, a “Company Benefit Plan”). With respect to each Company Benefit Plan, there are no funded benefit obligations for which contributions have not been made or properly accrued and there are no unfunded benefit obligations that have not been accounted for by reserves, or otherwise properly footnoted in accordance with GAAP on the Company Financials. No statement, either written or oral, has been made by the Company to any Person with regard to any Company Benefit Plan that was not in accordance with the Company Benefit Plan in any material respect.
(b) Each Company Benefit Plan is and has been operated at all times in compliance with all applicable Laws in all material respects, including ERISA and the Code. Each Company Benefit Plan which is intended to be “qualified” within the meaning of Section 401(a) of the Code (i) Section 3.2(j)(ihas been determined by the IRS to be so qualified (or is based on a prototype plan which has received a favorable opinion letter) of during the Parent Disclosure Letter contains a true, complete and correct list of each Benefit Plan sponsored, maintained or contributed by Parent or any of period from its Subsidiaries, or which Parent or any of its Subsidiaries is obligated to sponsor, maintain or contribute to, or with respect to which Parent or its Subsidiaries otherwise has any liability (the “Parent Benefit Plans”). No Parent Benefit Plan is established or maintained outside of the United States or for the benefit of current or former employees of Parent or any of its Subsidiaries residing outside of the United States.
(ii) Parent has delivered or made available to the Company prior adoption to the date of this Agreement a trueand (ii) its related trust has been determined to be exempt from taxation under Section 501(a) of the Code or the Company has requested an initial favorable IRS determination of qualification and/or exemption within the period permitted by applicable Law. No fact exists which could adversely affect the qualified status of such Company Benefit Plans or the exempt status of such trusts.
(c) With respect to each Company Benefit Plan which covers any current or former officer, correct director, consultant or employee (or beneficiary thereof) of the Company, the Company has provided to Purchaser accurate and complete copy of each Parent Benefit Plan currently in effect and, with respect theretocopies, if applicable, of: (Ai) all Company Benefit Plan texts and agreements and related trust agreements or annuity Contracts (including any amendments, modifications or supplements thereto); (ii) all summary plan descriptions and material modifications thereto; (iii) the current trust three (or other funding vehicle3) agreementsmost recent Forms 5500, if applicable, and the most recent summary plan descriptionsannual report, including all schedules thereto; (Biv) the most recent annual report and periodic accounting of plan assets; (Form 5500 series including, where applicable, all schedules and actuarial and accountants’ reportsv) filed with the Department of Labor and the three (3) most recent actuarial report or other financial statement relating to such Parent Benefit Plan, nondiscrimination testing reports; (Cvi) the most recent determination letter received from the IRS IRS, if any; (if applicablevii) for such Parent Benefit Plan the most recent actuarial valuation; and (Dviii) all material communications with any notice to or from the IRS or any office or representative of the Department of Labor relating to any unresolved compliance issues in respect of such Parent Benefit PlanGovernmental Authority.
(iiid) Except as would not reasonably be expected With respect to have, individually or in the aggregate, a Material Adverse Effect on Parent, each Company Benefit Plan: (Ai) each Parent such Company Benefit Plan has been maintained administered and administered enforced in compliance all material respects in accordance with its terms and with applicable Lawterms, including, but not limited to, ERISA and the Code and in each case the regulations thereunder, ERISA; (Bii) each Parent Benefit Plan intended to be qualified under Section 401(ano breach of fiduciary duty has occurred; (iii) of the Code has received a favorable determination or opinion letter as to its qualifications from the IRS or no Action is entitled to rely on an advisory or opinion letter as to its qualifications 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 adversely affect the qualified status of any such plan, (C) neither Parent nor any of its Subsidiaries has engaged in a transaction that has resulted inpending, or would reasonably be expected to result in, the assessment of a civil penalty upon Parent or any of its Subsidiaries pursuant to Section 409 or 502(i) of ERISA or a tax imposed pursuant to Section 4975 or 4976 of the Code that has not been satisfied in full, (D) there does not now exist, nor, to the knowledge of Parent, do any circumstances exist that would reasonably be expected to result in, any Controlled Group Liability that would be a liability of Parent, any of its Subsidiaries or any of their respective ERISA Affiliates, (E) all payments required to be made by or with respect to each Parent Benefit Plan (including all contributions, insurance premiums or intercompany charges) with respect to all prior periods have been timely made or paid by Parent or its Subsidiaries in accordance with the provisions of each of the Parent 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 Parent in accordance with GAAP and (F) there are no pending or, to the knowledge of ParentCompany’s Knowledge, threatened claims by or on behalf of any Parent Benefit Plan, by any employee or beneficiary covered under any Parent Benefit Plan or otherwise involving any Parent Benefit Plan or any trusts related thereto (other than routine claims for benefitsbenefits arising in the ordinary course of administration).
; (iv) None of Parentno prohibited transaction, any of its Subsidiaries or any of their respective ERISA Affiliates 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 as defined in connection with: (A) a plan subject to Title IV or Section 302 406 of ERISA or Section 412 or Section 430 4975 of the Code, has occurred, excluding transactions effected pursuant to a statutory or administration exemption; and (Bv) all contributions and premiums due through the Closing Date have been made in all material respects as required under ERISA or have been fully accrued in all material respects on the Company Financials.
(e) Except as set forth on Schedule 4.19(e), no Company Benefit Plan is a “multiple employer welfare arrangement” (as defined in Section 3(40) of ERISA), a “multiple employer benefit plan” (as defined in Section 413(c414(j) of the Code) or ), a “multiemployer plan” (as defined in Section 3(37) of ERISA)) or a “multiple employer plan” (as described in Section 413(c) of the Code) or is otherwise subject to Title IV of ERISA or Section 412 of the Code, and the Company has not incurred any Liability or otherwise could have any Liability, contingent or otherwise, under Title IV of ERISA and no condition presently exists that is expected to cause such Liability to be incurred. The Company does not currently maintain and has never maintained, and is not required currently and has ever been required to contribute to or otherwise participate in, a multiple employer welfare arrangement or voluntary employees’ beneficiary association as defined in Section 501(c)(9) of the Code.
(Cf) There is no arrangement under any Company Benefit Plan with respect to any employee that would result in the payment of any amount that by operation of Sections 280G or 162(m) of the Code would not be deductible by the Company and no arrangement exists pursuant to which the Company will be required to “gross up” or otherwise compensate any person because of the imposition of any excise tax on a payment to such person.
(g) With respect to each Company Benefit Plan which is a “welfare plan” (as described in Section 3(1) of ERISA): (i) no such plan or arrangement which provides for post-employment or post-retirement medical or welfare death benefits for retired with respect to current or former employees of the Company beyond their termination of employment (other than coverage mandated by Law, which is paid solely by such employees); and (ii) there are no reserves, assets, surplus or beneficiaries prepaid premiums under any such plan. The Company has complied with the provisions of Section 601 et seq. of ERISA and Section 4980B of the Code.
(h) The consummation of the transactions contemplated by this Agreement and the Ancillary Documents will not: (i) entitle any individual to severance pay, unemployment compensation or dependents thereofother benefits or compensation; (ii) accelerate the time of payment or vesting, except pursuant or increase the amount of any compensation due, or in respect of, any individual; or (iii) result in or satisfy a condition to the payment of compensation that would, in combination with any other payment, result in an “excess parachute payment” within the meaning of Section 280G of the Code. The Company has not incurred any Liability for any Tax imposed under Chapter 43 of the Code or civil liability under Section 502(i) or (l) of ERISA.
(i) Except to the extent required by Section 4980B of the Code or similar state Law, the Company neither provides health or welfare benefits to any former or retired employee nor is it obligated to provide such benefits to any active employee following such employee’s retirement or other applicable Lawtermination of employment or service.
(vj) With respect Except as set forth on Schedule 4.19(j), all Company Benefit Plans can be terminated at any time as of or after the Closing Date without resulting in any Liability to each Parent the Surviving Corporation or Purchaser or their respective Affiliates for any additional contributions, penalties, premiums, fees, fines, excise taxes or any other charges or liabilities.
(k) Each Company Benefit Plan that is subject to Title IV or Section 302 of ERISA or Section 412 or 430 409A of the Code (each, a “Parent Title IV Section 409A Plan”): (A) there does not exist any failure to meet as of the “minimum funding standard” Closing Date is indicated as such on Schedule 4.19(k). No Company Options or other equity-based awards have been issued or granted by the Company that are, or are subject to, a Section 409A Plan. Each Section 409A Plan has been administered in compliance, and is in documentary compliance, with the applicable provisions of Section 412 of the Code or 302 of ERISA (whether or not waived), (B) no such plan is in “at-risk” status for purposes of Section 430 409A of the Code, (C) the present value of accrued benefits under such Parent Title IV Plan, based upon the actuarial assumptions used for funding purposes in the most recent actuarial report prepared by such Parent Title IV Plan’s actuary regulations thereunder and other official guidance issued thereunder. The Company has no obligation to any employee or other service provider with respect to such Parent Title IV Plan, did not, as of its latest valuation date, exceed the then current fair market value any Section 409A Plan that may be subject to any Tax under Section 409A of the assets Code. No payment to be made under any Section 409A Plan is, or to the Knowledge of such Parent Title IV Plan allocable the Company will be, subject to such accrued benefits, (D) no reportable event within the meaning penalties of Section 4043(c) of ERISA has occurred, (E) all premiums to the PBGC have been timely paid in full, (F) no liability (other than for premiums to the PBGC) under Title IV of ERISA has been or is expected to be incurred by Parent or any of its ERISA Affiliates, and (G) the PBGC has not instituted proceedings to terminate any such Parent Title IV Plan and, to the knowledge of Parent, no circumstances exist which could serve as a basis for the institution of such proceedings.
(vi) Except as set forth on Section 3.2(j)(vi409A(a)(1) of the Parent Disclosure LetterCode. There is no Contract or plan to which the Company is a party or by which it is bound to compensate any employee, neither the execution and delivery of this Agreement nor the consummation consultant or director for penalty taxes paid pursuant to Section 409A of the transactions contemplated hereby (either alone or in conjunction with any other event) will (A) increase any benefits otherwise payable or trigger any other obligation under any Parent Benefit Plan, (B) result in any acceleration of the time of payment, funding or vesting of any such benefits or (C) result in any limitation on the right of Parent or any of its Subsidiaries to amend, merge, terminate or receive a reversion of assets from any Parent Benefit Plan or related trustCode.
(vii) No Parent Benefit Plan provides for the gross-up or reimbursement of Taxes under Section 409A or 4999 of the Code or otherwise.
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Samples: Merger Agreement (Aesther Healthcare Acquisition Corp.)
Benefit Plans. (ia) Section 3.2(j)(i2.18(a)(i) of the Parent Disclosure Letter Schedule contains a truelist and brief description of all Benefit Plans (as defined below) established, complete sponsored or maintained by Parent, whether or nor contributed to by the Company. Section 2.18(a)(ii) of the Disclosure Schedule contains a list and correct list brief description of all Benefit Plans established, sponsored or maintained by the Company, whether or not contributed to by Parent. Except as set forth on Section 2.18(a)(ii) of the Disclosure Schedule, the Company has not established or maintained and has not been and is not obligated to make any contribution to or under or otherwise participate in any Benefit Plan, nor has the Company committed or proposed to do so.
(b) Except as set forth in Section 2.18(b)(i) of the Disclosure Schedule, each Benefit Plan sponsored, maintained or contributed by Parent or any listed in Section 2.18(a)(i) of the Disclosure Schedule has been operated and administered materially in accordance with its Subsidiaries, or which Parent or any of its Subsidiaries material terms and is obligated in material compliance with applicable Law (including but not limited to sponsor, maintain or contribute to, or with respect to which Parent or its Subsidiaries otherwise has any liability (ERISA and the “Parent Benefit Plans”Code). No Parent Except as set forth in Section 2.18(b)(ii) of the Disclosure Schedule, each Benefit Plan is established or maintained outside listed in Section 2.18(a)(ii) of the United States or for the benefit of current or former employees of Parent or any of its Subsidiaries residing outside of the United States.
(ii) Parent has delivered or made available to the Company prior to the date of this Agreement a true, correct and complete copy of each Parent Benefit Plan currently in effect and, with respect thereto, if applicable, (A) all amendments, the current trust (or other funding vehicle) agreements, and the most recent summary plan descriptions, (B) 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 Parent Benefit Plan, (C) the most recent determination letter from the IRS (if applicable) for such Parent Benefit Plan and (D) any notice to or from the IRS or any office or representative of the Department of Labor relating to any unresolved compliance issues in respect of such Parent Benefit Plan.
(iii) Except as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on Parent, (A) each Parent Benefit Plan Disclosure Schedule has been maintained operated and administered materially in compliance accordance with its terms and is in compliance with applicable Law, including, Law (including but not limited to, to ERISA and the Code and Code). Except as set forth in each case the regulations thereunder, (B) each Parent Benefit Plan intended to be qualified under Section 401(a2.18(b)(ii) of the Code has received a favorable determination or opinion letter as to its qualifications from the IRS or is entitled to rely on an advisory or opinion letter as to its qualifications issued with respect to an IRS approved master and prototype or volume submitter planDisclosure Schedule, and there are no existing circumstances lawsuits, actions, termination proceedings or any events that have occurred that would reasonably be expected to adversely affect the qualified status of any such plan, (C) neither Parent nor any of its Subsidiaries has engaged in a transaction that has resulted in, or would reasonably be expected to result in, the assessment of a civil penalty upon Parent or any of its Subsidiaries pursuant to Section 409 or 502(i) of ERISA or a tax imposed pursuant to Section 4975 or 4976 of the Code that has not been satisfied in full, (D) there does not now exist, nor, to the knowledge of Parent, do any circumstances exist that would reasonably be expected to result in, any Controlled Group Liability that would be a liability of Parent, any of its Subsidiaries or any of their respective ERISA Affiliates, (E) all payments required to be made by or with respect to each Parent Benefit Plan (including all contributions, insurance premiums or intercompany charges) with respect to all prior periods have been timely made or paid by Parent or its Subsidiaries in accordance with the provisions of each of the Parent 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 Parent in accordance with GAAP and (F) there are no other proceedings pending or, to the knowledge of the Company or Parent, threatened against or involving any Benefit Plan that, if adversely determined, would reasonably be anticipated to result in any material liability or obligation on the part of the Company and there are no investigations by any Governmental Entity or other claims by (except claims for benefits payable in the normal operation of the Benefit Plans) pending or, to the knowledge of the Company, threatened against or on behalf involving any Benefit Plan. Except as set forth in Section 2.18(b)(ii) of the Disclosure Schedule, the Company does not have any Parent liability to the IRS, to the knowledge of the Company or Parent, with respect to any Benefit Plan, by including any employee or beneficiary covered liability imposed under any Parent Benefit Plan or otherwise involving any Parent Benefit Plan or any trusts related thereto (other than routine claims for benefits)Chapter 43 of the Code.
(ivc) None of Parent, any of its Subsidiaries or any of their respective ERISA Affiliates maintains, contributes to, or participates in, or has ever during the past six (6Except as set forth in Section 2.18(b)(i) years maintained, contributed to, or participated in, or otherwise has any obligation or liability in connection with: (A) a plan subject to Title IV or Section 302 2.18(b)(ii) of the Disclosure Schedule, no transaction prohibited by Section 406 of ERISA or Section 412 or Section 430 of the Code, (B) a nor any “multiple employer welfare arrangementprohibited transaction” (as defined in Section 3(404975 of the Code) of ERISA), a that is not covered by an applicable exemption has occurred with respect to any Benefit Plan. No defined benefit Pension Plan has been terminated and there have been no “multiple employer planreportable events” (as defined in Section 413(c4043 of ERISA) of the Code) with respect thereto. No Pension Plan is a single or a “multiemployer plan” plan (as defined in Section 3(37) of ERISA)) or subject to Title IV of ERISA.
(d) The Company has not offered to provide health or life insurance coverage to any individual, or (C) to the family members of any plan or arrangement which provides individual, for post-any period extending beyond the termination of the individual’s employment or post-retirement medical or welfare benefits for retired or former employees or beneficiaries or dependents thereofby the Company, except pursuant to Section 4980B the extent required by the health care continuation provisions of ERISA and the Code or other applicable Law.
(v) With respect to each Parent similar state benefit continuation Laws. Each Benefit Plan that is subject to Title IV or a group health plan, as such term is defined in Section 302 of ERISA or Section 412 or 430 of the Code (each, a “Parent Title IV Plan”): (A5000(b)(1) there does not exist any failure to meet the “minimum funding standard” of Section 412 of the Code or 302 of ERISA (whether or not waived), (B) no such plan is in “at-risk” status for purposes of Section 430 of the Code, (C) the present value complies in all respects with Sections 601 et seq. and 701 et seq. of accrued benefits under such Parent Title IV Plan, based upon the actuarial assumptions used for funding purposes in the most recent actuarial report prepared by such Parent Title IV Plan’s actuary with respect to such Parent Title IV Plan, did not, as of its latest valuation date, exceed the then current fair market value ERISA and Section 4980B and Subtitle K of the assets of such Parent Title IV Plan allocable to such accrued benefits, (D) no reportable event within the meaning of Section 4043(c) of ERISA has occurred, (E) all premiums to the PBGC have been timely paid in full, (F) no liability (other than for premiums to the PBGC) under Title IV of ERISA has been or is expected to be incurred by Parent or any of its ERISA Affiliates, and (G) the PBGC has not instituted proceedings to terminate any such Parent Title IV Plan and, to the knowledge of Parent, no circumstances exist which could serve as a basis for the institution of such proceedingsCode.
(vie) Each Benefit Plan (including any such plan covering retirees or other former employees) may be discontinued or terminated without liability on the part of the Company before, on or at any time after the Effective Time.
(f) Except as set forth on in Section 3.2(j)(vi) of the Parent Disclosure Letter6.9, neither the execution and delivery of this Agreement Agreement, nor the consummation of the Merger or the other transactions contemplated hereby by this Agreement will result in the payment, vesting or acceleration of any bonus, stock option or other equity-based award, retirement, severance, job security or similar benefit or any enhanced benefit to any Person for which the Company is or could become liable, or the loss of any deduction to the Company under Section 280G of the Code.
(either alone or g) Parent specifically retains all liabilities and obligations associated with any Benefit Plan set forth in conjunction Section 2.18(a)(i) of the Disclosure Schedule and the TSI 401(k) Plan. With the exception of the TSI 401(k) Plan, the Company specifically retains all liabilities and obligations associated with any Benefit Plans set forth in Section 2.18(a)(ii) of the Disclosure Schedule, which continues to be maintained by the Company on and after the Closing Date. Except as set forth in the immediately preceding sentence, Parent specifically retains all liabilities and obligations associated with any other event) will (A) increase any benefits otherwise payable employee benefit plan, program or trigger any other obligation under any Parent Benefit Planarrangement whether or not subject to ERISA, (B) result in any acceleration of the time of paymentmaintained, funding sponsored or vesting of any such benefits or (C) result in any limitation on the right of contributed to by Parent or any of its Subsidiaries to amendgroup, mergetrade, terminate business or receive entity which together with Parent is treated as a reversion of assets from any Parent Benefit Plan or related trust.
(vii) No Parent Benefit Plan provides for the gross-up or reimbursement of Taxes single employer under Section 409A or 4999 414 of the Code or otherwiseSection 4001(a)(14) of ERISA.
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Benefit Plans. (ia) Section 3.2(j)(i5.13(a) of the Parent Company Disclosure Letter contains a true, true and complete and correct list of each Benefit Plan sponsoredunder which (i) any current or former employee, maintained director or contributed by Parent or any consultant of its Subsidiaries, or which Parent the Company or any of its Subsidiaries is obligated to sponsor, maintain or contribute to, or with respect to which Parent or its Subsidiaries otherwise has (other than any liability portfolio company of the Funds) (the “Parent Benefit PlansCompany Employees”). No Parent Benefit Plan is established ) has any present or future right to benefits and which are contributed to, sponsored by or maintained outside of by the United States or for the benefit of current or former employees of Parent Company or any of its Subsidiaries residing outside (other than any portfolio company of the United StatesFunds) or (ii) the Company or any of its Subsidiaries (other than any portfolio company of the Funds) has had or has any present or future liability. All such Benefit Plans shall be collectively referred to as the “Company Benefit Plans”.
(iib) Parent With respect to each Company Benefit Plan the Company has delivered or made available to the Company prior to the date of this Agreement Purchaser a truecurrent, correct accurate and complete copy of each Parent Benefit Plan currently in effect (or, to the extent no such copy exists, an accurate description) thereof and, with respect thereto, if to the extent applicable, : (Ai) all amendments, the current any related trust (agreement or other funding vehicle) agreements, and the most recent summary plan descriptions, instrument; (B) 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 Parent Benefit Plan, (Cii) the most recent determination letter from the IRS (letter, if applicable; (iii) any summary plan description; and (iv) for such Parent Benefit Plan the two most recent years (A) the Form 5500 and attached schedules, (B) audited financial statements and (DC) any notice to or from the IRS or any office or representative of the Department of Labor relating to any unresolved compliance issues in respect of such Parent Benefit Planactuarial valuation reports, as applicable.
(iiii) Except as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on Parent, (A) each Parent Each Company Benefit Plan has been maintained established and administered in all material respects in accordance with its terms, and in material compliance with its terms and with the applicable Lawprovisions of ERISA, including, but not limited to, ERISA and the Code and in each case the regulations thereunder, other Applicable Laws; (Bii) each Parent Company Benefit Plan that is intended to be qualified under within the meaning of Section 401(a) of the Code has received a favorable determination or opinion letter as to its qualifications from the IRS or is entitled to rely on an advisory or opinion letter as to its qualifications issued with respect to an IRS approved master and prototype or volume submitter planqualification, and there are no existing circumstances nothing has occurred, whether by action or any events failure to act, that have occurred that would could reasonably be expected to adversely affect cause the qualified status loss of any such plan, qualification; and (Ciii) neither Parent the Company nor any of its Subsidiaries (other than any portfolio company of the Funds) has engaged incurred any current or projected liability in a transaction that has resulted inrespect of post-employment or post-retirement health, medical or would reasonably be expected to result inlife insurance benefits for current, the assessment former or retired employees of a civil penalty upon Parent Company or any of its Subsidiaries Subsidiaries, except as required to avoid an excise tax under Section 4980B of the Code or otherwise except as may be required pursuant to Section 409 or 502(iany other Applicable Law.
(d) No Company Benefit Plan is subject to the funding requirements of Title IV of ERISA or a tax imposed pursuant to Section 4975 or 4976 of the Code that has not been satisfied in full, (D) there does not now exist, nor, to the knowledge of Parent, do any circumstances exist that would reasonably be expected to result in, any Controlled Group Liability that would be a liability of Parent, any of its Subsidiaries or any of their respective ERISA Affiliates, (E) all payments required to be made by or with respect to each Parent Benefit Plan (including all contributions, insurance premiums or intercompany charges) with respect to all prior periods have been timely made or paid by Parent or its Subsidiaries in accordance with the provisions of each of the Parent 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 Parent in accordance with GAAP and (F) there are no pending or, to the knowledge of Parent, threatened claims by or on behalf of any Parent Benefit Plan, by any employee or beneficiary covered under any Parent Benefit Plan or otherwise involving any Parent Benefit Plan or any trusts related thereto (other than routine claims for benefits).
(iv) None of Parent, any of its Subsidiaries or any of their respective ERISA Affiliates 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 plan subject to Title IV or Section 302 of ERISA or Section 412 or Section 430 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 is a “multiemployer plan” (as defined in Section 3(374001(a)(3) of ERISA)) and neither the Company nor any member of its Controlled Group has at any time sponsored or contributed to, or (C) has or had any plan liability or arrangement which provides for post-employment or post-retirement medical or welfare benefits for retired or former employees or beneficiaries or dependents thereofobligation in respect of, except pursuant to Section 4980B of the Code or other applicable Lawany multiemployer plan.
(ve) With respect to each Parent No Company Benefit Plan that is subject to Title IV or Section 302 of ERISA or Section 412 or 430 exists that, as a result of the Code (each, a “Parent Title IV Plan”): (A) there does not exist any failure to meet the “minimum funding standard” of Section 412 of the Code or 302 of ERISA (whether or not waived), (B) no such plan is in “at-risk” status for purposes of Section 430 of the Code, (C) the present value of accrued benefits under such Parent Title IV Plan, based upon the actuarial assumptions used for funding purposes in the most recent actuarial report prepared by such Parent Title IV Plan’s actuary with respect to such Parent Title IV Plan, did not, as of its latest valuation date, exceed the then current fair market value of the assets of such Parent Title IV Plan allocable to such accrued benefits, (D) no reportable event within the meaning of Section 4043(c) of ERISA has occurred, (E) all premiums to the PBGC have been timely paid in full, (F) no liability (other than for premiums to the PBGC) under Title IV of ERISA has been or is expected to be incurred by Parent or any of its ERISA Affiliates, and (G) the PBGC has not instituted proceedings to terminate any such Parent Title IV Plan and, to the knowledge of Parent, no circumstances exist which could serve as a basis for the institution of such proceedings.
(vi) Except as set forth on Section 3.2(j)(vi) of the Parent Disclosure Letter, neither the execution and delivery of this Agreement nor the and consummation of the transactions contemplated hereby (either alone or in conjunction with any other event) hereby, will (Ai) entitle any Company Employee to any increase in severance pay upon any benefits otherwise payable or trigger any other obligation under any Parent Benefit Plantermination of employment after the date of this Agreement, (Bii) accelerate the time of payment or vesting or result in any acceleration payment or funding (through a grantor trust or otherwise) of compensation or benefits under, increase the time of payment, funding amount payable or vesting of any such benefits or (C) result in any limitation on other material obligation pursuant to, any of the Company Benefit Plans, (iii)limit or restrict the right of Parent the Company or any of its Subsidiaries to amend, merge, amend or terminate any of the Company Benefit Plans, (iv) cause the Company or receive a reversion any of assets from its Subsidiaries to record additional compensation expense on its income statement with respect to any Parent outstanding stock option or other equity-based award, or (v) result in payments under any of the Company Benefit Plan or related trustPlans which would not be deductible under Section 280G of the Code.
(viif) No Parent Benefit Plan provides for the gross-up or reimbursement of Taxes under Section 409A or 4999 None of the Code or otherwiseCompany Accounts has to date constituted a “plan assets fund” subject to ERISA.
Appears in 1 contract
Benefit Plans. (ia) Section 3.2(j)(iSet forth on Schedule 4.19(a) of the Parent Disclosure Letter contains is a true, true and complete and correct list of each Benefit Plan sponsoredof a Target Company (each, maintained a “Company Benefit Plan”). With respect to each Company Benefit Plan, all contributions, deferrals, premiums and benefit payments under or contributed in connection therewith that are required to have been made as of the Closing Date will have been made or have been accounted for by Parent or any of its Subsidiariesreserves, or which Parent otherwise properly footnoted in accordance with GAAP on the Company Financials. No Target Company is or has in the past been a member of a “controlled group” for purposes of Section 414(b), (c), (m) or (o) of the Code, nor does any of its Subsidiaries is obligated to sponsor, maintain or contribute to, or Target Company have any Liability with respect to which Parent any collectively-bargained for plans, whether or its Subsidiaries otherwise has any liability not subject to the provisions of ERISA.
(the “Parent Benefit Plans”). No Parent b) Each Company Benefit Plan is established or maintained outside and has been operated at all times in compliance with all applicable Laws in all material respects, including ERISA and the Code. Each Company Benefit Plan which is intended to be “qualified” within the meaning of Section 401(a) of the United States Code (i) has been determined by the IRS to be so qualified (or for is based on a prototype or volume submitter plan which has received a favorable opinion letter) during the benefit of current or former employees of Parent or any of period from its Subsidiaries residing outside of the United States.
(ii) Parent has delivered or made available to the Company prior adoption to the date of this Agreement and (ii) its related trust has been determined to be exempt from taxation under Section 501(a) of the Code or the Target Companies have requested an initial favorable IRS determination of qualification and/or exemption within the period permitted by applicable Law. No fact exists which could adversely affect the qualified status of such Company Benefit Plans or the exempt status of such trusts.
(c) With respect to each Company Benefit Plan which covers any current or former officer, director, consultant or employee (or beneficiary thereof) of a trueTarget Company, correct the Company has provided to Purchaser accurate and complete copy of each Parent Benefit Plan currently in effect and, with respect theretocopies, if applicable, of: (Ai) all Company Benefit Plan documents and agreements and related trust agreements or annuity Contracts (including any amendments, modifications or supplements thereto); (ii) all current summary plan descriptions and subsequent material modifications thereto; (iii) the current trust three (or other funding vehicle3) agreementsmost recent Forms 5500, if applicable, and the most recent summary plan descriptionsannual report, including all schedules thereto; (Biv) the most recent annual report and periodic accounting of plan assets; (Form 5500 series including, where applicable, all schedules and actuarial and accountants’ reportsv) filed with the Department of Labor and the three (3) most recent actuarial report or other financial statement relating to such Parent Benefit Plan, nondiscrimination testing reports; (Cvi) the most recent determination letter received from the IRS IRS, if any; (if applicablevii) for such Parent the most recent actuarial valuation; and (viii) all material non-routine communications in the past three (3) years with any Governmental Authority concerning any Company Benefit Plan and (D) matter that is still pending or for which a Target Company has any notice to or from the IRS or any office or representative of the Department of Labor relating to any unresolved compliance issues in respect of such Parent Benefit Planoutstanding material Liability.
(iiid) Except as would not reasonably be expected With respect to have, individually or in the aggregate, a Material Adverse Effect on Parent, each Company Benefit Plan: (Ai) each Parent such Company Benefit Plan has been maintained administered and administered enforced in compliance all material respects in accordance with its terms and with applicable Lawterms, including, but not limited to, ERISA and the Code and in each case the regulations thereunder, ERISA; (Bii) each Parent Benefit Plan intended to be qualified under Section 401(ano breach of fiduciary duty has occurred; (iii) of the Code has received a favorable determination or opinion letter as to its qualifications from the IRS or no Action is entitled to rely on an advisory or opinion letter as to its qualifications 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 adversely affect the qualified status of any such plan, (C) neither Parent nor any of its Subsidiaries has engaged in a transaction that has resulted inpending, or would reasonably be expected to result in, the assessment of a civil penalty upon Parent or any of its Subsidiaries pursuant to Section 409 or 502(i) of ERISA or a tax imposed pursuant to Section 4975 or 4976 of the Code that has not been satisfied in full, (D) there does not now exist, nor, to the knowledge of Parent, do any circumstances exist that would reasonably be expected to result in, any Controlled Group Liability that would be a liability of Parent, any of its Subsidiaries or any of their respective ERISA Affiliates, (E) all payments required to be made by or with respect to each Parent Benefit Plan (including all contributions, insurance premiums or intercompany charges) with respect to all prior periods have been timely made or paid by Parent or its Subsidiaries in accordance with the provisions of each of the Parent 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 Parent in accordance with GAAP and (F) there are no pending or, to the knowledge of ParentCompany’s Knowledge, threatened claims by or on behalf of any Parent Benefit Plan, by any employee or beneficiary covered under any Parent Benefit Plan or otherwise involving any Parent Benefit Plan or any trusts related thereto (other than routine claims for benefitsbenefits arising in the ordinary course of administration).
; (iv) None of Parentno prohibited transaction, any of its Subsidiaries or any of their respective ERISA Affiliates 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 as defined in connection with: (A) a plan subject to Title IV or Section 302 406 of ERISA or Section 412 or Section 430 4975 of the Code, has occurred, excluding transactions effected pursuant to a statutory or administration exemption; and (Bv) all contributions and premiums due through the Closing Date have been made in all material respects as required under ERISA or have been fully accrued in all material respects on the Company Financials.
(e) No Company Benefit Plan is a “multiple employer welfare arrangement” (as defined in Section 3(40) of ERISA), a “multiple employer benefit plan” (as defined in Section 413(c414(j) of the Code) or ), a “multiemployer plan” (as defined in Section 3(37) of ERISA) or a “multiple employer plan” (as described in Section 413(c) of the Code) or is otherwise subject to Title IV of ERISA or Section 412 of the Code, and no Target Company has incurred any Liability or otherwise could have any Liability, contingent or otherwise, under Title IV of ERISA and no condition presently exists that is expected to cause such Liability to be incurred. No Company Benefit Plan will become a multiple employer plan with respect to any Target Company immediately after the Closing Date. No Target Company currently maintains or has ever maintained, or is required currently or has ever been required to contribute to or otherwise participate in, a multiple employer welfare arrangement or voluntary employees’ beneficiary association as defined in Section 501(c)(9) of the Code.
(f) There is no arrangement under any Company Benefit Plan with respect to any employee that would result in the payment of any amount that by operation of Sections 280G or 162(m) of the Code would not be deductible by the Target Companies and no arrangement exists pursuant to which a Target Company will be required to “gross up” or otherwise compensate any person because of the imposition of any excise tax on a payment to such person.
(g) With respect to each Company Benefit Plan which is a “welfare plan” (as described in Section 3(1) of ERISA): (i) except as set forth on Schedule 4.19(g), no such plan provides medical or death benefits with respect to current or former employees, directors or consultants (or a beneficiary thereof) of a Target Company beyond their termination of employment (other than coverage mandated by Law, which is paid solely by such beneficiary; benefits through the end of the month of termination of employment or engagement, as applicable; death or disability benefits attributable to deaths or disabilities occurring at or prior to termination of employment or engagement, as applicable; and post-termination benefits from an insurer during any period to convert a group Company Benefit Plan to an individual plan); and (ii) there are no reserves, assets, surplus or prepaid premiums under any such plan. Each Target Company has complied in all material respects with the provisions of Section 601 et seq. of ERISA and Section 4980B of the Code.
(h) Except as set forth on Schedule 4.19(h), the consummation of the transactions contemplated by this Agreement and the Ancillary Documents will not: (i) entitle any individual to severance pay, unemployment compensation or other benefits or compensation; (ii) accelerate the time of payment or vesting, or increase the amount of any compensation due, or in respect of, any individual; or (Ciii) result in or satisfy a condition to the payment of compensation that would, in combination with any plan other payment, result in an “excess parachute payment” within the meaning of Section 280G of the Code. No Target Company has incurred any Liability for any Tax imposed under Chapter 43 of the Code or arrangement which provides for post-employment civil liability under Section 502(i) or post-retirement medical or welfare benefits for retired or former employees or beneficiaries or dependents thereof(l) of ERISA.
(i) Except as set forth on Schedule 4.19(i), except pursuant to the extent (i) required by Section 4980B of the Code or similar state Law; (ii) for benefits through the end of the month of termination of employment or engagement, as applicable; (iii) for death or disability benefits attributable to deaths or disabilities occurring at or prior to termination of employment or engagement, as applicable; or (iv) for post-termination benefits from an insurer during any period to convert a group Company Benefit Plan to an individual plan, no Target Company provides health or welfare benefits to any former or retired employee, director or consultant or is obligated to provide such benefits to any active employee, director or consultant following such employee, director or consultant’s retirement or other applicable Lawtermination of employment or service.
(vj) With respect to each Parent There is no Company Benefit Plan that is subject to Title IV or Section 302 of ERISA or Section 412 or 430 of the Code (each, a “Parent Title IV Plan”): (A) there does not exist any failure to meet the “minimum funding standard” of Section 412 of the Code or 302 of ERISA (whether or not waived), (B) no such plan is in “at-risk” status for purposes of Section 430 409A of the Code. There is no Contract or plan to which any Target Company is a party or by which it is bound to compensate any employee, (C) the present value of accrued benefits under such Parent Title IV Plan, based upon the actuarial assumptions used consultant or director for funding purposes in the most recent actuarial report prepared by such Parent Title IV Plan’s actuary with respect penalty taxes paid pursuant to such Parent Title IV Plan, did not, as of its latest valuation date, exceed the then current fair market value Section 409A of the assets of such Parent Title IV Plan allocable to such accrued benefits, (D) no reportable event within the meaning of Section 4043(c) of ERISA has occurred, (E) all premiums to the PBGC have been timely paid in full, (F) no liability (other than for premiums to the PBGC) under Title IV of ERISA has been or is expected to be incurred by Parent or any of its ERISA Affiliates, and (G) the PBGC has not instituted proceedings to terminate any such Parent Title IV Plan and, to the knowledge of Parent, no circumstances exist which could serve as a basis for the institution of such proceedingsCode.
(vi) Except as set forth on Section 3.2(j)(vi) of the Parent Disclosure Letter, 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) increase any benefits otherwise payable or trigger any other obligation under any Parent Benefit Plan, (B) result in any acceleration of the time of payment, funding or vesting of any such benefits or (C) result in any limitation on the right of Parent or any of its Subsidiaries to amend, merge, terminate or receive a reversion of assets from any Parent Benefit Plan or related trust.
(vii) No Parent Benefit Plan provides for the gross-up or reimbursement of Taxes under Section 409A or 4999 of the Code or otherwise.
Appears in 1 contract
Samples: Merger Agreement (Global Blockchain Acquisition Corp.)
Benefit Plans. (i) Section 3.2(j)(i3.1(j)(i) of the Parent Company Disclosure Letter contains a true, complete and correct list of each material Benefit Plan sponsored, maintained or contributed to by Parent the Company or any of its Subsidiaries, or which Parent the Company or any of its Subsidiaries is obligated to sponsor, maintain or contribute to, other than any plan or with respect program maintained by a Governmental Entity to which Parent the Company or its Subsidiaries otherwise has any liability contribute pursuant to applicable Law (the “Parent Company Benefit Plans”). No Parent Company Benefit Plan is established or maintained outside of the United States or for the benefit of current or former employees employees, directors or individual independent contractors of Parent the Company or any of its Subsidiaries residing outside of the United States.
(ii) Parent The Company has delivered or made available to the Company prior to the date of this Agreement Parent a true, correct and complete copy of each Parent Company Benefit Plan currently in effect and, with respect thereto, if applicable, (A) all amendments, the current trust (or other funding vehicle) agreements, and the most recent summary plan descriptionsdescriptions and insurance Contracts, (B) the most recent annual report (Form 5500 series including, where applicable, all schedules and actuarial and accountants’ reports) filed with the Department of Labor IRS and the most recent actuarial report or other financial statement relating to such Parent Company Benefit Plan, (C) the most recent determination or opinion letter from the IRS (if applicable) for such Parent Company Benefit Plan and Plan, (D) any notice to or from the IRS or any office or representative Representative of the Department of Labor relating to any unresolved material Table of Contents compliance issues in respect of such Parent Company Benefit Plan, and (E) all material correspondence since December 31, 2020 from any Governmental Entity regarding any active or threatened legal proceeding regarding any Company Benefit Plan.
(iii) Except as would not have, or would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect on ParentEffect, (A) each Parent Company 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 Parent Company Benefit Plan intended to be qualified under Section 401(a) of the Code has received a favorable determination or opinion letter as to its qualifications qualification from the IRS or is entitled to rely on an advisory or opinion letter as to its qualifications 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 adversely affect the qualified status of any such plan, (C) neither Parent the Company nor any of its Subsidiaries has engaged in a transaction that has resulted in, or would reasonably be expected to could result in, the assessment of a civil penalty upon Parent the Company or any of its Subsidiaries pursuant to Section 409 or 502(i) of ERISA or a tax Tax imposed pursuant to Section 4975 or 4976 of the Code that has not been satisfied in full, (D) there does not now exist, nor, to the knowledge of Parent, nor do any circumstances exist that would reasonably be expected to result in, any Controlled Group Liability that would be a liability of Parent, the Company or any of its Subsidiaries or any of their respective ERISA AffiliatesSubsidiaries, (E) all payments required to be made by or with respect to each Parent Company Benefit Plan (including all contributions, insurance premiums or intercompany charges) with respect to all prior periods have been timely made or paid by Parent the Company or its Subsidiaries in accordance with the provisions of each of the Parent Company 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 Parent in accordance with GAAP and (F) there are no pending or, to the knowledge of ParentCompany’s knowledge, threatened claims by or on behalf of any Parent Company Benefit Plan, by any employee or beneficiary covered under any Parent Company Benefit Plan or otherwise involving any Parent Company Benefit Plan or any trusts related thereto (other than routine claims for benefits).
(iv) None No Company Benefit Plan is, and none of Parentthe Company, any of its Subsidiaries or any other entity (whether or not incorporated) that, together with the Company or a Subsidiary of their respective ERISA Affiliates the Company, 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 withwith respect to: (A) a plan subject to Title IV or Section 302 of ERISA or Section 412 or Section 430 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 plan” (as defined in Section 3(37) of ERISA), or (C) any plan or arrangement which provides for post-employment or post-retirement retiree medical or welfare benefits for retired or former employees or beneficiaries or dependents thereofbenefits, except pursuant to Section 4980B of the Code or other as required by applicable Law.
(v) With respect Neither the Company nor any Subsidiary has any obligation to each Parent provide (whether under a Company Benefit Plan that is subject or otherwise) health, accident, disability, life or other welfare benefits to Title IV any current or Section 302 of ERISA former director, employee or Section 412 or 430 other service provider of the Code (each, a “Parent Title IV Plan”): (A) there does not exist any failure to meet the “minimum funding standard” of Section 412 of the Code or 302 of ERISA (whether or not waived), (B) no such plan is in “at-risk” status for purposes of Section 430 of the Code, (C) the present value of accrued benefits under such Parent Title IV Plan, based upon the actuarial assumptions used for funding purposes in the most recent actuarial report prepared by such Parent Title IV Plan’s actuary with respect to such Parent Title IV Plan, did not, as of its latest valuation date, exceed the then current fair market value of the assets of such Parent Title IV Plan allocable to such accrued benefits, (D) no reportable event within the meaning of Section 4043(c) of ERISA has occurred, (E) all premiums to the PBGC have been timely paid in full, (F) no liability (other than for premiums to the PBGC) under Title IV of ERISA has been or is expected to be incurred by Parent Company or any of its ERISA AffiliatesSubsidiaries (or any spouse, and (Gbeneficiary or dependent of the foregoing) beyond the PBGC has not instituted proceedings to terminate any such Parent Title IV Plan and, to the knowledge termination of Parent, no circumstances exist which could serve as a basis for the institution employment or other service of such proceedingsdirector, employee or other service provider, other than health continuation coverage pursuant to Section 4980B of the Code.
(vi) Except as set forth on in Section 3.2(j)(vi3.1(j)(vi) of the Parent Company Disclosure Letter, 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, employee or other service provider of the Company or any of its Subsidiaries under any Company Benefit Plan or otherwise, (B) increase any benefits otherwise payable or trigger any other obligation under any Parent Company Benefit Plan, (BC) result in any acceleration of the time of payment, funding or vesting of any such benefits or (CD) result in any limitation on the right of Parent the Company or any of its Subsidiaries to amend, merge, terminate or receive a reversion of assets from any Parent Company Benefit Plan or related trust.
(vii) . No Parent Company Benefit Plan provides for for, and neither the Company nor any of its Subsidiaries is otherwise obligated to provide, the gross-up or reimbursement of Taxes under Section 409A or 4999 of the Code. Table of Contents
(vii) Each Company Benefit Plan has been maintained and operated in documentary and operational compliance in all material respects with Section 409A of the Code or otherwisean available exemption therefrom.
Appears in 1 contract
Benefit Plans. (ia) With respect to each Benefit Plan of a Target Company (each, a “Company Benefit Plan”), there are no funded benefit obligations for which contributions have not been made or properly accrued and there are no unfunded benefit obligations that have not been accounted for by reserves, or otherwise properly footnoted in accordance with GAAP on the Company Financials. No Target Company is or has in the past been a member of a “controlled group” for purposes of Section 3.2(j)(i414(b), (c), (m) or (o) of the Parent Disclosure Letter contains a trueCode, complete and correct list of each Benefit Plan sponsored, maintained or contributed by Parent or nor does any of its Subsidiaries, or which Parent or Target Company have any of its Subsidiaries is obligated to sponsor, maintain or contribute to, or Liability with respect to which Parent any collectively-bargained for plans, whether or its Subsidiaries otherwise has any liability (not subject to the “Parent Benefit Plans”). No Parent Benefit Plan is established or maintained outside provisions of the United States or for the benefit of current or former employees of Parent or any of its Subsidiaries residing outside of the United StatesERISA.
(ii) Parent has delivered or made available to the Company prior to the date of this Agreement a true, correct and complete copy of each Parent Benefit Plan currently in effect and, with respect thereto, if applicable, (A) all amendments, the current trust (or other funding vehicle) agreements, and the most recent summary plan descriptions, (B) 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 Parent Benefit Plan, (C) the most recent determination letter from the IRS (if applicable) for such Parent Benefit Plan and (D) any notice to or from the IRS or any office or representative of the Department of Labor relating to any unresolved compliance issues in respect of such Parent Benefit Plan.
(iiib) Except as would not reasonably be expected to havenot, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect on Parentwith respect to the Target Companies, (A) each Parent Company Benefit Plan is and has been maintained and administered operated at all times in compliance with its terms and with all applicable LawLaws in all respects, including, but not limited to, including ERISA and the Code and in each case the regulations thereunder, (B) each Parent Code. Each Company Benefit Plan which is intended to be qualified under “qualified” within the meaning of Section 401(a) of the Code (i) has been determined by the IRS to be so qualified (or is based on a prototype plan which has received a favorable opinion letter) during the period from its adoption to the date of this Agreement and (ii) its related trust has been determined to be exempt from taxation under Section 501(a) of the Code or the Target Companies have requested an initial favorable IRS determination or opinion letter as to its qualifications from of qualification and/or exemption within the IRS or is entitled to rely on an advisory or opinion letter as to its qualifications issued with respect to an IRS approved master and prototype or volume submitter planperiod permitted by applicable Law. To the Company’s Knowledge, and there are no existing circumstances or any events that have occurred that fact exists which would reasonably be expected to materially and adversely affect the qualified status of any such planCompany Benefit Plans or the exempt status of such trusts.
(c) Except as would not, (C) neither Parent nor any of its Subsidiaries has engaged individually or in a transaction that has resulted inthe aggregate, or would reasonably be expected to result in, the assessment of have a civil penalty upon Parent or any of its Subsidiaries pursuant to Section 409 or 502(i) of ERISA or a tax imposed pursuant to Section 4975 or 4976 of the Code that has not been satisfied in full, (D) there does not now exist, nor, Material Adverse Effect with respect to the knowledge of ParentTarget Companies, do any circumstances exist that would reasonably be expected to result in, any Controlled Group Liability that would be a liability of Parent, any of its Subsidiaries or any of their respective ERISA Affiliates, (E) all payments required to be made by or with respect to each Parent Company Benefit Plan: (i) such Company Benefit Plan (including has been administered and enforced in all contributions, insurance premiums or intercompany charges) with respect to all prior periods have been timely made or paid by Parent or its Subsidiaries respects in accordance with its terms, the provisions Code and ERISA; (ii) no breach of each of the Parent Benefit Plans and applicable Law orfiduciary duty has occurred in any respect; (iii) no Action is pending, 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 Parent in accordance with GAAP and (F) there are no pending or, to the knowledge of ParentCompany’s Knowledge, threatened claims by or on behalf of any Parent Benefit Plan, by any employee or beneficiary covered under any Parent Benefit Plan or otherwise involving any Parent Benefit Plan or any trusts related thereto (other than routine claims for benefitsbenefits arising in the ordinary course of administration).
; (iv) None of Parentno prohibited transaction, any of its Subsidiaries or any of their respective ERISA Affiliates 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 as defined in connection with: (A) a plan subject to Title IV or Section 302 406 of ERISA or Section 412 or Section 430 4975 of the Code, (B) a “multiple employer welfare arrangement” (as defined in Section 3(40) of ERISA)has occurred, a “multiple employer plan” (as defined in Section 413(c) of the Code) or a “multiemployer plan” (as defined in Section 3(37) of ERISA), or (C) any plan or arrangement which provides for post-employment or post-retirement medical or welfare benefits for retired or former employees or beneficiaries or dependents thereof, except excluding transactions effected pursuant to Section 4980B of the Code a statutory or other applicable Law.
administration exemption; and (v) With respect to each Parent Benefit Plan that is subject to Title IV or Section 302 of all contributions and premiums due have been made in all respects as required under ERISA or Section 412 or 430 of have been fully accrued for by the Code (each, a “Parent Title IV Plan”): (A) there does not exist any failure to meet the “minimum funding standard” of Section 412 of the Code or 302 of ERISA (whether or not waived), (B) no such plan is in “at-risk” status for purposes of Section 430 of the Code, (C) the present value of accrued benefits under such Parent Title IV Plan, based upon the actuarial assumptions used for funding purposes Target Companies in the most recent actuarial report prepared by such Parent Title IV Plan’s actuary with respect to such Parent Title IV Plan, did not, as of its latest valuation date, exceed the then current fair market value of the assets of such Parent Title IV Plan allocable to such accrued benefits, (D) no reportable event within the meaning of Section 4043(c) of ERISA has occurred, (E) all premiums to the PBGC have been timely paid in full, (F) no liability (other than for premiums to the PBGC) under Title IV of ERISA has been or is expected to be incurred by Parent or any of its ERISA Affiliates, and (G) the PBGC has not instituted proceedings to terminate any such Parent Title IV Plan and, to the knowledge of Parent, no circumstances exist which could serve as a basis for the institution of such proceedingsCompany Financials.
(vi) Except as set forth on Section 3.2(j)(vi) of the Parent Disclosure Letter, 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) increase any benefits otherwise payable or trigger any other obligation under any Parent Benefit Plan, (B) result in any acceleration of the time of payment, funding or vesting of any such benefits or (C) result in any limitation on the right of Parent or any of its Subsidiaries to amend, merge, terminate or receive a reversion of assets from any Parent Benefit Plan or related trust.
(vii) No Parent Benefit Plan provides for the gross-up or reimbursement of Taxes under Section 409A or 4999 of the Code or otherwise.
Appears in 1 contract
Samples: Merger Agreement (Forum Merger Corp)
Benefit Plans. (a) Set forth on Schedule 4.19(a) is a true and complete list of each material Benefit Plan of the Company (each, a “Company Benefit Plan”). With respect to each Company Benefit Plan, there are no funded benefit obligations for which contributions have not been made or properly accrued and there are no unfunded benefit obligations that have not been accounted for by reserves, or otherwise properly footnoted in accordance with GAAP on the Company Financials. The Company is not nor has it in the past six (6) years been a member of a “controlled group” for purposes of Section 414(b), (c), (m) or (o) of the Code, nor does the Company has any Liability with respect to any collectively-bargained for plans, whether or not subject to the provisions of ERISA. No statement, either written or oral, has been made by the Company to any Person with regard to any Company Benefit Plan that was not in accordance with the Company Benefit Plan in any material respect.
(b) Each Company Benefit Plan is and has been operated and administered at all times in compliance with all applicable Laws in all material respects, including ERISA and the Code. Each Company Benefit Plan which is intended to be “qualified” within the meaning of Section 401(a) of the Code (i) Section 3.2(j)(ihas been determined by the IRS to be so qualified (or is based on a prototype plan which has received a favorable opinion letter) of during the Parent Disclosure Letter contains a true, complete and correct list of each Benefit Plan sponsored, maintained or contributed by Parent or any of period from its Subsidiaries, or which Parent or any of its Subsidiaries is obligated to sponsor, maintain or contribute to, or with respect to which Parent or its Subsidiaries otherwise has any liability (the “Parent Benefit Plans”). No Parent Benefit Plan is established or maintained outside of the United States or for the benefit of current or former employees of Parent or any of its Subsidiaries residing outside of the United States.
(ii) Parent has delivered or made available to the Company prior adoption to the date of this Agreement a true, correct and complete copy of each Parent Benefit Plan currently in effect and, with respect thereto, if applicable, (A) all amendments, the current trust (or other funding vehicle) agreements, and the most recent summary plan descriptions, (B) 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 Parent Benefit Plan, (C) the most recent determination letter from the IRS (if applicable) for such Parent Benefit Plan and (Dii) any notice to or from the IRS or any office or representative of the Department of Labor relating to any unresolved compliance issues in respect of such Parent Benefit Plan.
(iii) Except as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on Parent, (A) each Parent Benefit Plan its related trust 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 thereunder, (B) each Parent Benefit Plan intended determined to be qualified exempt from taxation under Section 401(a501(a) of the Code or the Company has received a requested an initial favorable IRS determination or opinion letter as to its qualifications from of qualification and/or exemption within the IRS or is entitled to rely on an advisory or opinion letter as to its qualifications issued with respect to an IRS approved master and prototype or volume submitter planperiod permitted by applicable Law. To the Company’s Knowledge, and there are no existing circumstances or any events that have occurred that fact exists which would reasonably be expected to adversely affect the qualified status of any such plan, Company Benefit Plans or the exempt status of such trusts.
(Cc) neither Parent nor any of its Subsidiaries has engaged in a transaction that has resulted in, or would reasonably be expected to result in, the assessment of a civil penalty upon Parent or any of its Subsidiaries pursuant to Section 409 or 502(i) of ERISA or a tax imposed pursuant to Section 4975 or 4976 of the Code that has not been satisfied in full, (D) there does not now exist, nor, to the knowledge of Parent, do any circumstances exist that would reasonably be expected to result in, any Controlled Group Liability that would be a liability of Parent, any of its Subsidiaries or any of their respective ERISA Affiliates, (E) all payments required to be made by or with With respect to each Parent Company Benefit Plan which covers any current or former officer, director, consultant or employee (or beneficiary thereof) of the Company, the Company has provided to Purchaser accurate and complete copies, if applicable, of: (i) all Company Benefit Plan texts and agreements and related trust agreements or annuity Contracts (including any amendments, modifications or supplements thereto); (ii) all contributionssummary plan descriptions and material modifications thereto; (iii) the three (3) most recent Forms 5500, insurance premiums or intercompany chargesif applicable, and annual report, including all schedules thereto; (iv) the most recent annual and periodic accounting of plan assets; (v) the three (3) most recent nondiscrimination testing reports; (vi) the most recent determination letter received from the IRS, if any; (vii) the most recent actuarial valuation; and (viii) all material communications with any Governmental Authority.
(d) With respect to each Company Benefit Plan: (i) such Company Benefit Plan has been administered and enforced in all prior periods have been timely made or paid by Parent or its Subsidiaries material respects in accordance with its terms, the provisions Code and ERISA; (ii) no breach of each of the Parent Benefit Plans and applicable Law orfiduciary duty has occurred; (iii) no Action is pending, 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 Parent in accordance with GAAP and (F) there are no pending or, to the knowledge of ParentCompany’s Knowledge, threatened claims by or on behalf of any Parent Benefit Plan, by any employee or beneficiary covered under any Parent Benefit Plan or otherwise involving any Parent Benefit Plan or any trusts related thereto (other than routine claims for benefitsbenefits arising in the ordinary course of administration).
; (iv) None of Parentno prohibited transaction, any of its Subsidiaries or any of their respective ERISA Affiliates 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 as defined in connection with: (A) a plan subject to Title IV or Section 302 406 of ERISA or Section 412 or Section 430 4975 of the Code, has occurred, excluding transactions effected pursuant to a statutory or administration exemption; and (Bv) all contributions and premiums due through the Closing Date have been made in all material respects as required under ERISA or have been fully accrued in all material respects on the Company Financials.
(e) No Company Benefit Plan is a “multiple employer welfare arrangement” (as defined in Section 3(40) of ERISA), a “multiple employer benefit plan” (as defined in Section 413(c414(j) of the Code) or ), a “multiemployer plan” (as defined in Section 3(37) of ERISA)) or a “multiple employer plan” (as described in Section 413(c) of the Code) or is otherwise subject to Title IV of ERISA or Section 412 of the Code, and the Company has no Liability or otherwise could reasonably be expected to have any Liability, contingent or otherwise, under Title IV of ERISA and no condition presently exists that is expected to cause such Liability to be incurred. No Company Benefit Plan will become a multiple employer plan with respect to the Company immediately after the Closing Date. The Company does not currently maintain nor has in the past six (C6) years maintained, nor is required currently and has in the past six (6) years never been required to contribute to or otherwise participate in, a multiple employer welfare arrangement or voluntary employees’ beneficiary association as defined in Section 501(c)(9) of the Code.
(f) There is no arrangement under any Company Benefit Plan with respect to any employee that would result in the payment of any amount that by operation of Sections 280G of the Code would not be deductible by the Company and no arrangement exists pursuant to which the Company will be required to “gross up” or otherwise compensate any person because of the imposition of any excise tax on a payment to such person.
(g) With respect to each Company Benefit Plan which is a “welfare plan” (as described in Section 3(1) of ERISA): (i) no such plan or arrangement which provides for post-employment or post-retirement medical or welfare death benefits for retired with respect to current or former employees (or beneficiaries a dependent or beneficiary thereof) of the Company beyond their termination of employment (other than coverage mandated by Law, which is paid solely by such employees, dependents thereofor beneficiaries); and (ii) there are no reserves, except pursuant assets, surplus or prepaid premiums under any such plan. The Company has complied in all material respects with the provisions of Section 601 et seq. of ERISA and Section 4980B of the Code.
(h) The Company and each Company Benefit Plan that is a “group health plan” as defined in Section 733(a)(1) of ERISA (each, a “Health Plan”) is and has been for the past six (6) years in compliance, in all material respects, with the Patient Protection and Affordable Care Act of 2010, and, to the Knowledge of the Company, no event has occurred, and no condition or circumstance exists, that would subject the Company or any Health Plan to any material Liability for penalties or excise Taxes under Sections 4980D or 4980H of the Code.
(i) The consummation of the transactions contemplated by this Agreement and the Ancillary Documents will not: (i) entitle any individual to severance pay, unemployment compensation or other benefits or compensation; (ii) accelerate the time of payment or vesting, or increase the amount of any compensation due, or in respect of, any individual; or (iii) result in or satisfy a condition to the payment of compensation that would, in combination with any other payment, result in an “excess parachute payment” within the meaning of Section 280G of the Code. The Company has not incurred any Liability for any Tax imposed under Chapter 43 of the Code or civil liability under Section 502(i) or (l) of ERISA.
(j) Except to the extent required by Section 4980B of the Code or similar state Law, the Company provides no health or 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 applicable Lawtermination of employment or service.
(vk) With respect to each Parent Each Company Benefit Plan that is subject to Title IV or Section 302 of ERISA or Section 412 or 430 409A of the Code (eachhas been operated, a “Parent Title IV Plan”): (A) there does not exist any failure to meet administered and is in documentary compliance with the “minimum funding standard” applicable provisions of Section 412 of the Code or 302 of ERISA (whether or not waived), (B) no such plan is in “at-risk” status for purposes of Section 430 409A of the Code, (C) the present value of accrued benefits under such Parent Title IV Planregulations thereunder and other official guidance issued thereunder. There is no Contract or plan to which the Company is a party or by which it is bound to compensate any employee, based upon the actuarial assumptions used consultant or director for funding purposes in the most recent actuarial report prepared by such Parent Title IV Plan’s actuary with respect penalty taxes paid pursuant to such Parent Title IV Plan, did not, as of its latest valuation date, exceed the then current fair market value Section 409A of the assets of such Parent Title IV Plan allocable to such accrued benefits, (D) no reportable event within the meaning of Section 4043(c) of ERISA has occurred, (E) all premiums to the PBGC have been timely paid in full, (F) no liability (other than for premiums to the PBGC) under Title IV of ERISA has been or is expected to be incurred by Parent or any of its ERISA Affiliates, and (G) the PBGC has not instituted proceedings to terminate any such Parent Title IV Plan and, to the knowledge of Parent, no circumstances exist which could serve as a basis for the institution of such proceedingsCode.
(vi) Except as set forth on Section 3.2(j)(vi) of the Parent Disclosure Letter, 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) increase any benefits otherwise payable or trigger any other obligation under any Parent Benefit Plan, (B) result in any acceleration of the time of payment, funding or vesting of any such benefits or (C) result in any limitation on the right of Parent or any of its Subsidiaries to amend, merge, terminate or receive a reversion of assets from any Parent Benefit Plan or related trust.
(vii) No Parent Benefit Plan provides for the gross-up or reimbursement of Taxes under Section 409A or 4999 of the Code or otherwise.
Appears in 1 contract
Benefit Plans. (i) All "employee benefit plans" (as defined in Section 3.2(j)(i3(3) of the Parent Disclosure Letter contains a trueERISA) and all other compensation, complete bonus, pension, profit sharing, deferred compensation, stock ownership, stock purchase, stock option, phantom stock, retirement, employment, change-in-control, welfare, collective bargaining, severance, disability, death benefit, hospitalization and correct list of each Benefit Plan sponsoredmedical plans, agreements, arrangements or understandings that are maintained or contributed by Parent to (or previously contributed to) for the benefit of any current or former employee, officer or director of its Subsidiaries, or which Parent the Company or any of its Subsidiaries is obligated to sponsor, maintain or contribute to, or and with respect to which Parent or its Subsidiaries otherwise has any liability (the “Parent Benefit Plans”). No Parent Benefit Plan is established or maintained outside of the United States or for the benefit of current or former employees of Parent Company or any of its Subsidiaries residing outside of would reasonably be expected to have direct or contingent liability are defined as the United States.
(ii) Parent "Company Benefit Plans". The Company has heretofore delivered or made available to the Company prior to the date of this Agreement a true, correct Prison Realty true and complete copy copies of each Parent all Company Benefit Plan currently in effect Plans and, with respect theretoto each Company Benefit Plan, true and complete copies of the following documents: the most recent actuarial report, if applicableany; the most recent annual report, (A) all amendmentsif any; any related trust agreement, the current trust (annuity contract or other funding vehicle) agreementsinstrument, if any; the most recent determination letter, if any; and the most recent summary plan descriptionsdescription, if any.
(ii) Except as disclosed in Section 3.01(m) of the Company Disclosure Schedule: (A) none of the Company Benefit Plans is a "multiemployer plan" within the meaning of Section 3(37) of ERISA or is otherwise subject to Title IV of ERISA; (B) none of 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 Company Benefit Plans promises or other financial statement relating provides retiree medical or life insurance benefits to such Parent Benefit Plan, any person; (C) neither the most recent determination letter from the IRS (if applicable) for such Parent Company nor any of its Subsidiaries has any obligation to adopt or has taken any corporate action to adopt, any new Company Benefit Plan and or, except as required by law, to amend any existing Company Benefit Plan; (D) any notice to or from the IRS or any office or representative of the Department of Labor relating to any unresolved compliance issues in respect of such Parent Benefit Plan.
(iii) Except as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on Parent, (A) each Parent Company Benefit Plan has been maintained and administered in compliance with its terms and with the applicable Lawprovisions of ERISA, including, but not limited to, ERISA and the Code and in each case all other applicable laws, rules and regulations except for any failures to so administer any Company Benefit Plan as would not have a material adverse effect on the regulations thereunder, Company; (BE) each Parent Company Benefit Plan that is intended to be qualified under within the meaning of Section 401(a) of the Code is, to the Company's knowledge, so qualified; (F) neither the Company nor any entity required to be treated as a single employer with the Company under Section 414 of the Code has received any unsatisfied liability under Title IV of ERISA that would have a favorable determination or opinion letter as material adverse effect on the Company, (G) other than funding obligations and benefits claims payable in the ordinary course, to its qualifications from the IRS or is entitled to rely on an advisory or opinion letter as to its qualifications issued Company's knowledge, no event has occurred and no circumstance exists with respect to an IRS approved master and prototype or volume submitter plan, and there are no existing circumstances or any events Company Benefit Plan that have occurred could give rise to any liability that would reasonably be expected to adversely affect have a material adverse effect on the qualified status of any such planCompany, (C) neither Parent nor any whether directly or by reason of its Subsidiaries has engaged in a transaction that has resulted in, or would reasonably be expected to result in, the assessment of a civil penalty upon Parent or affiliation with any of its Subsidiaries pursuant to Section 409 or 502(i) of ERISA or a tax imposed pursuant to Section 4975 or 4976 of the Code that has not been satisfied in full, (D) there does not now exist, nor, to the knowledge of Parent, do any circumstances exist that would reasonably be expected to result in, any Controlled Group Liability that would be a liability of Parent, any of its Subsidiaries or any of their respective ERISA Affiliates, (E) all payments entity required to be made by or with respect to each Parent Benefit Plan (including all contributions, insurance premiums or intercompany charges) with respect to all prior periods have been timely made or paid by Parent or its Subsidiaries in accordance treated as a single employer with the provisions of each Company under Section 414 of the Parent Benefit Plans and applicable Law or, to the extent not required to be made or paid on or before Code; (H) as of the date hereof, have been reflected on the books and records of Parent in accordance with GAAP and (F) hereof there are no pending or, to the knowledge of Parentthe executive officers of the Company, threatened investigations, claims by or on behalf lawsuits in respect of any Parent Benefit Plan, by any employee or beneficiary covered under any Parent Company Benefit Plan or otherwise involving any Parent that would have a material adverse effect on the Company; (I) no amount payable pursuant to a Company Benefit Plan or any trusts related thereto (other than routine claims for benefits).
(iv) None plan, contract or arrangement of Parent, any of its Subsidiaries or any of their respective ERISA Affiliates 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 plan subject to Title IV or Company would be considered an "excess parachute payment" under Section 302 of ERISA or Section 412 or Section 430 280G of the Code, ; and (BJ) a “multiple employer welfare arrangement” (except as defined provided in Section 3(405.06(a) of ERISA)this Agreement, a “multiple employer plan” (as defined no Company Benefit Plan exists that could result in Section 413(c) the payment to any current or former employee, officer or director of the Code) Company of any money or other property or accelerate or provide any other rights or benefits as a “multiemployer plan” (as defined in Section 3(37) of ERISA), or (C) any plan or arrangement which provides for post-employment or post-retirement medical or welfare benefits for retired or former employees or beneficiaries or dependents thereof, except pursuant to Section 4980B result of the Code or other applicable Law.
(v) With respect to each Parent Benefit Plan that is subject to Title IV or Section 302 of ERISA or Section 412 or 430 of the Code (each, a “Parent Title IV Plan”): (A) there does not exist any failure to meet the “minimum funding standard” of Section 412 of the Code or 302 of ERISA (whether or not waived), (B) no such plan is in “at-risk” status for purposes of Section 430 of the Code, (C) the present value of accrued benefits under such Parent Title IV Plan, based upon the actuarial assumptions used for funding purposes in the most recent actuarial report prepared transactions contemplated by such Parent Title IV Plan’s actuary with respect to such Parent Title IV Plan, did not, as of its latest valuation date, exceed the then current fair market value of the assets of such Parent Title IV Plan allocable to such accrued benefits, (D) no reportable event this Agreement which would constitute an excess parachute payment within the meaning of Section 4043(c) of ERISA has occurred, (E) all premiums to the PBGC have been timely paid in full, (F) no liability (other than for premiums to the PBGC) under Title IV of ERISA has been or is expected to be incurred by Parent or any of its ERISA Affiliates, and (G) the PBGC has not instituted proceedings to terminate any such Parent Title IV Plan and, to the knowledge of Parent, no circumstances exist which could serve as a basis for the institution of such proceedings.
(vi) Except as set forth on Section 3.2(j)(vi) 280G of the Parent Disclosure Letter, 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) increase any benefits otherwise payable or trigger any other obligation under any Parent Benefit Plan, (B) result in any acceleration of the time of payment, funding or vesting of any such benefits or (C) result in any limitation on the right of Parent or any of its Subsidiaries to amend, merge, terminate or receive a reversion of assets from any Parent Benefit Plan or related trustCode.
(vii) No Parent Benefit Plan provides for the gross-up or reimbursement of Taxes under Section 409A or 4999 of the Code or otherwise.
Appears in 1 contract
Samples: Merger Agreement (Corrections Corporation of America)
Benefit Plans. (i) Section 3.2(j)(i) of the Parent Disclosure Letter contains a true, A true and complete and correct list of each all material Company Benefit Plan sponsored, maintained or contributed by Parent or any of its Subsidiaries, or which Parent or any of Plans has been provided in the Company Data Room. The Company and its Subsidiaries is obligated have no material liability for life, health, medical or other welfare benefits to sponsor, maintain or contribute to, or with respect to which Parent or its Subsidiaries otherwise has any liability (the “Parent Benefit Plans”). No Parent Benefit Plan is established or maintained outside of the United States or for the benefit of current or former employees of Parent or any of its Subsidiaries residing outside of the United Statesbeneficiaries or dependents thereof.
(ii) Parent has delivered or made available to the Company prior to the date of this Agreement a true, correct and complete copy of each Parent Benefit Plan currently in effect and, with respect thereto, if applicable, ((A) all amendments, no Company Benefit Plan is a "registered pension plan" as that term is defined in the current trust (or other funding vehicle) agreements, and the most recent summary plan descriptions, Tax Act; (B) the most recent annual report (Form 5500 series including, where applicable, all schedules no Company Benefit Plan is a Multi- Employer Plan; and actuarial and accountants’ reports) filed with the Department of Labor and the most recent actuarial report or other financial statement relating to such Parent Benefit Plan, (C) there is no entity other than the most recent determination letter from the IRS (if applicable) for such Parent Benefit Plan and (D) Company and/or its Subsidiaries participating in any notice to or from the IRS or any office or representative of the Department of Labor relating to any unresolved compliance issues in respect of such Parent Company Benefit Plan.
(iii) Except Each material Company 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 Company Benefit Plan, as of the date hereof and the Amendment Date, have been timely made in accordance with the terms of each material Company Benefit Plan and applicable Laws, and all obligations in respect of each Company Benefit Plan have been properly accrued and reflected in the audited consolidated financial statements for the Company in accordance with IFRS as of and for the fiscal year ended on December 31, 2015, including the notes thereto and the report by the Company's auditors thereon. There are no investigations, examinations or other proceeding, action or claim initiated by a Governmental Entity (other than routine claims for payment of benefits) pending or to the knowledge of the Company or its Subsidiaries, threatened involving any Company Benefit Plan or its assets, and no facts exist which could reasonably be expected to give rise to any such investigation, examination or other proceeding, action or claim (other than routine claims for payment of benefits).
(iv) No event has occurred respecting any Company Benefit Plan which would entitle a Person (without the consent of the Company) to wind-up or terminate any Company Benefit Plan in whole or in part, except where such wind-up or termination would not reasonably be expected to havehave a Company Material Adverse Effect.
(v) There has been no amendment to, announcement by the Company or any of its Subsidiaries relating to or change in employee participation, coverage, or benefits provided under any Company Benefit Plan which would increase materially the expense of maintaining such plan above the level of the expense incurred therefor for the most recent fiscal year. There has been no formal plan, commitment, or promise whether legally binding or not, to create any additional material Company Benefit Plans.
(vi) There are no unfunded liabilities in respect of any Company Benefit Plan which provides pension benefits, superannuation benefits or retirement savings, or any supplemental pension plans.
(vii) No liabilities or obligations under any of the Company Benefit Plans in respect of any employees on disability would, individually or in the aggregate, a Material Adverse Effect on Parent, (A) each Parent 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 thereunder, (B) each Parent Benefit Plan intended to be qualified under Section 401(a) of the Code has received a favorable determination or opinion letter as to its qualifications from the IRS or is entitled to rely on an advisory or opinion letter as to its qualifications 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 adversely affect have a Company Material Adverse Effect.
(viii) None of the qualified status of Company Benefit Plans, or any insurance contract relating to any such plan, (C) neither Parent nor any of its Subsidiaries has engaged in a transaction that has resulted in, or would reasonably be expected to result in, the assessment of a civil penalty upon Parent or any of its Subsidiaries pursuant to Section 409 or 502(i) of ERISA or a tax imposed pursuant to Section 4975 or 4976 of the Code that has not been satisfied in full, (D) there does not now exist, nor, to the knowledge of Parent, do any circumstances exist that would reasonably be expected to result in, any Controlled Group Liability that would be a liability of Parent, any of its Subsidiaries or any of their respective ERISA Affiliates, (E) all payments required to be made by or with respect to each Parent Benefit Plan (including all contributions, insurance premiums or intercompany charges) with respect to all prior periods have been timely made or paid by Parent or its Subsidiaries in accordance with the provisions of each of the Parent 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 Parent in accordance with GAAP and (F) there are no pending or, to the knowledge of Parent, threatened claims by or on behalf of any Parent Company Benefit Plan, by any employee require or beneficiary covered under any Parent Benefit Plan permit a retroactive increase in premiums or otherwise involving any Parent payments on termination of the Company Benefit Plan or any trusts related thereto (other than routine claims for benefits)insurance contract relating to any such Company Benefit Plan, except where such increase or payments, individually or in the aggregate, would not have a Company Material Adverse Effect.
(ivix) None of Parent, any of its Subsidiaries or any of their respective ERISA Affiliates 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 plan subject to Title IV or Section 302 of ERISA or Section 412 or Section 430 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 plan” (as defined in Section 3(37) of ERISA), or (C) any plan or arrangement which provides for post-employment or post-retirement medical or welfare benefits for retired or former employees or beneficiaries or dependents thereof, except pursuant to Section 4980B of the Code or other applicable Law.
(v) With respect to each Parent Benefit Plan that is subject to Title IV or Section 302 of ERISA or Section 412 or 430 of the Code (each, a “Parent Title IV Plan”): (A) there does not exist any failure to meet the “minimum funding standard” of Section 412 of the Code or 302 of ERISA (whether or not waived), (B) no such plan is in “at-risk” status for purposes of Section 430 of the Code, (C) the present value of accrued benefits under such Parent Title IV Plan, based upon the actuarial assumptions used for funding purposes in the most recent actuarial report prepared by such Parent Title IV Plan’s actuary with respect to such Parent Title IV Plan, did not, as of its latest valuation date, exceed the then current fair market value of the assets of such Parent Title IV Plan allocable to such accrued benefits, (D) no reportable event within the meaning of Section 4043(c) of ERISA has occurred, (E) all premiums to the PBGC have been timely paid in full, (F) no liability (other than for premiums to the PBGC) under Title IV of ERISA has been or is expected to be incurred by Parent or any of its ERISA Affiliates, and (G) the PBGC has not instituted proceedings to terminate any such Parent Title IV Plan and, to the knowledge of Parent, no circumstances exist which could serve as a basis for the institution of such proceedings.
(vi) Except as set forth on Section 3.2(j)(vi) of the Parent Disclosure Letter, neither Neither the execution and delivery of this Agreement Agreement, nor the consummation of the transactions contemplated hereby (either alone or in conjunction with any other event) Arrangement will (A) increase entitle any benefits otherwise payable or trigger any other obligation under any Parent Benefit Plan, (B) result in any acceleration employees of the time of payment, funding or vesting of any such benefits or (C) result in any limitation on the right of Parent Company or any of its Subsidiaries to amendseverance 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 obligation pursuant to, any of the Company Benefit Plans; or (C) except as may be required in connection with Section 5.5, limit or restrict the right of Company or, after the consummation of the Arrangement, Parent to merge, amend or terminate or receive a reversion of assets from any Parent Benefit Plan or related trust.
(vii) No Parent Benefit Plan provides for the gross-up or reimbursement of Taxes under Section 409A or 4999 of the Code or otherwiseCompany Benefit Plans.
Appears in 1 contract
Benefit Plans. (ia) No employee participates in or is otherwise eligible to receive payments or benefits from any Company Benefit Plan not listed in Section 3.2(j)(i) 4.15 of the Company Disclosure Letter. The Company has made available to Parent Disclosure Letter contains a true, complete and correct list of each Benefit Plan sponsored, maintained or contributed by Parent or any of its Subsidiaries, or which Parent or any of its Subsidiaries is obligated to sponsor, maintain or contribute to, or with respect to which Parent or its Subsidiaries otherwise has any liability (the “Parent each Company Benefit Plans”). No Parent Benefit Plan is established or maintained outside of the United States or for the benefit of current or former employees of Parent or any of its Subsidiaries residing outside of the United States.
(ii) Parent has delivered or made available to the Company prior to the date of this Agreement Plan, a true, correct and complete copy of each Parent Benefit Plan currently in effect (or, to the extent no such copy exists, an accurate description) thereof and, with respect thereto, if to the extent applicable, : (A) all amendments, the current trust (or other funding vehicle) agreements, and the most recent summary plan descriptions, (Bi) the most recent annual report documents constituting the Company Benefit Plan and all amendments thereto; (Form 5500 series including, where applicable, all schedules and actuarial and accountants’ reportsii) filed with the Department of Labor and the most recent actuarial report any related trust agreement or other financial statement relating to such Parent Benefit Plan, funding instrument; (Ciii) the most recent determination letter received from the IRS Internal Revenue Service (if applicable“IRS”); (iv) for such Parent the most recent summary plan description and summary of material modifications; (v) the three most recent Forms 5500 and attached schedules; and (vi) all material correspondence with any Governmental Authority regarding the operation or the administration of any Company Benefit Plan given or received within the last three years. All references to the “Company” in this Section 4.15 shall refer to the Company and any employer that would be considered a single employer with the Company under Sections 414(b), (Dc), (m) any notice to or from the IRS or any office or representative (o) of the Department of Labor relating to Code.
(b) Since the Balance Sheet Date, there has been no material amendment or modification of, or material change to, any unresolved compliance issues in respect of such Parent Company Benefit Plan.
(iiic) Except as would The Company does not reasonably be expected maintain or contribute to, and has not within the preceding six years maintained or contributed to, or had during such period the obligation to havemaintain or contribute to, individually or in the aggregate, a Material Adverse Effect on Parent, (A) each Parent any Company Benefit Plan has been maintained that is (i) subject to Section 412 of the Code or Title IV of ERISA other than the Brookstone Pension Plan and administered (ii) a Multiemployer Plan or a “multiple employer plan” within the meaning of the Code or ERISA.
(d) Each Company Benefit Plan is in compliance in all material respects with its terms and with all applicable Law, including, but not limited to, ERISA and the Code and in each case the regulations thereunder, (B) each Parent Laws. Each Company Benefit Plan which is intended to be qualified qualify under Section 401(a) of the Code has received been issued a favorable determination or opinion letter as to its qualifications from by the IRS or is entitled to rely on an advisory or opinion letter as to its qualifications issued with respect to an IRS approved master such qualification and prototype its related trust has been determined to be exempt from taxation under Section 501(a) of the Code. To the Knowledge of the Company, no event has occurred since the date of such qualification or volume submitter planexemption that would adversely affect such qualification or exemption or the imposition of any liability, and there are no existing circumstances penalty or tax under ERISA or the Code with respect to any events that have occurred Company Benefit Plan that would reasonably be expected to adversely affect have a Company Material Adverse Effect. To the qualified status of any such plan, (C) neither Parent nor any of its Subsidiaries has engaged in a transaction that has resulted in, or would reasonably be expected to result in, the assessment of a civil penalty upon Parent or any of its Subsidiaries pursuant to Section 409 or 502(i) of ERISA or a tax imposed pursuant to Section 4975 or 4976 Knowledge of the Code that has not been satisfied in fullCompany, (D) there does not now exist, nor, to the knowledge of Parent, do any circumstances exist that would reasonably be expected to result in, any Controlled Group Liability that would be a liability of Parent, any of its Subsidiaries or any of their respective ERISA Affiliates, (E) all payments required to be made by or with respect to each Parent Benefit Plan (including all contributions, insurance premiums or intercompany charges) with respect to all prior periods have been timely made or paid by Parent or its Subsidiaries in accordance with the provisions of each of the Parent 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 Parent in accordance with GAAP and (F) there are no pending or, to the knowledge of Parent, threatened claims by or on behalf of any Parent Company Benefit Plan, by any employee or beneficiary covered under any Parent Benefit Plan or otherwise involving any Parent Benefit Plan or any trusts related thereto (other than routine claims for benefits), no Encumbrances, Legal Proceedings or complaints to or by any Person have been filed or made against such Company Benefit Plan or the Company or against any other Person and no such Encumbrances, Legal Proceedings or complaints are contemplated or threatened.
(ive) None of Parent, any of its Subsidiaries or any of their respective ERISA Affiliates 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 plan subject to Title IV or Section 302 of ERISA or Section 412 or Section 430 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 plan” (as defined in Section 3(37) of ERISA), or (C) any plan or arrangement which provides for post-employment or post-retirement medical or welfare benefits for retired or former employees or beneficiaries or dependents thereof, except pursuant to Section 4980B of the Code or other applicable Law.
(v) With respect to each Parent Benefit Plan that is subject to Title IV or Section 302 of ERISA or Section 412 or 430 of the Code (each, a “Parent Title IV Plan”): (A) there does not exist any failure to meet the “minimum funding standard” of Section 412 of the Code or 302 of ERISA (whether or not waived), (B) no such plan is in “at-risk” status for purposes of Section 430 of the Code, (C) the present value of accrued benefits under such Parent Title IV Plan, based upon the actuarial assumptions used for funding purposes in the most recent actuarial report prepared by such Parent Title IV Plan’s actuary with respect to such Parent Title IV Plan, did not, as of its latest valuation date, exceed the then current fair market value of the assets of such Parent Title IV Plan allocable to such accrued benefits, (D) no reportable event within the meaning of Section 4043(c) of ERISA has occurred, (E) all premiums to the PBGC have been timely paid in full, (F) no liability (other than for premiums to the PBGC) under Title IV of ERISA has been or is expected to be incurred by Parent or any of its ERISA Affiliates, and (G) the PBGC has not instituted proceedings to terminate any such Parent Title IV Plan and, to the knowledge of Parent, no circumstances exist which could serve as a basis for the institution of such proceedings.
(vi) Except as set forth on Section 3.2(j)(vi) of the Parent Disclosure Letter, neither Neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby will (either alone or in conjunction combination with any other another event) will (Ai) result in any payment becoming due, or increase the amount of any compensation due, to any current or former employee of the Company; (ii) increase any benefits otherwise payable or trigger any other obligation under any Parent Company Benefit Plan, ; (Biii) result in any the acceleration of the time of payment, funding payment or vesting of any such benefits compensation or benefits; or (Civ) result in the payment of any limitation on amount that could reasonably be construed, individually or in combination with any other such payment, to constitute an “excess parachute payment,” as defined in Section 280G(b)(1) of the right of Parent or any of its Subsidiaries to amend, merge, terminate or receive a reversion of assets from any Parent Benefit Plan or related trustCode.
(viif) No Parent The Company has no material liabilities with respect to any misclassification of any Person as an independent contractor rather than as an employee.
(g) Neither the Company nor any Company Benefit Plan provides for Plan, nor to the grossKnowledge of the Company any “disqualified person” (as defined in Section 4975 of the Code) or “party in interest” (as defined in Section 3(18) of ERISA), has engaged in any non-up or reimbursement exempt prohibited transaction (within the meaning of Taxes under Section 409A or 4999 4975 of the Code or otherwiseSection 406 of ERISA) which has had or would reasonably be expected to have a Company Material Adverse Effect.
(h) No Company Securities constitute a material part of the assets of any Company Benefit Plan that is subject to ERISA.
(i) Except as set forth in Section 4.15 of the Company Disclosure Letter, no Company Benefit Plan covers employees of the Company outside of the United States, and the Acquired Companies have no material unpaid liabilities with respect to any Company Benefit Plan covering employees outside of the United States.
(j) There is no Contract, plan or arrangement covering any Person that, individually or in the aggregate, could give rise to the payment of any amount that would not be deductible by the Company by reason of Section 162(m) of the Code.
Appears in 1 contract
Samples: Merger Agreement (Brookstone Inc)
Benefit Plans. (ia) Set forth in Section 3.2(j)(i2.9(a) of the Parent Company Disclosure Letter contains a true, Schedule is an accurate and complete and correct list of each Benefit Plan. For purposes of this Agreement, “Benefit Plans” include each employee benefit plan (within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”)) and each equity based compensation, incentive, bonus, profit sharing, savings, deferred compensation, health, medical, dental, life insurance, disability, accident, supplemental unemployment or retirement or fringe benefit plan or program maintained by the Company or to which the Company (including for purposes of this Section 2.9 all employers that would be treated together with the Company as a single employer within the meaning of Section 414 of the Code) contributes (or has any obligation to contribute) has or could have any liability or is a party.
(b) Each Benefit Plan sponsoredis in material compliance with all applicable Legal Requirements and has been administered and operated in all material respects in accordance with its terms. The Company has no Knowledge of the occurrence of any non-exempt prohibited transaction, maintained as defined in Section 4975 of the Code or contributed by Parent or any Section 406 of its SubsidiariesERISA, or which Parent or any of its Subsidiaries is obligated to sponsor, maintain or contribute to, or with respect to which Parent or its Subsidiaries otherwise has any liability (the “Parent Benefit Plans”). No Parent Benefit Plan is established or maintained outside of the United States or for the benefit of current or former employees of Parent or any of its Subsidiaries residing outside of the United States.
(ii) Parent has delivered or made available to the Company prior to the date of this Agreement a true, correct and complete copy of each Parent Benefit Plan currently in effect and, with respect thereto, if applicable, (A) all amendments, the current trust (or other funding vehicle) agreements, and the most recent summary plan descriptions, (B) 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 Parent Benefit Plan, (C) the most recent determination letter from the IRS (if applicable) for such Parent Benefit Plan and (D) any notice to or from the IRS or any office or representative of the Department of Labor relating to any unresolved compliance issues in respect of such Parent Benefit Plan.
(iiic) Except as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on Parent, (A) each Parent Each 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 thereunder, (B) each Parent Benefit Plan which is intended to be qualified under “qualified” within the meaning of Section 401(a) of the Code has received a favorable determination or opinion letter as to its qualifications from the IRS or is entitled to rely on an advisory or opinion letter as to its qualifications issued with respect to an IRS approved master and prototype or volume submitter plansuch qualified status, and there are no existing circumstances or any events that have event has occurred that would and no condition exists which could be reasonably be expected to adversely affect result in the revocation of the qualified status of any such plan.
(d) Each Benefit Plan and each employment, (C) neither Parent nor severance, change in control or other compensatory agreement with any Service Provider, is compliant, in form and in operation, with Section 409A of its Subsidiaries has engaged in the Code, to the extent applicable. The Company is not a transaction that has resulted inparty to, or would reasonably be expected to result inotherwise obligated under, any Contract, arrangement or policy that provides for the assessment gross-up of a civil penalty upon Parent or any Taxes imposed by Section 409A(a)(1)(B) of its Subsidiaries pursuant to Section 409 or 502(ithe Code.
(e) No Benefit Plan has assets that include securities issued by the Company.
(f) No Benefit Plan is covered by Title IV of ERISA or a tax imposed pursuant subject to Section 4975 or 4976 412 of the Code or Section 302 of ERISA.
(g) No Benefit Plan is a “multiple employer plan” (within the meaning of the Code or ERISA). Neither the Company nor any affiliated employer that would be treated together with the Company as a single employer within the meaning of Section 414 of the Code is or ever has been a party to any multiemployer plan, within the meaning of Section 4001(a)(3) of ERISA, or made contributions to any such plan.
(h) Full payment has been timely made of all amounts which the Company is required under applicable Legal Requirements or under any Benefit Plan or related agreement to have paid, and the Company has timely deposited all amounts withheld from Employees into the appropriate trusts, funds or accounts. The Company has made adequate provisions, in accordance with GAAP in their books and records for all Liabilities under all Benefit Plans that have accrued but have not been satisfied in fullpaid because they are not yet due under the terms of any such Benefit Plan or any related agreement or applicable Legal Requirement. Since the Balance Sheet Date, (D) there does not now exist, nor, to the knowledge of Parent, do any circumstances exist no event has occurred or condition exists that would reasonably be expected to result in, any Controlled Group Liability that would be in a liability material increase in the level of Parent, any of its Subsidiaries such amounts paid or any of their respective ERISA Affiliates, (E) all payments required to be made by or with respect to each Parent Benefit Plan (including all contributions, insurance premiums or intercompany charges) with respect to all prior periods have been timely made or paid by Parent or its Subsidiaries in accordance with accrued for the provisions of each of the Parent 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 Parent in accordance with GAAP and (F) there are no pending or, to the knowledge of Parent, threatened claims by or on behalf of any Parent Benefit Plan, by any employee or beneficiary covered under any Parent Benefit Plan or otherwise involving any Parent Benefit Plan or any trusts related thereto (other than routine claims for benefits)most recently ended fiscal year.
(ivi) None of Parent, any of its Subsidiaries or any of their respective ERISA Affiliates 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 plan subject to Title IV or Section 302 of ERISA or Section 412 or Section 430 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 plan” (as defined in Section 3(37) of ERISA), or (C) any plan or arrangement which No Benefit Plan provides for post-employment or post-retirement medical retiree health, life insurance or other welfare benefits for retired or former employees or beneficiaries or dependents thereofbenefits, except pursuant to Section 4980B of as required by the Code or other applicable LawConsolidated Omnibus Budget Reconciliation Act (“COBRA”).
(vj) With respect to each Parent The execution of this Agreement and the consummation of the transactions contemplated hereby do not constitute a triggering event under any Benefit Plan that is subject to Title IV or Section 302 of ERISA agreement with any current or Section 412 former Employee and/or adviser or 430 consultant of the Code Company (each, a “Parent Title IV PlanConsultant”): (A) there does not exist any failure to meet the , and together with Employees, “minimum funding standard” of Section 412 of the Code or 302 of ERISA (whether or not waivedService Providers”), which (Beither alone or upon the occurrence of any additional or subsequent event) no will or may result in any payment, “parachute payment” (as such plan term is defined in “at-risk” status for purposes of Section 430 280G of the Code), (C) severance, bonus, retirement or job security or similar type benefit, or increase any benefits or accelerate the present value payment, vesting or funding of accrued any benefits under such Parent Title IV Plan, based upon the actuarial assumptions used for funding purposes in the most recent actuarial report prepared by such Parent Title IV Plan’s actuary with respect to such Parent Title IV Plan, did not, as of its latest valuation date, exceed the then current fair market value of the assets of such Parent Title IV Plan allocable to such accrued benefits, (D) no reportable event within the meaning of Section 4043(c) of ERISA has occurred, (E) all premiums to the PBGC have been timely paid in full, (F) no liability (other than for premiums to the PBGC) under Title IV of ERISA has been or is expected to be incurred by Parent or any of its ERISA Affiliates, and (G) the PBGC has not instituted proceedings to terminate any such Parent Title IV Plan and, to the knowledge of Parent, no circumstances exist which could serve as a basis for the institution of such proceedingsService Provider.
(vik) Except No Service Provider will be entitled to any payment, benefit or right or any accelerated, vested or increased payment, benefit or right as set forth on Section 3.2(j)(vi) a result of such Employee’s, former Employee’s or director’s or Consultant's termination or the execution of this Agreement or the consummation of the Parent Disclosure Letter, neither transactions contemplated hereby. No Benefit Plan provides for the payment of change in control or similar type payments or benefits. Neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby (either alone will require accelerated funding by the Company of any Benefit Plan or give rise to any liability of the Company in conjunction connection with any other eventBenefit Plan.
(l) will No liability, claim, action, litigation, audit, examination, investigation or proceeding has been made, commenced or, to the Knowledge of the Company, threatened with respect to any Benefit Plan which could result in a material liability of the Company or any Affiliate thereof.
(Am) increase Except as required to maintain the tax qualified status of any benefits otherwise payable Benefit Plan intended to qualify under Section 401(a) of the Code, no condition or trigger circumstance exists that would prevent the amendment or termination of any other obligation Benefit Plan.
(n) The Company has classified correctly all individuals who perform services for them under any all applicable Legal Requirements as common law employees, independent contractors or leased employees.
(o) The Company has delivered or made available to Parent true and complete copies of each Benefit Plan, together with all amendments thereto, and all contracts and agreements relating to each Benefit Plan, as well as the most recent actuarial reports, reviewed financial statements and annual report on Form 5500 filed with the U.S. Internal Revenue Service with respect to such Benefit Plans for which such report was required by applicable Legal Requirement.
(Bp) result in any acceleration There have been no acts or omissions by the Company that have given rise to or could reasonably be expected to give rise to material fines, penalties, taxes or related charges under Sections 502(c), 502(i) or 4071 of ERISA or Chapter 43 of the time of paymentCode for which the Company may be liable.
(q) There are no claims (other than routine claims for benefits) pending or, funding to the Company’s knowledge, threatened, involving any Benefit Plan or vesting the assets of any such benefits Benefit Plan.
(r) Neither the Company nor any of its directors, officers, employees or (C) result in any limitation on other fiduciary has committed any breach of fiduciary responsibility imposed by ERISA that would subject the right of Parent Company or any of its Subsidiaries directors, officers or employees or any other fiduciary to amend, merge, terminate or receive a reversion of assets from any Parent Benefit Plan or related trustliability under ERISA.
(vii) No Parent Benefit Plan provides for the gross-up or reimbursement of Taxes under Section 409A or 4999 of the Code or otherwise.
Appears in 1 contract
Samples: Merger Agreement (Attunity LTD)
Benefit Plans. (i) Section 3.2(j)(i4.1(o) of the Parent Disclosure Letter contains sets forth a true, correct and complete and correct list of all the material "employee benefit plans" (as that phrase is defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")) in each Benefit Plan case, that is sponsored, maintained or contributed to or required to be contributed to by Parent the Company or by any trade or business, whether or not incorporated (an "ERISA Affiliate"), that together with the Company would be deemed a "single employer" within the meaning of its SubsidiariesSection 4001(b) of ERISA, or to which Parent the Company or an ERISA Affiliate is party, whether written or oral, for the benefit of any current or former employee, officer or director of the Company or any of its Subsidiaries is obligated to sponsor, maintain or contribute to, or with respect to which Parent or its Subsidiaries otherwise has any liability (the “Parent Benefit "Company ERISA Plans”). No Parent Benefit Plan ") and any other material benefit or compensation plan, program or arrangement, in each case, that is established sponsored, maintained or maintained outside of contributed to or required to be contributed to by the United States Company or an ERISA Affiliate, whether written or oral, for the benefit of any current or former employees employee, officer or director of Parent the Company or any of its Subsidiaries residing outside of in the United States.
States (ii) Parent the Company ERISA Plans and such other plans being referred to as the "Company Plans"). The Company has delivered furnished or made available to the Company prior to the date of this Agreement Parent and its representatives a true, correct and complete copy of every document pursuant to which each Parent Benefit Company Plan currently in effect andis established or operated (including any summary plan descriptions), with respect thereto, if applicable, (A) all amendments, the current trust (or other funding vehicle) agreementsa written description of any Company Plan for which there is no written document, and the most recent summary plan descriptionsannual reports, (B) the most recent annual report (Form 5500 series including, where applicable, all schedules financial statements and actuarial and accountants’ reportsvaluations with respect to each Company Plan. Except as set forth in Section 4.1(o) filed with the Department of Labor and the most recent actuarial report or other financial statement relating to such Parent Benefit Plan, (C) the most recent determination letter from the IRS (if applicable) for such Parent Benefit Plan and (D) any notice to or from the IRS or any office or representative of the Department of Labor relating Disclosure Letter and except where the failure to any unresolved compliance issues in respect of such Parent Benefit Plan.
(iii) Except as comply would not reasonably be expected to have, individually or in the aggregate, have a Material Adverse Effect on ParentEffect:
(i) none of the Company ERISA Plans is a "multiemployer plan" within the meaning of ERISA;
(ii) none of the Company Plans promises or provides retiree health benefits or retiree life insurance benefits to any person;
(iii) none of the Company Plans provides for payment of a benefit, the increase of a benefit amount, the payment of a contingent benefit or the acceleration of the payment or vesting of a benefit determined or occasioned, in whole or in part, by reason of the execution of this Agreement or the consummation of the transactions contemplated by this Agreement;
(Aiv) neither the Company nor any of its Subsidiaries has an obligation to adopt, or is considering the adoption of, any new benefit or compensation plan, program or arrangement or, except as required by law, the amendment of an existing Company Plan;
(v) each Parent Benefit Plan has been maintained and administered in compliance with its terms and with applicable Law, including, but not limited to, Company ERISA and the Code and in each case the regulations thereunder, (B) each Parent Benefit Plan intended to be qualified under Section 401(a) of the Code has received a favorable determination or notification, advisory and/or opinion letter letter, as to its qualifications applicable, from the IRS Internal Revenue Service that it is so qualified or is entitled still has remaining a period of time under applicable Treasury Regulations or Internal Revenue Service pronouncements in which to rely on an advisory or opinion apply for such a letter as and to its qualifications issued with respect make any amendments necessary to an IRS approved master obtain a favorable determination and prototype or volume submitter plan, and there are no existing circumstances or any events that have nothing has occurred since the date of such letter that would reasonably be expected to adversely affect the qualified status of such Company ERISA Plan;
(vi) each Company Plan has been operated in accordance with its terms and the requirements of all applicable law, and no prohibited transaction described in Section 406 of ERISA or Section 4975 of the Code has occurred with respect to any such plan, the Company ERISA Plan;
(Cvii) neither Parent the Company nor any of its Subsidiaries or members of their "controlled group" has engaged in a transaction that has resulted in, incurred any direct or would reasonably be expected to result in, the assessment of a civil penalty upon Parent or any of its Subsidiaries pursuant to Section 409 or 502(i) of indirect liability under ERISA or a tax imposed pursuant to Section 4975 or 4976 of the Code that has not been satisfied in fullconnection with the termination of, (D) there does not now existwithdrawal from or failure to fund, norany Company ERISA Plan or other retirement plan or arrangement, to the knowledge of Parent, do any circumstances exist and no fact or event exists that would reasonably be expected to result in, give rise to any Controlled Group Liability that would be a liability of Parent, any of its Subsidiaries or any of their respective ERISA Affiliates, such liability;
(Eviii) all payments required to be made by or with respect to each Parent Benefit Plan (including all contributions, insurance premiums or intercompany charges) with respect to all prior periods have been timely made or paid by Parent or its Subsidiaries in accordance with the provisions aggregate accumulated benefit obligations of each of the Parent 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 Parent in accordance with GAAP and (F) there are no pending or, to the knowledge of Parent, threatened claims by or on behalf of any Parent Benefit Plan, by any employee or beneficiary covered under any Parent Benefit Company ERISA Plan or otherwise involving any Parent Benefit Plan or any trusts related thereto (other than routine claims for benefits).
(iv) None of Parent, any of its Subsidiaries or any of their respective ERISA Affiliates 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 plan subject to Title IV or Section 302 of ERISA or Section 412 or Section 430 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 plan” (as defined in Section 3(37) of ERISA), or (C) any plan or arrangement which provides for post-employment or post-retirement medical or welfare benefits for retired or former employees or beneficiaries or dependents thereof, except pursuant to Section 4980B of the Code or other applicable Law.
(v) With respect to each Parent Benefit Plan that is subject to Title IV or Section 302 of ERISA or Section 412 or 430 of the Code (each, a “Parent Title IV Plan”): (A) there does not exist any failure to meet the “minimum funding standard” of Section 412 of the Code or 302 of ERISA (whether or not waived), (B) no such plan is in “at-risk” status for purposes of Section 430 as of the Code, (C) the present value date of accrued benefits under such Parent Title IV Plan, based upon the actuarial assumptions used for funding purposes in the most recent actuarial report valuation prepared by for such Parent Title IV Plan’s actuary with respect to Company ERISA Plan and based on the discount rate and other actuarial assumptions used in such Parent Title IV Plan, did not, as of its latest valuation date, valuation) do not exceed the then current fair market value of the assets of such Parent Title IV Company ERISA Plan allocable (as of the date of such valuation);
(ix) the Company is not aware of any claims relating to such accrued the Company Plans, other than routine claims for benefits;
(x) none of the Company Plans provides for benefits or other participation therein, and the Company has received no claims or demands for participation in or benefits under any Company Plan, by any individual classified or treated by the Company as an independent contractor; and
(Dxi) no reportable event neither the Company nor any Subsidiary is a party to any agreement, contract, arrangement or plan that has resulted, or would result, separately or in the aggregate, in the payment of any "excess parachute payments" within the meaning of Section 4043(c) of ERISA has occurred, (E) all premiums to the PBGC have been timely paid in full, (F) no liability (other than for premiums to the PBGC) under Title IV of ERISA has been or is expected to be incurred by Parent or any of its ERISA Affiliates, and (G) the PBGC has not instituted proceedings to terminate any such Parent Title IV Plan and, to the knowledge of Parent, no circumstances exist which could serve as a basis for the institution of such proceedings.
(vi) Except as set forth on Section 3.2(j)(vi) of the Parent Disclosure Letter, 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) increase any benefits otherwise payable or trigger any other obligation under any Parent Benefit Plan, (B) result in any acceleration of the time of payment, funding or vesting of any such benefits or (C) result in any limitation on the right of Parent or any of its Subsidiaries to amend, merge, terminate or receive a reversion of assets from any Parent Benefit Plan or related trust.
(vii) No Parent Benefit Plan provides for the gross-up or reimbursement of Taxes under Section 409A or 4999 280G of the Code as a result of any transaction or otherwiseevent contemplated by this Agreement.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Niner Acquistion Inc)
Benefit Plans. (ia) Section 3.2(j)(iSchedule 3.14(a) of the Parent Disclosure Letter contains sets forth a true, complete and correct list of each Benefit Plan sponsored, maintained or contributed by Parent or any of its Subsidiaries, or which Parent or any of its Subsidiaries is obligated to sponsor, maintain or contribute to, or with respect to which Parent or its Subsidiaries otherwise has any liability (the “Parent all Company Benefit Plans”). No Parent Benefit Plan is established or maintained outside of the United States or for the benefit of current or former employees of Parent or any of its Subsidiaries residing outside of the United States.
(ii) Parent has delivered or made available to the Company prior to the date of this Agreement a true, correct and complete A copy of each Parent Company Benefit Plan, and all contracts relating thereto, or to the funding thereof, has been supplied to Purchaser, along with, to the extent applicable, an accurate written description of each Company Benefit Plan currently that is not in effect and, with respect thereto, if written form. To the extent applicable, (A) all amendments, the current trust (or other funding vehicle) agreements, and the most recent summary plan descriptions, (B) the most recent annual report (Form 5500 series includingreport, where applicableactuarial report, all schedules accountant’s opinion of the plan’s financial statements, summary plan description, summaries of material modification and actuarial summary of benefits and accountants’ reports) filed coverage, IRS determination or opinion letter with the Department of Labor and the most recent actuarial report or other financial statement relating respect to such Parent each Company Benefit Plan, (C) the most recent determination letter from the IRS (if applicable) for such Parent Benefit Plan and (D) any notice to or from the IRS or any office or representative a current schedule of the Department of Labor relating assets held with respect to any unresolved compliance issues in respect of such Parent funded Company Benefit Plan, has been supplied to Purchaser.
(iiib) Except as 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 not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on Parent, (A) each Parent cause any such Company Benefit Plan to fail to comply with such requirements and no notice has been maintained issued by any Governmental Authority questioning or challenging such compliance. All Company Benefit Plans that are subject to Section 409A of the Code comply with Section 409A in form and have been administered in compliance accordance with its their terms and with applicable Law, including, but not limited to, ERISA and Section 409A of the Code and in each case the regulations thereunder, Code.
(Bc) each Parent Each Company Benefit Plan intended that is an employee pension benefit plan is the subject of a favorable determination or opinion letter issued by the IRS with respect to be the qualified status of such plan under Section 401(a) of the Code has received a favorable determination or opinion letter as to its qualifications from and the IRS or is entitled to rely on an advisory or opinion letter as to its qualifications 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 adversely affect the qualified tax-exempt status of any trust that forms a part of such planplan under Section 501(a) of the Code; all amendments to any such plan for which the remedial amendment period (within the meaning of Section 401(b) of the Code and applicable regulations) has expired are covered by a favorable IRS determination letter; and to Owner’s Knowledge, (C) neither Parent nor any of its Subsidiaries no event has engaged in a transaction occurred that has resulted in, will or would reasonably be expected to result in, give rise to disqualification of any such plan under such sections. None of the assessment assets of a civil penalty upon Parent any Company Benefit Plan are invested in employer securities or any of its Subsidiaries pursuant to employer real property.
(d) There have been no “prohibited transactions” (as described in Section 409 or 502(i) 406 of ERISA or a tax imposed pursuant to Section 4975 or 4976 of the Code that has not been satisfied in full, (DCode) there does not now exist, nor, with respect to the knowledge any Company Benefit Plan and none of Parent, do any circumstances exist that would reasonably be expected to result inOwner, any Controlled Group Liability that would be a liability of Parent, any of its Subsidiaries Company or any of their respective ERISA Affiliates, (E) all payments required to be made by or with respect to each Parent Benefit Plan (including all contributions, insurance premiums or intercompany charges) with respect to all prior periods have been timely made or paid by Parent or its Subsidiaries Affiliates has engaged in accordance with the provisions of each of the Parent 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 Parent in accordance with GAAP and (F) there any prohibited transaction. There are no actions, suits or claims (other than routine claims for benefits) pending or, to the knowledge of ParentOwner’s Knowledge, threatened claims by or on behalf of involving any Parent Benefit Plan, by any employee or beneficiary covered under any Parent Company Benefit Plan or otherwise involving the assets thereof and no facts exist that could give rise to any Parent Benefit Plan such actions, suits or any trusts related thereto claims (other than routine claims for benefits).
(ive) None of ParentThere have been no acts or omissions by Owner, any of its Subsidiaries Company or any of their respective ERISA Affiliates maintainsthat have given rise to or would reasonably be expected to give rise to interest, contributes fines, penalties, taxes or related charges under Section 502 of ERISA or Chapters 43, 47, 68 or 100 of the Code for which any Company or any of its ERISA Affiliates may be liable or under Section 409A of the Code for which any Company, any of its ERISA Affiliates 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 3.14(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 any Company to any compensation or benefit 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, (iii) increase the amount of compensation or benefits due to any current or former director, officer, employee or independent contractor of any Company (or their beneficiaries), or (iv) result in any breach or violation of, default under or limit any Company’s right to amend, modify or terminate any Company Benefit Plan. Except as set forth on Schedule 3.14(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 280G of the Code (without regard to subsection (b)(4) thereof)). Neither any Company nor any of its ERISA Affiliates is a nonqualified entity within the meaning of Section 457A of the Code. No Company Benefit Plan or any contract, agreement, plan, policy, or arrangement with any employee, officer, director, consultant or independent contractor of any Company or any of their respective ERISA Affiliates provides for a “gross-up” or similar payment in respect of any taxes that may become payable under Sections 409A or 4999 of the Code.
(g) No Company nor any of its ERISA Affiliates has now or at any time had an obligation to contribute to, or participates in, or has ever during the past six (6) years maintained, contributed any Liability with respect to, or participated in, or otherwise has any obligation or liability in connection with: (Ai) a plan subject to Title IV or of ERISA, (ii) a Multiemployer Plan, (iii) a “multiple employer plan” within the meaning of Section 302 of ERISA or Section 412 or Section 430 413(c) of the Code, (Biv) a “multiple employer welfare arrangement” (as defined in within the meaning of Section 3(40) of ERISA), a “multiple employer plan” (as defined in Section 413(c) of the Code) or a “multiemployer plan” (as defined in Section 3(37) of ERISA), or (Cv) any plan or arrangement which provides for post-employment or post-retirement medical or welfare benefits life insurance benefits, other than statutory liability for retired or former employees or beneficiaries or dependents thereof, except pursuant to providing group health plan continuation coverage under Part 6 of Title I of ERISA and Section 4980B of the Code or other applicable Lawstate Law at the sole cost of the individual.
(vh) 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 the Ordinary Course of Business 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 any Company (or any successor thereto) to unilaterally amend or terminate any Company Benefit Plan in accordance with its terms.
(j) With respect to each Parent Company Benefit Plan which is a group health plan (as defined in Section 5001(b)(1) of the Code), each Company has complied, in all material respects, with the requirements of Section 4980B of the Code. Each 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 subject to Title IV affordable for themselves, such that there will not be any liability or excise tax under Section 302 4980H(a) or (b) of ERISA or Section 412 or 430 the Code, and (ii) has met its reporting obligation under Sections 6055 and 6056 of the Code (eachas applicable). No event has occurred, a “Parent Title IV and no conditions or circumstances exist, that would reasonably be expected to subject any Company, or any Company Benefit Plan”): (A) there does not exist any failure , to meet the “minimum funding standard” of Section 412 penalties or excise taxes under Sections 4980D or 4980H of the Code or 302 of ERISA (whether or not waived), (B) no such plan is in “at-risk” status for purposes of Section 430 any other provision of the Code, (C) the present value of accrued benefits under such Parent Title IV Plan, based upon the actuarial assumptions used for funding purposes in the most recent actuarial report prepared by such Parent Title IV Plan’s actuary with respect to such Parent Title IV Plan, did not, as of its latest valuation date, exceed the then current fair market value of the assets of such Parent Title IV Plan allocable to such accrued benefits, (D) no reportable event within the meaning of Section 4043(c) of ERISA has occurred, (E) all premiums to the PBGC have been timely paid in full, (F) no liability (other than for premiums to the PBGC) under Title IV of ERISA has been or is expected to be incurred by Parent or any of its ERISA Affiliates, and (G) the PBGC has not instituted proceedings to terminate any such Parent Title IV Plan and, to the knowledge of Parent, no circumstances exist which could serve as a basis for the institution of such proceedingsHealthcare Reform Laws.
(vi) Except as set forth on Section 3.2(j)(vi) of the Parent Disclosure Letter, 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) increase any benefits otherwise payable or trigger any other obligation under any Parent Benefit Plan, (B) result in any acceleration of the time of payment, funding or vesting of any such benefits or (C) result in any limitation on the right of Parent or any of its Subsidiaries to amend, merge, terminate or receive a reversion of assets from any Parent Benefit Plan or related trust.
(vii) No Parent Benefit Plan provides for the gross-up or reimbursement of Taxes under Section 409A or 4999 of the Code or otherwise.
Appears in 1 contract
Samples: Contribution Agreement (Proficient Auto Logistics, Inc)
Benefit Plans. (ia) Section 3.2(j)(i) 3.11 of the Parent Disclosure Letter Schedules contains a true, complete and correct list of each Benefit Plan material benefit, retirement, employment, consulting, compensation, incentive, bonus, option, restricted unit, unit appreciation right, phantom equity, change in control, severance, vacation, paid time off, welfare and fringe-benefit agreement, plan, policy and program in effect and covering one or more employees of the Company, former employees of the Company, current or former directors of the Company or the beneficiaries or dependents of any such persons, and is maintained, sponsored, maintained or contributed by Parent or any of its Subsidiaries, or which Parent or any of its Subsidiaries is obligated to sponsor, maintain or contribute to, or with respect required to be contributed to the Company, or under which Parent or its Subsidiaries otherwise the Company has any material liability for premiums or benefits (as listed on Section 3.11 of the Disclosure Schedules, each, a “Parent Benefit PlansPlan”). No Parent Benefit Plan is established or maintained outside of the United States or for the benefit of current or former employees of Parent or any of its Subsidiaries residing outside of the United States.
(iib) Parent has delivered or made available to To the Company prior to the date of this Agreement a trueCompany’s Knowledge, correct and complete copy of each Parent Benefit Plan currently in effect and, with respect thereto, if applicable, (A) all amendments, the current trust (or other funding vehicle) agreements, and the most recent summary plan descriptions, (B) 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 Parent Benefit Plan, (C) the most recent determination letter from the IRS (if applicable) for such Parent Benefit Plan and related trust materially complies with all applicable laws. Each Benefit Plan (D) any notice to or from the IRS or any office or representative of the Department of Labor relating to any unresolved compliance issues in respect of such Parent a “Qualified Benefit Plan.
(iii”) Except as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on Parent, (A) each Parent 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 thereunder, (B) each Parent Benefit Plan that is intended to be qualified under Section 401(a) of the U.S. Internal Revenue Code of 1986, as amended (the “Code”) has received a favorable determination letter from the IRS, or with respect to a prototype plan, can rely on an opinion letter as from the IRS to its qualifications the prototype plan sponsor, to the effect that such Qualified Benefit Plan is so qualified and that the plan and the trust related thereto are exempt from federal income taxes under Sections 401(a) and 501(a), respectively, of the Code, and, to the Company’s Knowledge, nothing has occurred that could reasonably be expected to cause the revocation of such determination letter from the IRS or is entitled to rely the unavailability of reliance on an advisory or such opinion letter from the IRS, as to its qualifications issued with applicable. With respect to an IRS approved master and prototype any Benefit Plan, to the Company’s Knowledge, no event has occurred or volume submitter plan, and there are no existing circumstances or any events that have occurred that would is reasonably be expected to adversely affect the qualified status of any such plan, (C) neither Parent nor any of its Subsidiaries has engaged in a transaction occur that has resulted in, in or would reasonably be expected subject Seller Group to result in, the assessment of a civil penalty upon Parent or any of its Subsidiaries pursuant to Section 409 or 502(i) of ERISA or a tax imposed pursuant to under Section 4975 or 4976 of the Code that has not been satisfied in full, (D) there does not now exist, nor, to the knowledge of Parent, do any circumstances exist that would reasonably be expected to result in, any Controlled Group Liability that would be a liability of Parent, any of its Subsidiaries or any of their respective ERISA Affiliates, (E) all payments required to be made by or with respect to each Parent Benefit Plan (including all contributions, insurance premiums or intercompany charges) with respect to all prior periods have been timely made or paid by Parent or its Subsidiaries in accordance with the provisions of each of the Parent 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 Parent in accordance with GAAP and (F) there are no pending or, to the knowledge of Parent, threatened claims by or on behalf of any Parent Benefit Plan, by any employee or beneficiary covered under any Parent Benefit Plan or otherwise involving any Parent Benefit Plan or any trusts related thereto (other than routine claims for benefits).
(iv) None of Parent, any of its Subsidiaries or any of their respective ERISA Affiliates 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 plan subject to Title IV or Section 302 of ERISA or Section 412 or Section 430 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 plan” (as defined in Section 3(37) of ERISA), or (C) any plan or arrangement which provides for post-employment or post-retirement medical or welfare benefits for retired or former employees or beneficiaries or dependents thereof, except pursuant to Section 4980B of the Code or other applicable Law.
(v) With respect to each Parent Benefit Plan that is subject to Title IV or Section 302 of ERISA or Section 412 or 430 of the Code (each, a “Parent Title IV Plan”): (A) there does not exist any failure to meet the “minimum funding standard” of Section 412 of the Code or 302 of ERISA (whether or not waived), (B) no such plan is in “at-risk” status for purposes of Section 430 of the Code, (C) the present value of accrued benefits under such Parent Title IV Plan, based upon the actuarial assumptions used for funding purposes in the most recent actuarial report prepared by such Parent Title IV Plan’s actuary with respect to such Parent Title IV Plan, did not, as of its latest valuation date, exceed the then current fair market value of the assets of such Parent Title IV Plan allocable to such accrued benefits, (D) no reportable event within the meaning of Section 4043(c) of ERISA has occurred, (E) all premiums to the PBGC have been timely paid in full, (F) no liability (other than for premiums to the PBGC) under Title IV of ERISA has been or is expected to be incurred by Parent or any of its ERISA Affiliates, and (G) the PBGC has not instituted proceedings to terminate any such Parent Title IV Plan and, to the knowledge of Parent, no circumstances exist which could serve as a basis for the institution of such proceedings.
(vi) Except as set forth on Section 3.2(j)(vi) of the Parent Disclosure Letter, 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) increase any benefits otherwise payable or trigger any other obligation under any Parent Benefit Plan, (B) result in any acceleration of the time of payment, funding or vesting of any such benefits or (C) result in any limitation on the right of Parent or any of its Subsidiaries to amend, merge, terminate or receive a reversion of assets from any Parent Benefit Plan or related trust.
(vii) No Parent Benefit Plan provides for the gross-up or reimbursement of Taxes under Section 409A or 4999 of the Code or otherwise.
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Benefit Plans. (ia) Section 3.2(j)(i4.12(a) of the Parent Company Disclosure Letter contains Schedule sets forth a true, true and complete and correct list of each Company Benefit Plan sponsored, maintained or contributed by Parent or any as of its Subsidiaries, or which Parent or any of its Subsidiaries is obligated to sponsor, maintain or contribute to, or with respect to which Parent or its Subsidiaries otherwise has any liability (the “Parent Benefit Plans”). No Parent Benefit Plan is established or maintained outside of the United States or for the benefit of current or former employees of Parent or any of its Subsidiaries residing outside of the United States.
(ii) Parent has delivered or made available to the Company prior to the date of this Agreement Agreement. With respect to each Company Benefit Plan, the Company has made available to Parent a truecurrent, correct complete and complete accurate copy (or to the extent no copy exists, an accurate summary) of (i) each Parent such Company Benefit Plan, including any material amendments thereto, (ii) any trust, insurance, annuity or other funding instrument related thereto, (iii) any summary plan description and other written communications (or a description of any oral communications) by the Company or a Subsidiary thereof to Company Employees concerning the extent of the benefits provided under a Company Benefit Plan currently in effect and, with respect thereto, if and (iv) for the two most recent years and to the extent applicable, (A) all amendments, the current trust (or other funding vehicle) agreements, and the most recent summary plan descriptionsaudited financial statements, (B) 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 valuation reports prepared with respect thereto (where such statements or reports are required to such Parent Benefit Plan, be prepared under Applicable Law or otherwise reasonably available) and (C) the most recent determination letter from the IRS (if applicable) for such Parent Benefit Plan Form 5500 and (D) any notice to or from the IRS or any office or representative of the Department of Labor relating to any unresolved compliance issues in respect of such Parent Benefit Planattached schedules.
(iiib) Except as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on Parent, (A) each Parent 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 thereunder, (B) each Parent Each Company Benefit Plan intended to be qualified under “qualified” or registered within the meaning of Section 401(a) of the Code (or any comparable provision under applicable non-U.S. Laws) has received a favorable determination or opinion letter as to its qualifications such qualification or registration from the IRS (or any comparable Governmental Entity), and, to the Knowledge of the Company, nothing has occurred, whether by action or failure to act, that could reasonably be expected to cause a loss of such qualification. The most recent favorable determination letter for each Company Benefit Plan intended to be so “qualified” has been made available by the Company to Parent.
(c) Each Company Benefit Plan has been administered in material compliance with its terms and the applicable provisions of ERISA, the Code and all other applicable Laws, rules and regulations. As of the date hereof and, except as has not adversely affected, or would not reasonably be likely to adversely affect, the Company and its Subsidiaries, taken as a whole, in a material way, (i) there are no pending or threatened investigations, claims or lawsuits in respect of any Company Benefit Plan, (ii) no facts or circumstances exist that could give rise to any such actions, suits, or claims, (iii) no written or oral communication has been received from the Pension Benefit Guaranty Corporation (“PBGC”) in respect of any Company Benefit 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 plan in connection with the transaction contemplated herein during the past two years, (iv) no administrative investigation, audit, or other administrative proceedings by the PBGC, the Internal Revenue Service, or other governmental agencies are pending, threatened, or in progress (including any routine requests for information from the PBGC) and (v) no “reportable event” (as such term is entitled to rely on an advisory defined in Section 4043 of ERISA) or opinion letter non-exempt “prohibited transaction” (as to its qualifications issued such term is defined in Section 406 of ERISA and Section 4975 of the Code) has occurred with respect to an IRS approved master any Company Benefit Plan. No Company Benefit Plan has failed to meet the minimum funding standards (as determined under Section 303 of ERISA and prototype Section 430 of the Code) applicable to such plan and neither the Company nor any of its ERISA Affiliates has any liability under ERISA Section 303(j), 303(k), or volume submitter plan4062(e) or Code Section 4971, 4972, or 4979. Neither the Company nor any of its ERISA Affiliates has incurred any current or projected liability in respect of post-employment or post-retirement health, medical or life insurance or other benefits for Company Employees, except for continuation coverage under Part 6 of Subtitle I of ERISA and there are no existing circumstances Section 4980B of the Code or otherwise except as may be required pursuant to any events that have occurred other applicable Law.
(d) No Company Benefit Plan or Company Benefit Agreement exists that would reasonably be expected to adversely affect the qualified status of (i) entitle any such planCompany Employee to any payment, benefit or right, or increase in payment, benefit or right, (Cii) neither Parent nor accelerate the time of payment or vesting or result in any of its Subsidiaries has engaged in payment or funding (through a transaction that has resulted in, grantor trust or would reasonably be expected to result in, the assessment of a civil penalty upon Parent or any of its Subsidiaries pursuant to Section 409 or 502(iotherwise) of ERISA compensation or a tax imposed benefits under, increase the amount payable or result in any other material obligation pursuant to Section 4975 or 4976 of the Code that has not been satisfied in full, (D) there does not now exist, nor, to the knowledge of Parent, do any circumstances exist that would reasonably be expected to result in, any Controlled Group Liability that would be a liability of Parentto, any of its Subsidiaries the Company Benefit Plans or Company Benefit Agreements, (iii) limit or restrict the right of the Company to merge, amend or terminate any of their respective ERISA Affiliates, the Company Benefit Plans or Company Benefit Agreements or (Eiv) all result in payments required to be made by or with respect to each Parent Benefit Plan (including all contributions, insurance premiums or intercompany charges) with respect to all prior periods have been timely made or paid by Parent or its Subsidiaries in accordance with the provisions of each under any of the Parent Company Benefit Plans and applicable Law oror Company Benefit Agreements which would not be deductible under Section 280G of the Code, to in each case as a result of the extent not required to be made execution of this Agreement, Stockholder Approval or paid on the consummation of the transactions contemplated hereby (whether alone or before the date hereof, have been reflected on the books and records of Parent in accordance connection with GAAP and (F) there are no pending or, to the knowledge of Parent, threatened claims by or on behalf of any Parent Benefit Plan, by any employee or beneficiary covered under any Parent Benefit Plan or otherwise involving any Parent Benefit Plan or any trusts related thereto (other than routine claims for benefitssubsequent event(s)).
(ive) None No Company Benefit Plan is a “multiemployer plan” (as defined in Section 4001(a)(3) of ParentERISA), any of its Subsidiaries or any of their respective ERISA Affiliates 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 plan subject to Title IV or Section 302 of ERISA or Section 412 or Section 430 of the Code, (B) a “multiple employer welfare arrangement” (as defined in within the meaning of Section 3(40) of ERISA), a “multiple employer plan” (as defined described in Section 413(c) of the Code) Code or a “multiemployer plan” (as defined in Section 3(37) Sections 4063 or 4064 of ERISA), or (C) any plan or other arrangement which provides for post-employment or post-retirement medical or welfare benefits for retired or former employees or beneficiaries or dependents thereof, except pursuant to Section 4980B of the Code or other applicable Law.
(v) With respect to each Parent Benefit Plan that is subject to Title IV or Section 302 of ERISA or Section 412 or 430 of the Code (each, funded by a “Parent Title IV Plan”): (A) there does not exist any failure to meet the “minimum funding standard” of Section 412 of the Code or 302 of ERISA (whether or not waived), (B) no such plan is in “at-risk” status for purposes of Section 430 of the Code, (C) the present value of accrued benefits under such Parent Title IV Plan, based upon the actuarial assumptions used for funding purposes in the most recent actuarial report prepared by such Parent Title IV Plan’s actuary with respect to such Parent Title IV Plan, did not, as of its latest valuation date, exceed the then current fair market value of the assets of such Parent Title IV Plan allocable to such accrued benefits, (D) no reportable event voluntary employees’ beneficiary association within the meaning of Section 4043(c501(c)(9) of ERISA has occurredthe Code and neither the Company, (E) all premiums to the PBGC have been timely paid in full, (F) no liability (other than for premiums to the PBGC) under Title IV of ERISA has been or is expected to be incurred by Parent or nor any of its ERISA Affiliates, and (G) the PBGC has not instituted proceedings to terminate at any time sponsored, maintained, participated in or contributed to, or has or had any liability or obligation in respect of, any such Parent Title IV Plan and, to the knowledge of Parent, no circumstances exist which could serve as a basis for the institution of such proceedingsplan.
(vif) Except as set forth on Section 3.2(j)(vi4.12(f) of the Parent Company Disclosure LetterSchedule, neither no Company Benefit Plan exists which would, as a result of the execution and delivery of this Agreement nor or the consummation of the transactions contemplated hereby (either whether alone or in conjunction connection with any other eventsubsequent event(s)), reasonably be expected to (i) will entitle any Company Employee to any payment, benefit or right, or increase in payment, benefit or right, (Aii) accelerate the time of payment or vesting or result in any payment or funding (through a grantor trust or otherwise) of compensation or benefits under, increase any benefits otherwise the amount payable or trigger result in any other material obligation under pursuant to, any Parent of the Company Benefit PlanPlans, (Biii) limit or restrict the right of the Company to merge, amend or terminate any of the Company Benefit Plans or (iv) result in payments under any acceleration of the time of payment, funding or vesting of any such benefits or (C) result in any limitation on the right of Parent or any of its Subsidiaries to amend, merge, terminate or receive a reversion of assets from any Parent Company Benefit Plan or related trust.
(vii) No Parent Benefit Plan provides for the gross-up or reimbursement of Taxes Plans which would not be deductible under Section 409A or 4999 280G of the Code or otherwiseCode.
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Benefit Plans. (ia) Section 3.2(j)(iSet forth on Schedule 4.19(a) of the Parent Disclosure Letter contains is a true, true and complete and correct list of each Benefit Plan sponsoredof a Target Company (each, maintained a “Company Benefit Plan”). With respect to each Company Benefit Plan, there are no funded benefit obligations for which contributions have not been made or contributed properly accrued and there are no unfunded benefit obligations that have not been accounted for by Parent or any of its Subsidiariesreserves, or which Parent otherwise properly footnoted in accordance with GAAP on the Company Financials. No Target Company is or has in the past been a member of a “controlled group” for purposes of Section 414(b), (c), (m) or (o) of the Code, nor does any of its Subsidiaries is obligated to sponsor, maintain or contribute to, or Target Company have any Liability with respect to which Parent any collectively-bargained for plans, whether or its Subsidiaries otherwise has any liability (not subject to the “Parent Benefit Plans”)provisions of ERISA. No Parent statement, either written or oral, has been made by any Target Company to any Person with regard to any Company Benefit Plan that was not in accordance with the Company Benefit Plan in any material respect.
(b) Each Company Benefit Plan is established or maintained outside and has been operated at all times in compliance with all applicable Laws in all material respects, including ERISA and the Code. Each Company Benefit Plan which is intended to be “qualified” within the meaning of Section 401(a) of the United States Code (i) has been determined by the IRS to be so qualified (or for is based on a prototype plan which has received a favorable opinion letter) during the benefit of current or former employees of Parent or any of period from its Subsidiaries residing outside of the United States.
(ii) Parent has delivered or made available to the Company prior adoption to the date of this Agreement and (ii) its related trust has been determined to be exempt from taxation under Section 501(a) of the Code or the Target Companies have requested an initial favorable IRS determination of qualification and/or exemption within the period permitted by applicable Law. No fact exists which could adversely affect the qualified status of such Company Benefit Plans or the exempt status of such trusts.
(c) With respect to each Company Benefit Plan which covers any current or former officer, director, consultant or employee (or beneficiary thereof) of a trueTarget Company, correct the Company has provided to Purchaser accurate and complete copy of each Parent Benefit Plan currently in effect and, with respect theretocopies, if applicable, of: (Ai) all Company Benefit Plan texts and agreements and related trust agreements or annuity Contracts (including any amendments, modifications or supplements thereto); (ii) all summary plan descriptions and material modifications thereto; (iii) the current trust three (or other funding vehicle3) agreementsmost recent Forms 5500, if applicable, and the most recent summary plan descriptionsannual report, including all schedules thereto; (Biv) the most recent annual report and periodic accounting of plan assets; (Form 5500 series including, where applicable, all schedules and actuarial and accountants’ reportsv) filed with the Department of Labor and the three (3) most recent actuarial report or other financial statement relating to such Parent Benefit Plan, nondiscrimination testing reports; (Cvi) the most recent determination letter received from the IRS IRS, if any; (if applicablevii) for such Parent Benefit Plan the most recent actuarial valuation; and (Dviii) all material communications with any notice to or from the IRS or any office or representative of the Department of Labor relating to any unresolved compliance issues in respect of such Parent Benefit PlanGovernmental Authority.
(iiid) Except as would not reasonably be expected With respect to have, individually or in the aggregate, a Material Adverse Effect on Parent, each Company Benefit Plan: (Ai) each Parent such Company Benefit Plan has been maintained administered and administered enforced in compliance all material respects in accordance with its terms and with applicable Lawterms, including, but not limited to, ERISA and the Code and in each case the regulations thereunder, ERISA; (Bii) each Parent Benefit Plan intended to be qualified under Section 401(ano breach of fiduciary duty has occurred; (iii) of the Code has received a favorable determination or opinion letter as to its qualifications from the IRS or no Action is entitled to rely on an advisory or opinion letter as to its qualifications 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 adversely affect the qualified status of any such plan, (C) neither Parent nor any of its Subsidiaries has engaged in a transaction that has resulted inpending, or would reasonably be expected to result in, the assessment of a civil penalty upon Parent or any of its Subsidiaries pursuant to Section 409 or 502(i) of ERISA or a tax imposed pursuant to Section 4975 or 4976 of the Code that has not been satisfied in full, (D) there does not now exist, nor, to the knowledge of Parent, do any circumstances exist that would reasonably be expected to result in, any Controlled Group Liability that would be a liability of Parent, any of its Subsidiaries or any of their respective ERISA Affiliates, (E) all payments required to be made by or with respect to each Parent Benefit Plan (including all contributions, insurance premiums or intercompany charges) with respect to all prior periods have been timely made or paid by Parent or its Subsidiaries in accordance with the provisions of each of the Parent 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 Parent in accordance with GAAP and (F) there are no pending or, to the knowledge of ParentCompany’s Knowledge, threatened claims by or on behalf of any Parent Benefit Plan, by any employee or beneficiary covered under any Parent Benefit Plan or otherwise involving any Parent Benefit Plan or any trusts related thereto (other than routine claims for benefitsbenefits arising in the ordinary course of administration).
; (iv) None of Parentno prohibited transaction, any of its Subsidiaries or any of their respective ERISA Affiliates 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 as defined in connection with: (A) a plan subject to Title IV or Section 302 406 of ERISA or Section 412 or Section 430 4975 of the Code, has occurred, excluding transactions effected pursuant to a statutory or administration exemption; and (Bv) all contributions and premiums due through the Closing Date have been made in all material respects as required under ERISA or have been fully accrued in all material respects on the Company Financials.
(e) No Company Benefit Plan is a (i) “multiple employer welfare arrangement” (as defined in Section 3(40) of ERISA), a “multiple employer benefit plan” (as defined in Section 413(c414(j) of the Code), (ii) or a “multiemployer plan” (as defined in Section 3(37) of ERISA)) or (iii) a “multiple employer plan” (as described in Section 413(c) of the Code) or is otherwise subject to Title IV of ERISA or Section 412 of the Code. No Target Company nor any ERISA Affiliate has incurred any Liability or otherwise could have any Liability, contingent or otherwise, under Title IV of ERISA and no condition presently exists that is expected to cause such Liability to be incurred. No Company Benefit Plan will become a multiple employer plan with respect to any Target Company immediately after the Closing Date. No Target Company currently maintains or has ever maintained, or is required currently or has ever been required to contribute to or otherwise participate in, a multiple employer welfare arrangement or voluntary employees’ beneficiary association as defined in Section 501(c)(9) of the Code.
(Cf) There is no arrangement under any Company Benefit Plan with respect to any employee that would result in the payment of any amount that by operation of Sections 280G or 162(m) of the Code would not be deductible by the Target Companies and no arrangement exists pursuant to which a Target Company will be required to “gross up” or otherwise compensate any person because of the imposition of any excise tax on a payment to such person.
(g) With respect to each Company Benefit Plan which is a “welfare plan” (as described in Section 3(1) of ERISA): (i) no such plan or arrangement which provides for post-employment or post-retirement medical or welfare death benefits for retired with respect to current or former employees of a Target Company beyond their termination of employment (other than coverage mandated by Law, which is paid solely by such employees); and (ii) there are no reserves, assets, surplus or beneficiaries prepaid premiums under any such plan. Each Target Company has complied with the provisions of Section 601 et seq. of ERISA and Section 4980B of the Code.
(h) The consummation of the transactions contemplated by this Agreement and the Ancillary Documents will not: (i) entitle any individual to severance pay, unemployment compensation or dependents thereofother benefits or compensation; (ii) accelerate the time of payment or vesting, except pursuant or increase the amount of any compensation due, or in respect of, any individual; or (iii) result in or satisfy a condition to the payment of compensation that would, in combination with any other payment, result in an “excess parachute payment” within the meaning of Section 280G of the Code. No Target Company has incurred any Liability for any Tax imposed under Chapter 43 of the Code or civil liability under Section 502(i) or (l) of ERISA.
(i) Except to the extent required by Section 4980B of the Code or similar state Law, no Target Company provides health or 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 applicable Lawtermination of employment or service.
(vj) With respect All Company Benefit Plans can be terminated at any time as of or after the Closing Date without resulting in any Liability to each Parent the Purchaser or the Target Companies or their respective Affiliates for any additional contributions, penalties, premiums, fees, fines, excise taxes or any other charges or liabilities.
(k) Each Company Benefit Plan that is subject to Title IV or Section 302 of ERISA or Section 412 or 430 409A of the Code (each, a “Parent Title IV Section 409A Plan”): (A) there does not exist any failure to meet as of the “minimum funding standard” Closing Date is indicated as such on Schedule 4.19(k). No Company Options or other equity-based awards have been issued or granted by the Company that are, or are subject to, a Section 409A Plan. Each Section 409A Plan has been administered in compliance, and is in documentary compliance, with the applicable provisions of Section 412 of the Code or 302 of ERISA (whether or not waived), (B) no such plan is in “at-risk” status for purposes of Section 430 409A of the Code, (C) the present value of accrued benefits under such Parent Title IV Plan, based upon the actuarial assumptions used for funding purposes in the most recent actuarial report prepared by such Parent Title IV Plan’s actuary regulations thereunder and other official guidance issued thereunder. No Target Company has any obligation to any employee or other service provider with respect to such Parent Title IV Plan, did not, as of its latest valuation date, exceed the then current fair market value any Section 409A Plan that may be subject to any Tax under Section 409A of the assets Code. No payment to be made under any Section 409A Plan is, or to the Knowledge of such Parent Title IV Plan allocable the Company will be, subject to such accrued benefits, (D) no reportable event within the meaning penalties of Section 4043(c) of ERISA has occurred, (E) all premiums to the PBGC have been timely paid in full, (F) no liability (other than for premiums to the PBGC) under Title IV of ERISA has been or is expected to be incurred by Parent or any of its ERISA Affiliates, and (G) the PBGC has not instituted proceedings to terminate any such Parent Title IV Plan and, to the knowledge of Parent, no circumstances exist which could serve as a basis for the institution of such proceedings.
(vi) Except as set forth on Section 3.2(j)(vi409A(a)(1) of the Parent Disclosure LetterCode. There is no Contract or plan to which any Target Company is a party or by which it is bound to compensate any employee, neither the execution and delivery of this Agreement nor the consummation consultant or director for any Taxes or interest imposed pursuant to Section 409A of the transactions contemplated hereby (either alone or in conjunction with any other event) will (A) increase any benefits otherwise payable or trigger any other obligation under any Parent Benefit Plan, (B) result in any acceleration of the time of payment, funding or vesting of any such benefits or (C) result in any limitation on the right of Parent or any of its Subsidiaries to amend, merge, terminate or receive a reversion of assets from any Parent Benefit Plan or related trustCode.
(vii) No Parent Benefit Plan provides for the gross-up or reimbursement of Taxes under Section 409A or 4999 of the Code or otherwise.
Appears in 1 contract
Samples: Business Combination Agreement (Apeiron Capital Investment Corp.)
Benefit Plans. (ia) Section 3.2(j)(i3.14(a) of the Parent Company Disclosure Letter contains Schedule sets forth a true, complete and correct list of each all U.S. Benefit Plan sponsored, maintained or contributed by Parent or any of its Subsidiaries, or which Parent or any of its Subsidiaries is obligated to sponsor, maintain or contribute to, or Plans.
(b) As applicable with respect to which Parent or its Subsidiaries otherwise each U.S. Benefit Plan, the Company has any liability (the “Parent Benefit Plans”). No Parent Benefit Plan is established or maintained outside of the United States or for the benefit of current or former employees of Parent or any of its Subsidiaries residing outside of the United States.
(ii) Parent has delivered or made available to the Company prior to the date Parent, copies of this Agreement a true, correct and complete copy of (i) each Parent current U.S. Benefit Plan currently in effect anddocument, with respect including any amendments, (ii) all trust documents and custodial agreements relating thereto, if applicable(iii) the current summary plan description and each summary of material modifications thereto, (A) all amendments, the current trust (or other funding vehicle) agreements, and the most recent summary plan descriptions, (Biv) the most recent recently filed annual report (Form 5500 series including, where applicable, and all schedules thereto) and actuarial and accountants’ reports) filed with the Department of Labor and the most recent actuarial report or other financial statement relating to such Parent Benefit Plan, (Cv) the most recent IRS determination letter from the IRS (if applicable) for such Parent Benefit Plan and (D) any notice to or from the IRS or any office or representative of the Department of Labor relating to any unresolved compliance issues in respect of such Parent Benefit Planletter.
(iiic) Except as otherwise disclosed on Section 3.14I of the Company Disclosure Schedule:
(i) each U.S. Benefit Plan has been maintained, operated and administered in compliance in all material respects with its terms and with the applicable provisions of ERISA and the Code except where failure to so comply would not reasonably be expected to have, individually or result in the aggregate, a Material Adverse Effect on Parent, the Company and its Subsidiaries;
(Aii) each Parent no U.S. Benefit Plan has been maintained and administered in compliance with its terms and with applicable Law, including, but not limited to, is subject to Title IV of ERISA and the Code and in each case the regulations thereunder, (B) each Parent no U.S. Benefit Plan is a “multiemployer plan” as defined in Section 3(37) of ERISA;
(iii) the U.S. Benefit Plans which are “employee pension benefit plans” within the meaning of Section 3(2) of ERISA and which are intended to be qualified under meet the qualification requirements of Section 401(a) of the Code has (each a “Pension Plan”) have received a favorable determination or opinion letter as to its qualifications letters from the IRS or is entitled to rely on an advisory or opinion the effect that such Pension Plans are qualified and the related trusts are exempt from federal income taxes and no determination letter as to its qualifications issued with respect to an IRS approved master and prototype any Pension Plan has been revoked;
(iv) no U.S. Benefit Plan provides death or volume submitter planmedical benefits, and there are no existing circumstances beyond termination of service or any events that have occurred that would reasonably be expected to adversely affect the qualified status of any such plan, retirement other than (CA) neither Parent nor any of its Subsidiaries has engaged in a transaction that has resulted incoverage mandated by law, or would reasonably be expected to result in, the assessment of (B) death or retirement benefits under a civil penalty upon Parent or any of its Subsidiaries pursuant to Section 409 or 502(i) of ERISA or a tax imposed pursuant to Section 4975 or 4976 of the Code that has not been satisfied in full, (D) there does not now exist, nor, to the knowledge of Parent, do any circumstances exist that would reasonably be expected to result in, any Controlled Group Liability that would be a liability of Parent, any of its Subsidiaries or any of their respective ERISA Affiliates, (E) all payments required to be made by or with respect to each Parent U.S. Benefit Plan qualified under Code Section 401(a); and
(including all contributions, insurance premiums or intercompany charges) with respect to all prior periods have been timely made or paid by Parent or its Subsidiaries in accordance with the provisions of each of the Parent 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 Parent in accordance with GAAP and (Fv) there are no pending or, to the knowledge Knowledge of Parentthe Company, threatened claims, assessments or legal proceedings with respect to any U.S. Benefit Plans, other than ordinary and usual claims for benefits by participants and beneficiaries.
(d) Section 3.14(d) of the Company Disclosure Schedule sets forth a list of all Foreign Benefit Plans.
(e) Except as otherwise disclosed on Section 3.14(e) of the Company Disclosure Schedule:
(i) each Foreign Benefit Plan has been maintained, operated and administered in compliance in all material respects with its terms and the laws of each applicable jurisdiction, except where the failure to so comply would not result in a Material Adverse Effect on the Company or on behalf its Subsidiaries; and
(ii) there are no pending or, to the Knowledge of the Company, threatened claims, assessments or legal proceedings with respect to any Parent Foreign Benefit Plan, by any employee or beneficiary covered under any Parent Benefit Plan or otherwise involving any Parent Benefit Plan or any trusts related thereto (other than routine ordinary and usual claims for benefits)benefits by participants and beneficiaries.
(iv) None of Parent, any of its Subsidiaries or any of their respective ERISA Affiliates 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 plan subject to Title IV or Section 302 of ERISA or Section 412 or Section 430 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 plan” (as defined in Section 3(37) of ERISA), or (C) any plan or arrangement which provides for post-employment or post-retirement medical or welfare benefits for retired or former employees or beneficiaries or dependents thereof, except pursuant to Section 4980B of the Code or other applicable Law.
(v) With respect to each Parent Benefit Plan that is subject to Title IV or Section 302 of ERISA or Section 412 or 430 of the Code (each, a “Parent Title IV Plan”): (A) there does not exist any failure to meet the “minimum funding standard” of Section 412 of the Code or 302 of ERISA (whether or not waived), (B) no such plan is in “at-risk” status for purposes of Section 430 of the Code, (C) the present value of accrued benefits under such Parent Title IV Plan, based upon the actuarial assumptions used for funding purposes in the most recent actuarial report prepared by such Parent Title IV Plan’s actuary with respect to such Parent Title IV Plan, did not, as of its latest valuation date, exceed the then current fair market value of the assets of such Parent Title IV Plan allocable to such accrued benefits, (D) no reportable event within the meaning of Section 4043(c) of ERISA has occurred, (E) all premiums to the PBGC have been timely paid in full, (F) no liability (other than for premiums to the PBGC) under Title IV of ERISA has been or is expected to be incurred by Parent or any of its ERISA Affiliates, and (G) the PBGC has not instituted proceedings to terminate any such Parent Title IV Plan and, to the knowledge of Parent, no circumstances exist which could serve as a basis for the institution of such proceedings.
(vi) Except as set forth on Section 3.2(j)(vi) of the Parent Disclosure Letter, 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) increase any benefits otherwise payable or trigger any other obligation under any Parent Benefit Plan, (B) result in any acceleration of the time of payment, funding or vesting of any such benefits or (C) result in any limitation on the right of Parent or any of its Subsidiaries to amend, merge, terminate or receive a reversion of assets from any Parent Benefit Plan or related trust.
(vii) No Parent Benefit Plan provides for the gross-up or reimbursement of Taxes under Section 409A or 4999 of the Code or otherwise.
Appears in 1 contract
Samples: Agreement and Plan of Merger (SFBC International Inc)
Benefit Plans. (ia) Section 3.2(j)(i5.17(a) of the Parent Public Disclosure Letter contains ------------- Schedule sets forth a true, true and complete and correct list of each Benefit Plan "employee benefit plan" (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 each other employee benefit plan, fund, program, agreement or arrangement, in each case, that is sponsored, maintained or contributed to or required to be contributed to by Parent Public or by any trade or business, whether or not incorporated, that together with Public would be deemed a "single employer" within the meaning of its Subsidiaries, or which Parent or any of its Subsidiaries is obligated to sponsor, maintain or contribute to, or with respect to which Parent or its Subsidiaries otherwise has any liability (the “Parent Benefit Plans”). No Parent Benefit Plan is established or maintained outside Section 414 of the United States or Code (a "Public ERISA Affiliate"), for the benefit of any current or former employees employee of Parent Public or any of its Subsidiaries residing outside of Public ERISA Affiliate (the United States"Public Benefit Plans").
(iib) Parent Public has delivered or heretofore made available to the Company prior to the date of this Agreement a true, correct true and complete copy copies of each Parent of the Public Benefit Plan currently in effect andPlans and all related documents, with respect thereto, if applicable, including but not limited to (Ai) all amendments, the current trust (or other funding vehicle) agreements, and the most recent summary plan descriptions, (B) 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 for such Parent Public Benefit PlanPlan (if applicable), and (Cii) the most recent determination letter from the IRS Internal Revenue Service (if applicable) for such Parent Benefit Plan and (D) any notice to or from the IRS or any office or representative of the Department of Labor relating to any unresolved compliance issues in respect of such Parent Public Benefit Plan.
(iiic) Except as would not reasonably be expected to have, individually or set forth in Section 5.17(c) of the aggregate, a Material Adverse Effect on ParentPublic Disclosure Schedule, (Ai) each Parent of the Public Benefit Plan Plans has been maintained operated and administered in material compliance with its terms and with applicable Lawlaw, including, including but not limited toto the Exchange Act, the Securities Act, ERISA and the Code and in each case the regulations thereunderCode, (Bii) to the knowledge of Public, each Parent of the Public Benefit Plan Plans intended to be qualified under "qualified" within the meaning of Section 401(a) of the Code either (1) has received a favorable determination or opinion letter as to its qualifications from the IRS IRS, or (2) is entitled or will be the subject of an application for a favorable determination letter, and Public is not aware of any circumstances reasonably likely to rely on an advisory result in the revocation or opinion letter as to its qualifications issued denial of any such favorable determination letter, (iii) no Public Benefit Plan provides benefits, including without limitation death or medical benefits (whether or not insured), with respect to an IRS approved master current or former employees of Public or any Public 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 plan," as that term is defined in Section 3(2) of ERISA, (y) deferred compensation benefits accrued as liabilities on the books of Public or the Public ERISA Affiliates or (z) benefits which are fully insured or the full cost of which is borne by the current or former employee (or his beneficiary), (iv) no Public Benefit Plan is subject to Title IV of ERISA and prototype no liability under Title IV of ERISA has been incurred by Public or volume submitter planany Public ERISA Affiliate that has not been satisfied in full, and there are neither Public nor a Public ERISA Affiliate has any contingent liability under Title IV of ERISA, (v) no existing circumstances Public Benefit Plan is a "multiemployer pension plan," as such term is defined in Section 3(37) of ERISA, (vi) all contributions or other amounts payable by Public or any events that Public ERISA Affiliates as of the Effective Time with respect to each Public Benefit Plan in respect of current or prior plan years have occurred that would reasonably be expected to adversely affect the qualified status of any such planbeen paid or accrued in accordance with GAAP, (Cvii) neither Parent Public nor any of its Subsidiaries Public ERISA Affiliate has engaged in a transaction that or has resulted in, taken or would failed to take any action in connection with which Public or any Public ERISA Affiliate reasonably could be expected subject to result in, the assessment of either a civil penalty upon Parent or any of its Subsidiaries assessed pursuant to Section 409 or 502(i) of ERISA or a tax imposed pursuant to Section 4975 4975, 4976 or 4976 4980B of the Code that has not been satisfied in fullCode, (Dviii) there does not now existare no pending, nor, to the knowledge of Parent, do any circumstances exist that would reasonably be expected to result in, any Controlled Group Liability that would be a liability of Parent, any of its Subsidiaries or any of their respective ERISA Affiliates, (E) all payments required to be made by or with respect to each Parent Benefit Plan (including all contributions, insurance premiums or intercompany charges) with respect to all prior periods have been timely made or paid by Parent or its Subsidiaries in accordance with the provisions of each of the Parent 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 Parent in accordance with GAAP and (F) there are no pending or, to the best knowledge of ParentPublic, threatened or anticipated claims by or on behalf of any Parent Benefit Plan, by any employee or beneficiary covered under any Parent Benefit Plan or otherwise involving any Parent Benefit Plan or any trusts related thereto proceedings (other than routine claims for benefits).
(iv) None by, on behalf of Parent, or against any of its Subsidiaries the Public Benefit Plans or any of their respective ERISA Affiliates 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 plan subject to Title IV or Section 302 of ERISA or Section 412 or Section 430 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 plan” (as defined in Section 3(37) of ERISA), or (C) any plan or arrangement which provides for post-employment or post-retirement medical or welfare benefits for retired or former employees or beneficiaries or dependents thereof, except pursuant to Section 4980B of the Code or other applicable Law.
(v) With respect to each Parent Benefit Plan that is subject to Title IV or Section 302 of ERISA or Section 412 or 430 of the Code (each, a “Parent Title IV Plan”): (A) there does not exist any failure to meet the “minimum funding standard” of Section 412 of the Code or 302 of ERISA (whether or not waived), (B) no such plan is in “at-risk” status for purposes of Section 430 of the Code, (C) the present value of accrued benefits under such Parent Title IV Plan, based upon the actuarial assumptions used for funding purposes in the most recent actuarial report prepared by such Parent Title IV Plan’s actuary with respect to such Parent Title IV Plan, did not, as of its latest valuation date, exceed the then current fair market value of the assets of such Parent Title IV Plan allocable to such accrued benefits, (D) no reportable event within the meaning of Section 4043(c) of ERISA has occurred, (E) all premiums to the PBGC have been timely paid in full, (F) no liability (other than for premiums to the PBGC) under Title IV of ERISA has been or is expected to be incurred by Parent or any of its ERISA Affiliatestrusts related thereto, and (Gix) the PBGC has not instituted proceedings to terminate any such Parent Title IV Plan and, to the knowledge of Parent, no circumstances exist which could serve as a basis for the institution of such proceedings.
(vi) Except as set forth on Section 3.2(j)(vi) of the Parent Disclosure Letter, neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby (by this Agreement will not, either alone or in conjunction combination with any other event, (y) will (A) increase entitle any benefits otherwise payable current or trigger former employee, officer, director or consultant of Public or any Public ERISA Affiliate to severance pay, termination pay or any other obligation under any Parent Benefit Planpayment or benefit, except as expressly provided in this Agreement or (Bz) result in any acceleration of accelerate the time of payment, funding payment or vesting or increase the amount or value of compensation or benefits due any such benefits employee, officer, director or (C) result in any limitation on the right of Parent or any of its Subsidiaries to amend, merge, terminate or receive a reversion of assets from any Parent Benefit Plan or related trustconsultant.
(vii) No Parent Benefit Plan provides for the gross-up or reimbursement of Taxes under Section 409A or 4999 of the Code or otherwise.
Appears in 1 contract
Samples: Merger Agreement (Ipcs Inc)
Benefit Plans. (ia) Section 3.2(j)(i) Except for the Existing Plans, no Group Company maintains any Benefit Plan. The Sellers have delivered to Buyer true and correct copies of each of the Parent Disclosure Letter contains a trueExisting Plans for which written documentation exists, complete together with copies of any summary plan or similar description thereof and correct list the most recent actuarial reports, audited financial statements and Form 5500 and schedules, if any, with respect thereto. Each of each the Existing Plans is in compliance in all respects with applicable Law, including without limitation, the Code and ERISA, and any Benefit Plan sponsored, maintained or contributed terminated by Parent or any of its Subsidiaries, or which Parent or any of its Subsidiaries is obligated to sponsor, maintain or contribute to, or either Group Company during the five-year period ending with respect to which Parent or its Subsidiaries otherwise has any liability (the “Parent Benefit Plans”). No Parent Benefit Plan is established or maintained outside of the United States or for the benefit of current or former employees of Parent or any of its Subsidiaries residing outside of the United States.
(ii) Parent has delivered or made available to the Company prior to the date of this Agreement a true, correct and complete copy of each Parent Benefit Plan currently in effect and, with respect thereto, if applicable, (A) all amendments, the current trust (or other funding vehicle) agreements, and the most recent summary plan descriptions, (B) 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 Parent Benefit Plan, (C) the most recent determination letter from the IRS (if applicable) for such Parent Benefit Plan and (D) any notice to or from the IRS or any office or representative of the Department of Labor relating to any unresolved compliance issues in respect of such Parent Benefit Plan.
(iii) Except as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on Parent, (A) each Parent Benefit Plan has been maintained and administered was in compliance with its terms such Law and was terminated in compliance with applicable such Law, including, but not limited to, ERISA and . All of the Code and in each case the regulations thereunder, (B) each Parent Benefit Plan Existing Plans which are intended to be qualified under meet the requirements of Section 401(a) of the Code have been determined by the Internal Revenue Service to be “qualified” within the meaning of Section 401(a) of the Code or timely application has received a favorable determination or opinion letter as to its qualifications from the IRS or is entitled to rely on an advisory or opinion letter as to its qualifications issued with respect to an IRS approved master and prototype or volume submitter planbeen made therefor, and there are no existing circumstances or any events that have occurred that facts Known to the Sellers which would reasonably be expected to adversely affect the qualified status of such Existing Plans. No Group Company is in default in any such plan, (C) neither Parent nor respect in performing its obligations under any of its Subsidiaries has engaged in a transaction that has resulted inthe Existing Plans, or would reasonably be expected to result in, the assessment of a civil penalty upon Parent or any of its Subsidiaries pursuant to Section 409 or 502(i) of ERISA or a tax imposed pursuant to Section 4975 or 4976 of the Code that has not been satisfied in full, (D) there does not now exist, nor, to the knowledge of Parent, do any circumstances exist that would reasonably be expected to result in, any Controlled Group Liability that would be a liability of Parent, any of its Subsidiaries or any of their respective ERISA Affiliates, (E) all payments required to be made by or with respect to each Parent Benefit Plan (including and all contributions, insurance premiums payments, liabilities or intercompany charges) with respect obligations under any Existing Plans that are required to all prior periods have been timely made or paid by Parent or its Subsidiaries in accordance with the provisions of each of the Parent Benefit Plans and applicable Law or, to the extent not required to be made or paid on or before the date hereof, hereof have been reflected paid or that are required to have been accrued on the date hereof on the books and records of Parent in accordance account of the applicable Group Company by GAAP applied consistently with GAAP and the past practice of the applicable Group Company for year-end financial statements have been so accrued.
(Fb) there are no pending orWith respect to each Existing Plan, all reports required under ERISA or any other applicable Law or regulation to the knowledge of Parent, threatened claims be filed by or on behalf of any Parent Benefit Plan, by any employee or beneficiary covered under any Parent Benefit such Plan or otherwise involving any Parent Benefit Plan or any trusts related thereto (other than routine claims for benefits)with the relevant governmental authority the failure of which to file could reasonably result in liability to either Group Company have been duly filed and all such reports are true and correct as of the date given.
(ivc) None of Parent, No Group Company nor any of its Subsidiaries ERISA Affiliates nor any Existing Plan has engaged in a “prohibited transaction” (as such term is defined in Section 4975 of the Code and Sections 406 and 408 of ERISA), which would subject either Group Company (after giving effect to any exemption) or any of their respective ERISA Affiliates maintains, contributes to, Existing Plan to the tax 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 plan subject to Title IV or penalty on prohibited transactions imposed by Section 302 of ERISA or Section 412 or Section 430 4975 of the Code, Section 502 of ERISA or any other liability.
(Bd) a No Existing Plan has been terminated, no “multiple employer welfare arrangementaccumulated funding deficiency” (as defined in Section 3(40412(a) of the Code) has been incurred (without regard to any waiver granted under Section 412 of the Code), and no funding waiver from the Internal Revenue Service has been received or requested with respect to any Existing Plan and no Group Company or any of its ERISA Affiliates failed to make any contributions or to pay any amounts due and owing as required by Section 412 of the Code, Section 302 of ERISA or the terms of any Existing Plan prior to the due date of such contribution under Section 412 of the Code or Section 302 of ERISA, nor has there been any reportable event or any event requiring disclosure under Section 4041(c)(3)(C), 4063(a) or 4068(f) of ERISA with respect to any Existing Plan.
(e) The value of the assets of each Existing Plan which is a “defined benefit” plan (as defined in Section 3(35) of ERISA), a ) equaled or exceeded the present value of the “multiple employer planbenefit liabilities” (as defined in Section 413(c4001(a)(16) of ERISA) of each such plan as of the Codeend of the preceding plan year, using the plan’s actuarial assumptions as in effect for such plan year.
(f) There are no claims (other than claims for benefits in the normal course), actions or lawsuits asserted or instituted against, and there are no pending or to the Knowledge of the Sellers threatened litigation or claims against, the assets of any Existing Plan or against any fiduciary of such Existing Plan with respect to the operation of such Existing Plan, which, if adversely determined, could have an adverse effect on the business, operations, properties, assets or condition (financial or otherwise) of either Group Company.
(g) Except as specified otherwise in Schedule 4.25 attached to this Agreement, each of the Existing Plans can be terminated by the applicable Group Company within a “period of 30 days following the Closing Date, without payment of any additional compensation or amount or the additional vesting or acceleration of any benefits under any of such plans, and none of the transactions contemplated by this Agreement shall result in the acceleration of any payments under any Existing Plan.
(h) No Group Company or any of its ERISA Affiliates has incurred (a) any liability to the PBGC (other than routine claims and premium payments), (b) any withdrawal liability (and no event has occurred which, with the giving of notice under Section 4219 of ERISA, would result in such liability) under Section 4201 of ERISA as a result of a complete or partial withdrawal (within the meaning of Section 4203 or 4205 of ERISA) from a multiemployer plan” (as defined plan described in Section 3(37) of ERISA)ERISA or (c) any liability under ERISA Section 4062 to the PBGC, or (C) any plan or arrangement which provides for post-employment or post-retirement medical or welfare benefits for retired or former employees or beneficiaries or dependents thereof, except pursuant to a trustee appointed under Section 4980B 4042 of the Code or other applicable LawERISA.
(vi) With respect to each Parent Benefit Plan that is subject to Title IV No Group Company or Section 302 of ERISA or Section 412 or 430 of the Code (each, a “Parent Title IV Plan”): (A) there does not exist any failure to meet the “minimum funding standard” of Section 412 of the Code or 302 of ERISA (whether or not waived), (B) no such plan is in “at-risk” status for purposes of Section 430 of the Code, (C) the present value of accrued benefits under such Parent Title IV Plan, based upon the actuarial assumptions used for funding purposes in the most recent actuarial report prepared by such Parent Title IV Plan’s actuary with respect to such Parent Title IV Plan, did not, as of its latest valuation date, exceed the then current fair market value ERISA Affiliates or any organization to which either Group Company or any of the assets its ERISA Affiliates is a successor or parent corporation (as described in Section 4069(a) of such Parent Title IV Plan allocable to such accrued benefits, ERISA) has engaged in a transaction described in Section 4069 of ERISA.
(Dj) no reportable event No Group Company maintains or has established any “welfare benefit plan” (within the meaning of Section 4043(c3(1) of ERISA has occurredERISA), (E) all premiums to the PBGC have been timely paid in full, (F) no liability (other than those listed on Schedule 1.1 to this Agreement, which provides for premiums continuing benefits or coverage for any participant or any beneficiary of a participant after such participant’s termination of employment except as may be required by the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”), and the regulations thereunder.
(k) Each Group Company and each of its ERISA Affiliates maintaining a “welfare benefit plan” (within the meaning Section 3(1) of ERISA) has complied with all applicable notice and continuation coverage requirements of COBRA and the regulations thereunder such that there would not result any tax, penalty or liability to the PBGCeither Group Company.
(l) under Title IV of ERISA has been or is expected to be incurred by Parent No Group Company or any of its ERISA AffiliatesAffiliates has any liability as a successor of any other organization to any Benefit Plan (or beneficiary, and (Gsponsor, trustee or fiduciary of such plan) the PBGC has not instituted proceedings pursuant to terminate any such Parent successor liability rules of Title IV Plan and, to the knowledge of Parent, no circumstances exist which could serve as a basis for the institution of such proceedingsERISA or federal common Law.
(vim) Except as set forth on Section 3.2(j)(vi) of the Parent Disclosure Letterin Schedule 4.25 hereto, neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby (either alone no Group Company has any Existing Plan or in conjunction other agreements, arrangements or commitments that contain any severance or termination pay liabilities or obligations, whether legally binding or not, with any other event) will (A) increase employee or former employee, and no Group Company is presently paying any benefits otherwise payable severance or trigger termination payments to any other obligation under any Parent Benefit Plan, (B) result in any acceleration of the time of payment, funding or vesting of any such benefits or (C) result in any limitation on the right of Parent or any of its Subsidiaries to amend, merge, terminate or receive a reversion of assets from any Parent Benefit Plan or related trustformer employee.
(viin) No Parent Person has asserted any claim under which either Group Company has any liability under any Benefit Plan provides maintained by either Group Company or to which either Group Company is a party, or under any worker’s compensation or similar Law, which is not fully covered by insurance maintained with unaffiliated, financially sound, reputable insurers or, if not insured, for which an adequate reserve is not reflected on the gross-up or reimbursement of Taxes under Section 409A or 4999 of the Code or otherwiseClosing Balance Sheet.
Appears in 1 contract
Samples: Stock and Membership Interest Purchase Agreement (E-Waste Systems, Inc.)
Benefit Plans. (a) All employee benefit plans within the meaning of Section 3(3) of ERISA (i) Section 3.2(j)(i) of the Parent Disclosure Letter contains a true, complete and correct list of each Benefit Plan sponsored, maintained or contributed by Parent or any of its Subsidiaries, or which Parent or any of its Subsidiaries is obligated to sponsor, maintain or contribute to, or with respect to which Parent or its Subsidiaries otherwise has any liability (the “Parent Benefit Plans”). No Parent Benefit Plan is established sponsored by or maintained outside of by the United States Company or for the benefit of Bank, (ii) under which any current or former employees of Parent employee, director, officer, independent contractor or any of its Subsidiaries residing outside consultant of the United StatesCompany or the Bank has any present or future right to benefits or (iii) under which the Company or the Bank has any present or future liability are referred to in this Agreement as the “Benefit Plans.”
(iib) Parent With respect to each Benefit Plan, the Bank has delivered furnished or made available to the Company prior to the date of this Agreement Buyer a truecurrent, correct accurate and complete copy of each Parent Benefit Plan currently in effect thereof and, with respect theretoto the extent applicable: (i) any related trust agreement or other funding instrument, (ii) the most recent determination or opinion letter of the Internal Revenue Service, if applicable, (Aiii) all amendments, the current trust (or other funding vehicle) agreements, and the most recent summary plan descriptionsdescription, and (iv) for the most recent two years (A) the Form 5500 and attached schedules, (B) the most recent annual report (Form 5500 series including, where applicable, all schedules audited financial statements and actuarial and accountants’ reports) filed with the Department of Labor and the most recent actuarial report or other financial statement relating to such Parent Benefit Plan, (C) actuarial valuation reports. The Company also has furnished and made available to Buyer copies of the most recent determination letter from the IRS current 280G calculation prepared (if applicablewhether or not final) for such Parent Benefit Plan and (D) with respect to any notice to employee, director or from the IRS or any office or representative independent contractor of the Department Company or the Bank who is a “disqualified individual” under Section 280G(c) of Labor relating to any unresolved compliance issues the Code in respect of connection with the Merger, together with the underlying documentation on which such Parent Benefit Plancalculation is based.
(iiic) Except as would not reasonably be expected With respect to have, individually or in the aggregate, a Material Adverse Effect on Parent, each Benefit Plan:
(Ai) each Parent Benefit Plan has been maintained established and administered in compliance accordance with its terms and in compliance in all material respects with the applicable provisions of ERISA and the Code, and other applicable Law, including, but not limited to, ERISA and all contributions required to be made under the Code and in each case the regulations thereunder, terms of any Benefit Plan have been timely made;
(Bii) each Parent Benefit Plan intended to be qualified under Section 401(a) of the Code (A) has received a favorable determination or opinion letter as to its qualifications from the IRS or is entitled to rely on an determination, advisory or opinion letter letter, as to its qualifications issued with respect to an IRS approved master and prototype applicable, from the Internal Revenue Service that it is so qualified or (B) is a volume submitter planor prototype plan whose sponsor obtained a favorable opinion letter and on which letter the Bank is permitted to rely, and there are no existing circumstances and, to the Knowledge of the Company or any events that have the Bank, nothing has occurred since the date of such letter that would reasonably be expected to adversely affect cause the loss of such qualified status of such Benefit Plan;
(iii) there is no Action, including any such planinvestigation, (C) neither Parent nor any audit or other administrative proceeding, by the Department of its Subsidiaries has engaged in a transaction that has resulted in, or would reasonably be expected to result inLabor, the assessment of a civil penalty upon Parent PBGC, the Internal Revenue Service or any of its Subsidiaries pursuant to Section 409 other Governmental Entity or 502(i) of ERISA by any plan participant or a tax imposed pursuant to Section 4975 or 4976 of the Code that has not been satisfied in full, (D) there does not now exist, nor, to the knowledge of Parent, do any circumstances exist that would reasonably be expected to result in, any Controlled Group Liability that would be a liability of Parent, any of its Subsidiaries or any of their respective ERISA Affiliates, (E) all payments required to be made by or with respect to each Parent Benefit Plan (including all contributions, insurance premiums or intercompany charges) with respect to all prior periods have been timely made or paid by Parent or its Subsidiaries in accordance with the provisions of each of the Parent 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 Parent in accordance with GAAP and (F) there are no beneficiary pending or, to the knowledge Knowledge of Parentthe Company or the Bank, threatened claims by relating to Benefit Plans, any fiduciaries of such Benefit Plans with respect to their duties to Benefit Plans or on behalf the assets of any Parent Benefit Plan, by any employee or beneficiary covered of the trusts under any Parent Benefit Plan or otherwise involving any Parent Benefit Plan or any trusts related thereto (Plans, other than routine claims for benefits)., nor, to the Knowledge of the Company or the Bank, are there facts or circumstances that exist that are likely to give rise to any such Actions, and no written or oral communication has been received from the PBGC in respect of any Benefit 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 plan in connection with the Merger; and
(iv) None to the Knowledge of Parentthe Company or the Bank, no “reportable event” (as such term is defined in Section 4043 of ERISA), and no nonexempt “prohibited transaction” (as such term is defined in Section 406 of ERISA and Section 4975 of the Code), in each case whether or not waived, has occurred with respect to any Benefit Plan.
(d) Neither the Bank nor any of its Subsidiaries or any of their respective ERISA Affiliates maintainshas, contributes towithin the preceding six years, or participates in, or has ever during the past six (6) years maintained, contributed to, or participated inbeen required to contribute, or otherwise has had any obligation or liability in connection with: (A) with respect to a plan subject to Title IV or Section 302 of ERISA or Section 412 or Section 430 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 . No Benefit Plan is a “multiemployer plan” (as defined in Section 3(374001(a)(3) of ERISA)) and neither the Bank nor any of its ERISA Affiliates has at any time within the preceding six years sponsored or contributed to, or (C) has or had any plan liability or arrangement which provides for post-employment obligation in respect of, any multiemployer plan. None of the Company nor the Bank have any current or future obligation to provide post-retirement medical health, life or other welfare benefits for retired or former employees or beneficiaries or dependents thereofbenefits, except pursuant to other than as required by Section 4980B of the Code or other any similar applicable Law.
(v) With respect to each Parent Benefit Plan that is subject to Title IV or Section 302 of ERISA or Section 412 or 430 of the Code (each, a “Parent Title IV Plan”): (A) there does not exist any failure to meet the “minimum funding standard” of Section 412 of the Code or 302 of ERISA (whether or not waived), (B) no such plan is in “at-risk” status for purposes of Section 430 of the Code, (C) the present value of accrued benefits under such Parent Title IV Plan, based upon the actuarial assumptions used for funding purposes in the most recent actuarial report prepared by such Parent Title IV Plan’s actuary with respect to such Parent Title IV Plan, did not, as of its latest valuation date, exceed the then current fair market value of the assets of such Parent Title IV Plan allocable to such accrued benefits, (D) no reportable event within the meaning of Section 4043(c) of ERISA has occurred, (E) all premiums to the PBGC have been timely paid in full, (F) no liability (other than for premiums to the PBGC) under Title IV of ERISA has been or is expected to be incurred by Parent or any of its ERISA Affiliates, and (G) the PBGC has not instituted proceedings to terminate any such Parent Title IV Plan and, to the knowledge of Parent, no circumstances exist which could serve as a basis for the institution of such proceedings.
(vie) Except as set forth on provided in Section 3.2(j)(vi3.8(e) of the Parent Seller Disclosure LetterSchedules, neither the Company nor the Bank 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 a result of the Merger, and neither the execution and delivery of this Agreement Agreement, nor the consummation of the transactions contemplated hereby (Merger will, either alone or in conjunction combination with any other another event) will :
(A) increase any benefits otherwise payable or trigger any other obligation under any Parent Benefit Plan, (Bi) result in severance pay or any acceleration increase in severance pay upon any termination of employment after the date of this Agreement,
(ii) accelerate the time of payment, funding payment or 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 such benefits other material obligation to, any of the Benefit Plans,
(iii) limit or restrict the right of the Bank to merge, amend or terminate any of the Benefit Plans, or
(Civ) result in any limitation on the right payment of Parent or any of its Subsidiaries to amend, merge, terminate or receive a reversion of assets from any Parent Benefit Plan or related trust.
(vii) No Parent Benefit Plan provides for the gross-up or reimbursement of Taxes payments that would not be deductible under Section 409A or 4999 280G of the Code or otherwiseCode.
Appears in 1 contract
Benefit Plans. (ia) Section 3.2(j)(i) Each of the Parent Disclosure Letter contains a trueExisting Plans is listed on Schedule 3.24 hereto, complete and except for such Existing Plans, the Company does not maintain any Benefit Plan. The Shareholder has delivered to Purchaser true and correct list copies of each of the Existing Plans for which written documentation exists, together with copies of any summary plan or similar description thereof and the most recent actuarial reports, reviewed financial statements and Form 5500 and schedules, if any, with respect thereto. Each of the Existing Plans is in compliance in all respects with applicable Law, including without limitation, the Code and ERISA, and any Benefit Plan sponsored, maintained or contributed terminated by Parent or any of its Subsidiaries, or which Parent or any of its Subsidiaries is obligated to sponsor, maintain or contribute to, or with respect to which Parent or its Subsidiaries otherwise has any liability (the “Parent Benefit Plans”). No Parent Benefit Plan is established or maintained outside of the United States or for the benefit of current or former employees of Parent or any of its Subsidiaries residing outside of the United States.
(ii) Parent has delivered or made available to the Company prior to during the five-year period ending with the date of this Agreement a true, correct and complete copy of each Parent Benefit Plan currently in effect and, with respect thereto, if applicable, (A) all amendments, the current trust (or other funding vehicle) agreements, and the most recent summary plan descriptions, (B) 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 Parent Benefit Plan, (C) the most recent determination letter from the IRS (if applicable) for such Parent Benefit Plan and (D) any notice to or from the IRS or any office or representative of the Department of Labor relating to any unresolved compliance issues in respect of such Parent Benefit Plan.
(iii) Except as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on Parent, (A) each Parent Benefit Plan has been maintained and administered was in compliance with its terms such Law and was terminated in compliance with applicable such Law, including, but not limited to, ERISA and . All of the Code and in each case the regulations thereunder, (B) each Parent Benefit Plan Existing Plans which are intended to be qualified under meet the requirements of Section 401(a301(a) of the Code have been determined by the Internal Revenue Service to be “qualified” within the meaning of Section 301(a) of the Code or timely application has received a favorable determination or opinion letter as to its qualifications from the IRS or is entitled to rely on an advisory or opinion letter as to its qualifications issued with respect to an IRS approved master and prototype or volume submitter planbeen made therefor, and there are no existing circumstances or any events that have occurred that facts Known to either Shareholder which would reasonably be expected to adversely affect the qualified status of such Existing Plans. The Company is not in default in any such plan, (C) neither Parent nor respect in performing its obligations under any of its Subsidiaries has engaged in a transaction that has resulted inthe Existing Plans, or would reasonably be expected to result in, the assessment of a civil penalty upon Parent or any of its Subsidiaries pursuant to Section 409 or 502(i) of ERISA or a tax imposed pursuant to Section 4975 or 4976 of the Code that has not been satisfied in full, (D) there does not now exist, nor, to the knowledge of Parent, do any circumstances exist that would reasonably be expected to result in, any Controlled Group Liability that would be a liability of Parent, any of its Subsidiaries or any of their respective ERISA Affiliates, (E) all payments required to be made by or with respect to each Parent Benefit Plan (including and all contributions, insurance premiums payments, liabilities or intercompany charges) with respect obligations under any Existing Plans that are required to all prior periods have been timely made or paid by Parent or its Subsidiaries in accordance with the provisions of each of the Parent Benefit Plans and applicable Law or, to the extent not required to be made or paid on or before the date hereof, hereof have been reflected paid or that are required to have been accrued on the date hereof on the books and records of Parent in accordance account of the Company by GAAP applied consistently with GAAP and the past practice of the Company for year-end financial statements have been so accrued.
(Fb) there are no pending orWith respect to each Existing Plan, all reports required under ERISA or any other applicable Law or regulation to the knowledge of Parent, threatened claims be filed by or on behalf of any Parent Benefit Plan, by any employee or beneficiary covered under any Parent Benefit such Plan or otherwise involving any Parent Benefit Plan or any trusts related thereto (other than routine claims for benefits)with the relevant governmental authority the failure of which to file could reasonably result in liability to the Company have been duly filed and all such reports are true and correct as of the date given.
(ivc) None of Parent, Neither the Company nor any of its Subsidiaries ERISA Affiliates nor any Existing Plan has engaged in a “prohibited transaction” (as such term is defined in Section 3975 of the Code and Sections 306 and 308 of ERISA), which would subject the Company (after giving effect to any exemption) or any of their respective ERISA Affiliates maintains, contributes to, Existing Plan to the tax 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 plan subject to Title IV or penalty on prohibited transactions imposed by Section 302 of ERISA or Section 412 or Section 430 3975 of the Code, Section 502 of ERISA or any other liability.
(Bd) a No Existing Plan has been terminated, nor has any “multiple employer welfare arrangementaccumulated funding deficiency” (as defined in Section 3(40312(a) of the Code) been incurred (without regard to any waiver granted under Section 312 of the Code), and no funding waiver from the Internal Revenue Service has been received or requested with respect to any Existing Plan and neither the Company nor any of its ERISA Affiliates failed to make any contributions or to pay any amounts due and owing as required by Section 312 of the Code, Section 302 of ERISA or the terms of any Existing Plan prior to the due date of such contribution under Section 312 of the Code or Section 302 of ERISA, nor has there been any reportable event or any event requiring disclosure under Section 3031(c)(3)(C), 3063(a) or 3068(f) of ERISA with respect to any Existing Plan.
(e) The value of the assets of each Existing Plan which is a “defined benefit” plan (as defined in Section 3(35) of ERISA), a ) equaled or exceeded the present value of the “multiple employer planbenefit liabilities” (as defined in Section 413(c3001(a)(16) of ERISA) of each such plan as of the end of the preceding plan year, using the plan’s actuarial assumptions as in effect for such plan year.
(f) There are no claims (other than claims for benefits in the normal course), actions or lawsuits asserted or instituted against, and there are no pending or to the Knowledge of each Shareholder threatened litigation or claims against, the assets of any Existing Plan or against any fiduciary of such Existing Plan with respect to the operation of such Existing Plan, which, if adversely determined, could have an adverse effect on the business, operations, properties, assets or condition (financial or otherwise) of the CodeCompany.
(g) Except as specified otherwise in Schedule 3.24 attached to this Agreement, each of the Existing Plans can be terminated by the Company within a period of 30 days following the Closing Date without payment of any additional compensation or amount or the additional vesting or acceleration of any benefits under any of such plans, and none of the transactions contemplated by this Agreement shall result in the acceleration of any payments under any Existing Plan.
(h) Neither the Company nor any of its ERISA Affiliates has incurred (a) any liability to the PBGC (other than routine claims and premium payments), (b) any withdrawal liability (and no event has occurred which, with the giving of notice under Section 3219 of ERISA, would result in such liability) under Section 3201 of ERISA as a “result of a complete or partial withdrawal (within the meaning of Section 3203 or 3205 of ERISA) from a multiemployer plan” (as defined plan described in Section 3(37) of ERISA)ERISA or (c) any liability under ERISA Section 3062 to the PBGC, or (C) any plan or arrangement which provides for post-employment or post-retirement medical or welfare benefits for retired or former employees or beneficiaries or dependents thereof, except pursuant to a trustee appointed under Section 4980B 3032 of the Code or other applicable LawERISA.
(vi) With respect Neither the Company nor any of its ERISA Affiliates nor any organization to each Parent Benefit Plan that which the Company or any of its ERISA Affiliates is subject to Title IV a successor or parent corporation (as described in Section 302 3069(a) of ERISA or ERISA) has engaged in a transaction described in Section 412 or 430 3069 of the Code ERISA.
(each, a “Parent Title IV Plan”): (Aj) there The Company does not exist maintain and has not established any failure to meet the “minimum funding standardwelfare benefit plan” of Section 412 of the Code or 302 of ERISA (whether or not waived), (B) no such plan is in “at-risk” status for purposes of Section 430 of the Code, (C) the present value of accrued benefits under such Parent Title IV Plan, based upon the actuarial assumptions used for funding purposes in the most recent actuarial report prepared by such Parent Title IV Plan’s actuary with respect to such Parent Title IV Plan, did not, as of its latest valuation date, exceed the then current fair market value of the assets of such Parent Title IV Plan allocable to such accrued benefits, (D) no reportable event within the meaning of Section 4043(c3(1) of ERISA), other than those listed on Schedule 3.24 to this Agreement, which provides for continuing benefits or coverage for any participant or any beneficiary of a participant after such participant’s termination of employment except as may be required by the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”), and the regulations thereunder.
(k) The Company and each of its ERISA Affiliates maintaining a “welfare benefit plan” (within the meaning Section 3(1) of ERISA) has occurredcomplied with all applicable notice and continuation coverage requirements of COBRA and the regulations thereunder such that there would not result any tax, (E) all premiums penalty or liability to the PBGC have been timely paid in fullCompany.
(l) Neither the Company nor any of its ERISA Affiliates has any liability as a successor of any other organization to any Benefit Plan (or beneficiary, (Fsponsor, trustee or fiduciary of such plan) no pursuant to successor liability (other than for premiums to the PBGC) under rules of Title IV of ERISA has been or is expected to be incurred by Parent or any of its ERISA Affiliates, and federal common law. (G) the PBGC has not instituted proceedings to terminate any such Parent Title IV Plan and, to the knowledge of Parent, no circumstances exist which could serve as a basis for the institution of such proceedings.
(vim) Except as set forth on Section 3.2(j)(vi) of the Parent Disclosure Letter, 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) increase any benefits otherwise payable or trigger any other obligation under any Parent Benefit Plan, (B) result in any acceleration of the time of payment, funding or vesting of any such benefits or (C) result in any limitation on the right of Parent or any of its Subsidiaries to amend, merge, terminate or receive a reversion of assets from any Parent Benefit Plan or related trust.
(vii) No Parent Benefit Plan provides for the gross-up or reimbursement of Taxes under Section 409A or 4999 of the Code or otherwise.in
Appears in 1 contract
Samples: Share Exchange Agreement (ComSovereign Holding Corp.)
Benefit Plans. (ia) Section 3.2(j)(i5.13(a) of the Parent Sellers’ Disclosure Letter contains a true, true and complete and correct list of each Benefit Plan sponsoredunder which (i) any current or former employee, maintained director or contributed by Parent consultant of the Company or any of its SubsidiariesAffiliates (other than any portfolio company of the Fund) (the “Company Employees”) has any present or future right to benefits and which are contributed to, sponsored by or which Parent maintained by the Company or any of its Subsidiaries is obligated to sponsor, maintain or contribute to, or with respect to which Parent or its Subsidiaries otherwise has Affiliates (other than any liability (the “Parent Benefit Plans”). No Parent Benefit Plan is established or maintained outside portfolio company of the United States Fund) or for (ii) the benefit of current or former employees of Parent Company or any of its Subsidiaries residing outside Affiliates (other than any portfolio company of the United StatesFund) has had or has any present or future liability. All such Benefit Plans shall be collectively referred to as the “Company Benefit Plans”.
(iib) Parent With respect to each Company Benefit Plan the Company has delivered or made available to the Company prior to the date of this Agreement Purchaser a truecurrent, correct accurate and complete copy of each Parent Benefit Plan currently in effect (or, to the extent no such copy exists, an accurate description) thereof and, with respect thereto, if to the extent applicable, : (Ai) all amendments, the current any related trust (agreement or other funding vehicle) agreements, and the most recent summary plan descriptions, instrument; (B) 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 Parent Benefit Plan, (Cii) the most recent determination letter from the IRS (letter, if applicable; (iii) any summary plan description; and (iv) for such Parent Benefit Plan the two most recent years (A) the Form 5500 and attached schedules, (B) audited financial statements and (DC) any notice to or from the IRS or any office or representative of the Department of Labor relating to any unresolved compliance issues in respect of such Parent Benefit Planactuarial valuation reports, as applicable.
(iiii) Except as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on Parent, (A) each Parent Each Company Benefit Plan has been maintained established and administered in all material respects in accordance with its terms, and in material compliance with its terms and with the applicable Lawprovisions of ERISA, including, but not limited to, ERISA and the Code and in each case the regulations thereunder, other Applicable Laws; (Bii) each Parent Company Benefit Plan that is intended to be qualified under within the meaning of Section 401(a) of the Code has received a favorable determination or opinion letter as to its qualifications from the IRS or is entitled to rely on an advisory or opinion letter as to its qualifications issued with respect to an IRS approved master and prototype or volume submitter planqualification, and there are no existing circumstances nothing has occurred, whether by action or any events failure to act, that have occurred that would could reasonably be expected to adversely affect cause the qualified status loss of any such plan, qualification; and (Ciii) neither Parent the Company nor any of its Subsidiaries Affiliates (other than any portfolio company of the Fund) has engaged incurred any current or projected liability in a transaction that has resulted inrespect of post-employment or post-retirement health, medical or would reasonably be expected to result inlife insurance benefits for current, the assessment former or retired employees of a civil penalty upon Parent Company or any of its Subsidiaries Affiliates, except as required to avoid an excise tax under Section 4980B of the Code or otherwise except as may be required pursuant to Section 409 or 502(iany other Applicable Law.
(d) No Company Benefit Plan is subject to the funding requirements of Title IV of ERISA or a tax imposed pursuant to Section 4975 or 4976 of the Code that has not been satisfied in full, (D) there does not now exist, nor, to the knowledge of Parent, do any circumstances exist that would reasonably be expected to result in, any Controlled Group Liability that would be a liability of Parent, any of its Subsidiaries or any of their respective ERISA Affiliates, (E) all payments required to be made by or with respect to each Parent Benefit Plan (including all contributions, insurance premiums or intercompany charges) with respect to all prior periods have been timely made or paid by Parent or its Subsidiaries in accordance with the provisions of each of the Parent 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 Parent in accordance with GAAP and (F) there are no pending or, to the knowledge of Parent, threatened claims by or on behalf of any Parent Benefit Plan, by any employee or beneficiary covered under any Parent Benefit Plan or otherwise involving any Parent Benefit Plan or any trusts related thereto (other than routine claims for benefits).
(iv) None of Parent, any of its Subsidiaries or any of their respective ERISA Affiliates 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 plan subject to Title IV or Section 302 of ERISA or Section 412 or Section 430 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 is a “multiemployer plan” (as defined in Section 3(374001(a)(3) of ERISA)) and neither the Company nor any member of its Controlled Group has at any time sponsored or contributed to, or (C) has or had any plan liability or arrangement which provides for post-employment or post-retirement medical or welfare benefits for retired or former employees or beneficiaries or dependents thereofobligation in respect of, except pursuant to Section 4980B of the Code or other applicable Lawany multiemployer plan.
(ve) With respect to each Parent No Company Benefit Plan that is subject to Title IV or Section 302 of ERISA or Section 412 or 430 exists that, as a result of the Code (each, a “Parent Title IV Plan”): (A) there does not exist any failure to meet the “minimum funding standard” of Section 412 of the Code or 302 of ERISA (whether or not waived), (B) no such plan is in “at-risk” status for purposes of Section 430 of the Code, (C) the present value of accrued benefits under such Parent Title IV Plan, based upon the actuarial assumptions used for funding purposes in the most recent actuarial report prepared by such Parent Title IV Plan’s actuary with respect to such Parent Title IV Plan, did not, as of its latest valuation date, exceed the then current fair market value of the assets of such Parent Title IV Plan allocable to such accrued benefits, (D) no reportable event within the meaning of Section 4043(c) of ERISA has occurred, (E) all premiums to the PBGC have been timely paid in full, (F) no liability (other than for premiums to the PBGC) under Title IV of ERISA has been or is expected to be incurred by Parent or any of its ERISA Affiliates, and (G) the PBGC has not instituted proceedings to terminate any such Parent Title IV Plan and, to the knowledge of Parent, no circumstances exist which could serve as a basis for the institution of such proceedings.
(vi) Except as set forth on Section 3.2(j)(vi) of the Parent Disclosure Letter, neither the execution and delivery of this Agreement nor the and consummation of the transactions contemplated hereby (either alone or in conjunction with any other event) hereby, will (Ai) entitle any Company Employee to any increase in severance pay upon any benefits otherwise payable or trigger any other obligation under any Parent Benefit Plantermination of employment after the date of this Agreement, (Bii) accelerate the time of payment or vesting or result in any acceleration payment or funding (through a grantor trust or otherwise) of compensation or benefits under, increase the time of payment, funding amount payable or vesting of any such benefits or (C) result in any limitation on other material obligation pursuant to, any of the Company Benefit Plans, (iii) limit or restrict the right of Parent the Company or any of its Subsidiaries Affiliates to amend, merge, amend or terminate any of the Company Benefit Plans, (iv) cause the Company or receive a reversion any of assets from its Affiliates to record additional compensation expense on its income statement with respect to any Parent outstanding stock option or other equity-based award, or (v) result in payments under any of the Company Benefit Plan or related trustPlans which would not be deductible under Section 280G of the Code.
(viif) No Parent Benefit Plan provides for the gross-up or reimbursement of Taxes under Section 409A or 4999 None of the Code or otherwiseCompany Accounts has to date constituted a “plan assets fund” subject to ERISA.
Appears in 1 contract
Benefit Plans. (i) Section 3.2(j)(iExcept as has not had and would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect, (A) of the Parent Disclosure Letter contains a true, complete and correct list of each Benefit Plan sponsored, maintained or contributed by Parent or any of its Subsidiaries, Subsidiaries or which Parent or any of its Subsidiaries is obligated to sponsor, maintain or contribute to, other than any plan or with respect program maintained by a Governmental Entity to which Parent or its Subsidiaries otherwise has any liability is required to contribute to pursuant to applicable Law (the “Parent Benefit Plans”). No Parent Benefit Plan is established or maintained outside of the United States or for the benefit of current or former employees of Parent or any of its Subsidiaries residing outside of the United States.
(ii) Parent has delivered or made available to the Company prior to the date of this Agreement a true, correct and complete copy of each Parent Benefit Plan currently in effect and, with respect thereto, if applicable, (A) all amendments, the current trust (or other funding vehicle) agreements, and the most recent summary plan descriptions, (B) 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 Parent Benefit Plan, (C) the most recent determination letter from the IRS (if applicable) for such Parent Benefit Plan and (D) any notice to or from the IRS or any office or representative of the Department of Labor relating to any unresolved compliance issues in respect of such Parent Benefit Plan.
(iii) Except as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on Parent, (A) each Parent 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 thereunder, (B) each Parent Benefit Plan intended to be qualified under Section 401(a) of the Code has received a favorable determination or opinion letter as to its qualifications from the IRS or is entitled to rely on an advisory or opinion letter as to its qualifications 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 adversely affect the qualified status of any such plan, (C) neither Parent nor any of its Subsidiaries has engaged in a transaction that has resulted in, or would reasonably be expected to result in, the assessment of a civil penalty upon Parent or any of its Subsidiaries pursuant to Section 409 or Section 502(i) of ERISA or a tax imposed pursuant to Section 4975 or 4976 of the Code that has not been satisfied in full, (D) there does not now exist, nor, to the knowledge of Parent, do any circumstances exist that would reasonably be expected to result in, any Controlled Group Liability that would be a liability of Parent, Parent or any of its Subsidiaries or any of their respective ERISA AffiliatesSubsidiaries, (E) all payments required to be made by or with respect to each Parent Benefit Plan (including all contributions, insurance premiums or intercompany charges) with respect to all prior periods have been timely made or paid by Parent or its Subsidiaries in accordance with the provisions of each of the Parent 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 Parent in accordance with GAAP and (F) there are no pending or, to the knowledge of Parent, threatened claims by or on behalf of any Parent Benefit Plan, by any employee or beneficiary covered under any Parent Benefit Plan or otherwise involving any Parent Benefit Plan or any trusts related thereto (other than routine claims for benefits).
(ivii) None of Parent, any of its Subsidiaries or any of their respective ERISA Affiliates 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 plan subject to Title IV or Section 302 of ERISA or Section 412 or Section 430 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 plan” (as defined in Section 3(37) of ERISA), or (C) any plan or arrangement which provides for post-employment or post-retirement medical or welfare benefits for retired or former employees or beneficiaries or dependents thereof, except pursuant to Section 4980B of the Code or other applicable Law.
(viii) With respect to each Parent Benefit Plan that is subject to Title IV or Section 302 of ERISA or Section 412 or 430 of the Code (each, a “Parent Title IV Plan”): (A) there does not exist any failure to meet the “minimum funding standard” of Section 412 of the Code or 302 of ERISA (whether or not waived), (B) no such plan is in “at-risk” status for purposes of Section 430 of the Code, (C) the present value of accrued benefits under such Parent Title IV Plan, based upon the actuarial assumptions used for funding purposes in the most recent actuarial report prepared by such Parent Title IV Plan’s actuary with respect to such Parent Title IV Plan, did not, as of its latest valuation date, exceed the then current fair market value of the assets of such Parent Title IV Plan allocable to such accrued benefits, (D) no reportable event within the meaning of Section 4043(c) of ERISA has occurred, (E) all premiums to the PBGC have been timely paid in full, (F) no liability (other than for premiums to the PBGC) under Title IV of ERISA has been or is expected to be incurred by Parent or any of its ERISA Affiliates, and (G) the PBGC has not instituted proceedings to terminate any such Parent Title IV Plan and, to the knowledge of Parent, no circumstances exist which could serve as a basis for the institution of such proceedings.
(vi) Except as set forth on Section 3.2(j)(vi) of the Parent Disclosure Letter, neither 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, employee or other service provider of Parent or any of its Subsidiaries under any Parent Benefit Plan or otherwise, (B) increase any benefits otherwise payable or trigger any other obligation under any Parent Benefit Plan, (BC) result in any acceleration of the time of payment, funding or vesting of any such benefits or (CD) result in any limitation on the right of Parent or any of its Subsidiaries to amend, merge, terminate or receive a reversion of assets from any Parent Benefit Plan or related trust.
(viiiv) No Parent Benefit Plan provides for the gross-up or reimbursement of Taxes under Section 409A or Section 4999 of the Code or otherwise.
Appears in 1 contract
Benefit Plans. (ia) Section 3.2(j)(iSet forth on Schedule 4.19(a) of the Parent Disclosure Letter contains is a true, true and complete and correct list of each Benefit Plan sponsoredof a Target Company (each, maintained a “Company Benefit Plan”). With respect to each Company Benefit Plan, there are no funded benefit obligations for which contributions have not been made or contributed properly accrued and there are no unfunded benefit obligations that have not been accounted for by Parent or any of its Subsidiariesreserves, or which Parent otherwise properly footnoted in accordance with GAAP on the Company Financials. No Target Company is or has in the past been a member of a “controlled group” for purposes of Section 414(b), (c), (m) or (o) of the Code, nor does any of its Subsidiaries is obligated to sponsor, maintain or contribute to, or Target Company have any Liability with respect to which Parent any collectively-bargained for plans, whether or its Subsidiaries otherwise has any liability not subject to the provisions of ERISA.
(the “Parent Benefit Plans”). No Parent b) Each Company Benefit Plan is established or maintained outside and has been operated at all times in compliance with all applicable Laws in all material respects, including ERISA and the Code. Each Company Benefit Plan which is intended to be “qualified” within the meaning of Section 401(a) of the United States Code (i) has been determined by the IRS to be so qualified (or for is based on a prototype plan which has received a favorable opinion letter) during the benefit of current or former employees of Parent or any of period from its Subsidiaries residing outside of the United States.
(ii) Parent has delivered or made available to the Company prior adoption to the date of this Agreement and (ii) its related trust has been determined to be exempt from taxation under Section 501(a) of the Code or the Target Companies have requested an initial favorable IRS determination of qualification and/or exemption within the period permitted by applicable Law. To the Company’s Knowledge, no fact exists which could adversely affect the qualified status of such Company Benefit Plans or the exempt status of such trusts.
(c) With respect to each Company Benefit Plan which covers any current or former officer, director, consultant or employee (or beneficiary thereof) of a trueTarget Company, correct the Company has provided to Purchaser accurate and complete copy of each Parent Benefit Plan currently in effect and, with respect theretocopies, if applicable, of: (Ai) all Company Benefit Plan documents and agreements and related trust agreements or annuity Contracts (including any amendments, modifications or supplements thereto); (ii) all summary plan descriptions and summary of material modifications thereto; (iii) the current trust three (or other funding vehicle3) agreementsmost recent Forms 5500, if applicable, and the most recent summary plan descriptionsannual report, including all schedules thereto; (Biv) the most recent annual report and periodic accounting of plan assets; (Form 5500 series including, where applicable, all schedules and actuarial and accountants’ reportsv) filed with the Department of Labor and the three (3) most recent actuarial report or other financial statement relating to such Parent Benefit Plan, nondiscrimination testing reports; (Cvi) the most recent determination letter received from the IRS IRS, if any; (if applicablevii) for such Parent Benefit Plan the most recent actuarial valuation; and (Dviii) all material communications with any notice to or from Governmental Authority within the IRS or any office or representative of the Department of Labor relating to any unresolved compliance issues in respect of such Parent Benefit Planlast three (3) years.
(iiid) Except as would not reasonably be expected With respect to have, individually or in the aggregate, a Material Adverse Effect on Parent, each Company Benefit Plan: (Ai) each Parent such Company Benefit Plan has been maintained administered and administered enforced in compliance all material respects in accordance with its terms and with applicable Lawterms, including, but not limited to, ERISA and the Code and in each case the regulations thereunder, ERISA; (Bii) each Parent Benefit Plan intended to be qualified under Section 401(ano breach of fiduciary duty has occurred; (iii) of the Code has received a favorable determination or opinion letter as to its qualifications from the IRS or no Action is entitled to rely on an advisory or opinion letter as to its qualifications 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 adversely affect the qualified status of any such plan, (C) neither Parent nor any of its Subsidiaries has engaged in a transaction that has resulted inpending, or would reasonably be expected to result in, the assessment of a civil penalty upon Parent or any of its Subsidiaries pursuant to Section 409 or 502(i) of ERISA or a tax imposed pursuant to Section 4975 or 4976 of the Code that has not been satisfied in full, (D) there does not now exist, nor, to the knowledge of Parent, do any circumstances exist that would reasonably be expected to result in, any Controlled Group Liability that would be a liability of Parent, any of its Subsidiaries or any of their respective ERISA Affiliates, (E) all payments required to be made by or with respect to each Parent Benefit Plan (including all contributions, insurance premiums or intercompany charges) with respect to all prior periods have been timely made or paid by Parent or its Subsidiaries in accordance with the provisions of each of the Parent 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 Parent in accordance with GAAP and (F) there are no pending or, to the knowledge of ParentCompany’s Knowledge, threatened claims by or on behalf of any Parent Benefit Plan, by any employee or beneficiary covered under any Parent Benefit Plan or otherwise involving any Parent Benefit Plan or any trusts related thereto (other than routine claims for benefitsbenefits arising in the ordinary course of administration).
; (iv) None of Parentno prohibited transaction, any of its Subsidiaries or any of their respective ERISA Affiliates 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 as defined in connection with: (A) a plan subject to Title IV or Section 302 406 of ERISA or Section 412 or Section 430 4975 of the Code, has occurred, excluding transactions effected pursuant to a statutory or administration exemption; and (Bv) all contributions and premiums due through the Closing Date have been made in all material respects as required under ERISA or have been fully accrued in all material respects on the Company Financials.
(e) No Company Benefit Plan is a “multiple employer welfare arrangement” (as defined in Section 3(40) of ERISA), a “multiple employer benefit plan” (as defined in Section 413(c414(j) of the Code) or ), a “multiemployer plan” (as defined in Section 3(37) of ERISA)) or a “multiple employer plan” (as described in Section 413(c) of the Code) or is otherwise subject to Title IV of ERISA or Section 412 of the Code, and no Target Company has incurred any Liability or otherwise could have any Liability, contingent or otherwise, under Title IV of ERISA and no condition presently exists that is expected to cause such Liability to be incurred. No Company Benefit Plan will become a multiple employer plan with respect to any Target Company immediately after the Closing Date. No Target Company currently maintains or has ever maintained, or (Cis required currently or has ever been required to contribute to or otherwise participate in, a multiple employer welfare arrangement or voluntary employees’ beneficiary association as defined in Section 501(c)(9) any plan or arrangement which provides for post-employment or post-retirement medical or welfare benefits for retired or former employees or beneficiaries or dependents thereof, except pursuant to Section 4980B of the Code or other applicable LawCode.
(vf) No arrangement exists pursuant to which a Target Company will be required to “gross up” or otherwise compensate any person because of the imposition of any excise tax on a payment to such person.
(g) With respect to each Parent Company Benefit Plan which is a “welfare plan” (as described in Section 3(1) of ERISA): (i) no such plan provides medical or death benefits with respect to current or former employees of a Target Company beyond their termination of employment (other than coverage mandated by Law, which is paid solely by such employees); and (ii) there are no reserves, assets, surplus or prepaid premiums under any such plan. The Target Company has complied in all material respects with the provisions of Section 601 et seq. of ERISA and Section 4980B of the Code.
(h) Each Company Benefit Plan satisfies the requirements of the Patient Protection and Affordable Care Act of 2010 (the “PPACA”), such that there is no reasonable expectation that any Tax or penalty could be imposed pursuant to the PPACA that relates to such group health plan. To the Knowledge of the Company, no condition exists that could cause any Target Company to have any Liability for any assessable payment under Section 4980H of the Code. To the Knowledge of the Company, no event has occurred, or condition exists, that could subject any Target Company to any Liability on account of a violation of the health care requirements of Part 6 or 7 of Title I of ERISA or Section 4980B or 4980D of the Code. Each Target Company has maintained records that are sufficient to satisfy the reporting requirements under Sections 6055 and 6056 of the Code, to the extent required, for all periods of time up to and through the Closing Date. No Target Company has modified the employment or service terms of any employee or service provider for the purpose of excluding such employee or service provider from full-time status for purposes of PPACA.
(i) Except as set forth on Schedule 4.19(i), the consummation of the transactions contemplated by this Agreement and the Ancillary Documents will not: (i) entitle any individual to severance pay, unemployment compensation or other benefits or compensation (except as set forth on Schedule 4.19(a)); (ii) accelerate the time of payment or vesting, or increase the amount of any compensation due, or in respect of, any individual; or (iii) result in or satisfy a condition to the payment of compensation that would, in combination with any other payment, result in an “excess parachute payment” within the meaning of Section 280G of the Code. No Target Company has incurred any Liability for any Tax imposed under Chapter 43 of the Code or civil liability under Section 502(i) or (l) of ERISA.
(j) All Company Benefit Plans can be terminated at any time prior to the Closing Date without resulting in any Liability to the Surviving Corporation or Purchaser or their respective Affiliates for any additional contributions, penalties, premiums, fees, fines, excise taxes or any other charges or liabilities.
(k) Each Company Benefit Plan that is subject to Title IV or Section 302 of ERISA or Section 412 or 430 409A of the Code (each, a “Parent Title IV Section 409A Plan”): (A) there does not exist any failure to meet as of the “minimum funding standard” Closing Date is indicated as such on Schedule 4.19(k). No options or other equity-based awards have been issued or granted by the Company that are, or are subject to, a Section 409A Plan. Each Section 409A Plan has been administered in compliance, and is in documentary compliance, in all material respects, with the applicable provisions of Section 412 of the Code or 302 of ERISA (whether or not waived), (B) no such plan is in “at-risk” status for purposes of Section 430 409A of the Code, (C) the present value of accrued benefits under such Parent Title IV Plan, based upon the actuarial assumptions used for funding purposes in the most recent actuarial report prepared by such Parent Title IV Plan’s actuary regulations thereunder and other official guidance issued thereunder. No Target Company has any obligation to any employee or other service provider with respect to such Parent Title IV Plan, did not, as of its latest valuation date, exceed the then current fair market value any Section 409A Plan that may be subject to any Tax under Section 409A of the assets Code. No payment to be made under any Section 409A Plan is, or to the Knowledge of such Parent Title IV Plan allocable the Company will be, subject to such accrued benefits, (D) no reportable event within the meaning penalties of Section 4043(c) of ERISA has occurred, (E) all premiums to the PBGC have been timely paid in full, (F) no liability (other than for premiums to the PBGC) under Title IV of ERISA has been or is expected to be incurred by Parent or any of its ERISA Affiliates, and (G) the PBGC has not instituted proceedings to terminate any such Parent Title IV Plan and, to the knowledge of Parent, no circumstances exist which could serve as a basis for the institution of such proceedings.
(vi) Except as set forth on Section 3.2(j)(vi409A(a)(1) of the Parent Disclosure LetterCode. There is no Contract or plan to which any Target Company is a party or by which it is bound to compensate any employee, neither the execution and delivery of this Agreement nor the consummation consultant or director for penalty taxes paid pursuant to Section 409A of the transactions contemplated hereby (either alone or in conjunction with any other event) will (A) increase any benefits otherwise payable or trigger any other obligation under any Parent Benefit Plan, (B) result in any acceleration of the time of payment, funding or vesting of any such benefits or (C) result in any limitation on the right of Parent or any of its Subsidiaries to amend, merge, terminate or receive a reversion of assets from any Parent Benefit Plan or related trustCode.
(vii) No Parent Benefit Plan provides for the gross-up or reimbursement of Taxes under Section 409A or 4999 of the Code or otherwise.
Appears in 1 contract
Samples: Merger Agreement (Pono Capital Corp)
Benefit Plans. (i) Section 3.2(j)(i3.01(m) of the Parent Company Disclosure Letter contains Schedule sets forth a true, true and complete and correct list of each Benefit Plan sponsoredall "employee benefit plans" (as defined in Section 3(3) of ERISA) and all other compensation bonus, pension, profit sharing, deferred compensation, stock ownership, stock purchase, stock option, phantom stock, retirement, employment, change-in-control, welfare, collective bargaining, severance, disability, death benefit, hospitalization and medical plans, agreements, arrangements or understandings that are maintained or contributed by Parent to (or previously contributed to) for the benefit of any current or former employee, officer or director of the Company or any of its Subsidiaries, or subsidiaries and with respect to which Parent the Company or any of its Subsidiaries is obligated subsidiaries would reasonably be expected to sponsor, maintain have direct or contribute to, or with respect to which Parent or its Subsidiaries otherwise has any contingent liability (the “Parent "Company Benefit Plans”"). No Parent Benefit Plan is established or maintained outside of the United States or for the benefit of current or former employees of Parent or any of its Subsidiaries residing outside of the United States.
(ii) Parent The Company has heretofore delivered or made available to the Company prior to the date of this Agreement a true, correct Holdcos true and complete copy copies of each Parent all Company Benefit Plan currently in effect Plans and, with respect theretoto each Company Benefit Plan, true and complete copies of the following documents: the most recent actuarial report, if applicableany; the most recent annual report, (A) all amendmentsif any; any related trust agreement, the current trust (annuity contract or other funding vehicle) agreementsinstrument, if any; the most recent determination letter, if any; and the most recent summary plan descriptionsdescription, if any.
(ii) Except as disclosed in Section 3.01(m) of the Company Disclosure Schedule: (A) none of the Company Benefit Plans is a "multiemployer plan" within the meaning of Section 3(37) of ERISA or is otherwise subject to Title IV of ERISA; (B) none of 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 Company Benefit Plans promises or other financial statement relating provides retiree medical or life insurance benefits to such Parent Benefit Plan, any person; (C) neither the most recent determination letter from the IRS (if applicable) for such Parent Company nor any of its subsidiaries has any obligation to adopt or has taken any corporate action to adopt, any new Company Benefit Plan and or, except as required by law, to amend any existing Company Benefit Plan; (D) any notice to or from the IRS or any office or representative of the Department of Labor relating to any unresolved compliance issues in respect of such Parent Benefit Plan.
(iii) Except as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on Parent, (A) each Parent Company Benefit Plan has been maintained and administered in compliance with its terms and with the applicable Lawprovisions of ERISA, including, but not limited to, ERISA and the Code and in each case all other applicable laws, rules and regulations except for any failures to so administer any Company Benefit Plan as would not have a material adverse effect on the regulations thereunder, Company; (BE) each Parent Company Benefit Plan that is intended to be qualified under within the meaning of Section 401(a) of the Code is so qualified and has received a favorable determination or opinion letter as to its qualifications from qualification and, to the IRS or is entitled Company's knowledge, nothing has occurred that would be reasonably likely to rely cause the loss of such qualification; (F) neither the Company nor any entity required to be treated as a single employer with the Company under Section 414 of the Code has any unsatisfied liability under Title IV of ERISA that would have a material adverse effect on an advisory or opinion letter as to its qualifications issued the Company, (G) other than funding obligations and benefits claims payable in the ordinary course, no event has occurred and no circumstance exists with respect to an IRS approved master and prototype or volume submitter plan, and there are no existing circumstances or any events Company Benefit Plan that have occurred could give rise to any liability that would reasonably be expected to adversely affect have a material adverse effect on the qualified status of any such planCompany, (C) neither Parent nor any whether directly or by reason of its Subsidiaries has engaged in a transaction that has resulted in, or would reasonably be expected to result in, the assessment of a civil penalty upon Parent or affiliation with any of its Subsidiaries pursuant to Section 409 or 502(i) of ERISA or a tax imposed pursuant to Section 4975 or 4976 of the Code that has not been satisfied in full, (D) there does not now exist, nor, to the knowledge of Parent, do any circumstances exist that would reasonably be expected to result in, any Controlled Group Liability that would be a liability of Parent, any of its Subsidiaries or any of their respective ERISA Affiliates, (E) all payments entity required to be made by or with respect to each Parent Benefit Plan (including all contributions, insurance premiums or intercompany charges) with respect to all prior periods have been timely made or paid by Parent or its Subsidiaries in accordance treated as a single employer with the provisions of each Company under Section 414 of the Parent Benefit Plans and applicable Law or, to the extent not required to be made or paid on or before Code; (H) as of the date hereof, have been reflected on the books and records of Parent in accordance with GAAP and (F) hereof there are no pending or, to the knowledge of Parentthe executive officers of the Company, threatened investigations, claims by or on behalf lawsuits in respect of any Parent Benefit Plan, by any employee or beneficiary covered under any Parent Company Benefit Plan or otherwise involving any Parent that would have a material adverse effect on the Company; (I) no amount payable pursuant to a Company Benefit Plan or any trusts related thereto (other than routine claims for benefits).
(iv) None plan, contract or arrangement of Parent, any of its Subsidiaries or any of their respective ERISA Affiliates 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 plan subject to Title IV or Company would be considered an "excess parachute payment" under Section 302 of ERISA or Section 412 or Section 430 280G of the Code, ; and (BJ) a “multiple employer welfare arrangement” (except as defined provided in Section 3(405.06(a) of ERISA)this Agreement, a “multiple employer plan” (as defined no Company Benefit Plan exists that could result in Section 413(c) the payment to any current or former employee, officer or director of the Code) Company of any money or other property or accelerate or provide any other rights or benefits as a “multiemployer plan” (as defined in Section 3(37) of ERISA), or (C) any plan or arrangement which provides for post-employment or post-retirement medical or welfare benefits for retired or former employees or beneficiaries or dependents thereof, except pursuant to Section 4980B result of the Code or other applicable Law.
(v) With respect to each Parent Benefit Plan that is subject to Title IV or Section 302 of ERISA or Section 412 or 430 of the Code (each, a “Parent Title IV Plan”): (A) there does not exist any failure to meet the “minimum funding standard” of Section 412 of the Code or 302 of ERISA (transactions contemplated by this Agreement whether or not waived), (B) no such plan is in “at-risk” status for purposes of Section 430 of the Code, (C) the present value of accrued benefits under such Parent Title IV Plan, based upon the actuarial assumptions used for funding purposes in the most recent actuarial report prepared by such Parent Title IV Plan’s actuary with respect to such Parent Title IV Plan, did not, as of its latest valuation date, exceed the then current fair market value of the assets of such Parent Title IV Plan allocable to such accrued benefits, (D) no reportable event payment would constitute a parachute payment within the meaning of Section 4043(c) of ERISA has occurred, (E) all premiums to the PBGC have been timely paid in full, (F) no liability (other than for premiums to the PBGC) under Title IV of ERISA has been or is expected to be incurred by Parent or any of its ERISA Affiliates, and (G) the PBGC has not instituted proceedings to terminate any such Parent Title IV Plan and, to the knowledge of Parent, no circumstances exist which could serve as a basis for the institution of such proceedings.
(vi) Except as set forth on Section 3.2(j)(vi) 280G of the Parent Disclosure Letter, 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) increase any benefits otherwise payable or trigger any other obligation under any Parent Benefit Plan, (B) result in any acceleration of the time of payment, funding or vesting of any such benefits or (C) result in any limitation on the right of Parent or any of its Subsidiaries to amend, merge, terminate or receive a reversion of assets from any Parent Benefit Plan or related trustCode.
(vii) No Parent Benefit Plan provides for the gross-up or reimbursement of Taxes under Section 409A or 4999 of the Code or otherwise.
Appears in 1 contract
Samples: Merger Agreement (Regal Cinemas Inc)
Benefit Plans. (ia) Section 3.2(j)(i) Except for the Existing Plans listed on Schedule 5.20(a), the Company and Subsidiaries do not maintain any Benefit Plan. The Company has delivered to Parent true and correct copies of each of the Parent Disclosure Letter contains a trueExisting Plans for which written documentation exists, complete together with copies of any summary plan or similar description thereof and correct list the most recent actuarial reports, audited financial statements and Form 5500 and schedules, if any, with respect thereto. Each of each the Existing Plans is in compliance in all material respects with applicable Law, including without limitation, the Code and ERISA, and any Benefit Plan sponsored, maintained or contributed terminated by Parent or any of its Subsidiaries, or which Parent or any of its Subsidiaries is obligated to sponsor, maintain or contribute to, or with respect to which Parent or its Subsidiaries otherwise has any liability (the “Parent Benefit Plans”). No Parent Benefit Plan is established or maintained outside of the United States or for the benefit of current or former employees of Parent or any of its Subsidiaries residing outside of the United States.
(ii) Parent has delivered or made available to the Company prior to or Subsidiaries during the five-year period ending with the date of this Agreement a true, correct was in compliance in all material respects with such Law and complete copy of each Parent Benefit Plan currently was terminated in effect and, compliance in all material respects with respect thereto, if applicable, (A) all amendments, the current trust (or other funding vehicle) agreements, and the most recent summary plan descriptions, (B) 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 Parent Benefit Plan, (C) the most recent determination letter from the IRS (if applicable) for such Parent Benefit Plan and (D) any notice to or from the IRS or any office or representative Law. All of the Department of Labor relating to any unresolved compliance issues in respect of such Parent Benefit Plan.
(iii) Except as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on Parent, (A) each Parent 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 thereunder, (B) each Parent Benefit Plan Existing Plans which are intended to be qualified under meet the requirements of Section 401(a) of the Code have been determined by the Internal Revenue Service to be “qualified” within the meaning of Section 401(a) of the Code or timely application has received a favorable determination or opinion letter as to its qualifications from the IRS or is entitled to rely on an advisory or opinion letter as to its qualifications issued with respect to an IRS approved master and prototype or volume submitter planbeen made therefor, and there are no existing circumstances or any events that have occurred that facts Known to the Company which would reasonably be expected to adversely affect the qualified status in all material respects of such Existing Plans. The Company or Subsidiaries are not in default in any such plan, (C) neither Parent nor respect in performing its obligations under any of its Subsidiaries has engaged in a transaction that has resulted inthe Existing Plans, or would reasonably be expected to result in, the assessment of a civil penalty upon Parent or any of its Subsidiaries pursuant to Section 409 or 502(i) of ERISA or a tax imposed pursuant to Section 4975 or 4976 of the Code that has not been satisfied in full, (D) there does not now exist, nor, to the knowledge of Parent, do any circumstances exist that would reasonably be expected to result in, any Controlled Group Liability that would be a liability of Parent, any of its Subsidiaries or any of their respective ERISA Affiliates, (E) all payments required to be made by or with respect to each Parent Benefit Plan (including and all contributions, insurance premiums payments, liabilities or intercompany charges) with respect obligations under any Existing Plans that are required to all prior periods have been timely made or paid by Parent or its Subsidiaries in accordance with the provisions of each of the Parent Benefit Plans and applicable Law or, to the extent not required to be made or paid on or before the date hereof, hereof have been reflected paid or that are required to have been accrued on the date hereof on the books of account of the Company and records Subsidiaries by GAAP applied consistently with the past practice of Parent in accordance with GAAP and the Company for year-end financial statements have been so accrued.
(Fb) there are no pending orWith respect to each Existing Plan, all reports required under ERISA or any other applicable law or regulation to the knowledge of Parent, threatened claims be filed by or on behalf of any Parent Benefit Plan, by any employee such Plan with the relevant governmental authority the failure of which to file could reasonably result in liability to the Company or beneficiary covered under any Parent Benefit Plan or otherwise involving any Parent Benefit Plan or any trusts related thereto (other than routine claims for benefits).Subsidiaries have been duly filed and all such reports are true and correct in all material respects as of the date given. QB\136339.00047\18274478.12
(ivc) None of ParentNeither the Company, any of its Subsidiaries or nor any of their respective ERISA Affiliates maintainsnor any Existing Plan has engaged in a “prohibited transaction” (as such term is defined in Section 4975 of the Code and Sections 406 and 408 of ERISA), contributes to, which would subject the Company or participates in, Subsidiaries (after giving effect to any exemption) or has ever during any Existing Plan to the past six (6) years maintained, contributed to, tax or participated in, or otherwise has any obligation or liability in connection with: (A) a plan subject to Title IV or penalty on prohibited transactions imposed by Section 302 of ERISA or Section 412 or Section 430 4975 of the Code, Section 502 of ERISA or any other liability.
(Bd) a No Existing Plan has been terminated, nor has any “multiple employer welfare arrangementaccumulated funding deficiency” (as defined in Section 3(40412(a) of the Code) been incurred (without regard to any waiver granted under Section 412 of the Code), and no funding waiver from the Internal Revenue Service has been received or requested with respect to any Existing Plan and neither the Company, Subsidiaries nor any of its ERISA Affiliates failed to make any contributions or to pay any amounts due and owing as required by Section 412 of the Code, Section 302 of ERISA or the terms of any Existing Plan prior to the due date of such contribution under Section 412 of the Code or Section 302 of ERISA, nor has there been any reportable event or any event requiring disclosure under Section 4041(c)(3)(C), 4063(a) or 4068(f) of ERISA with respect to any Existing Plan.
(e) The value of the assets of each Existing Plan which is a “defined benefit” plan (as defined in Section 3(35) of ERISA), a ) equaled or exceeded the present value of the “multiple employer planbenefit liabilities” (as defined in Section 413(c4001(a)(16) of ERISA) of each such plan as of the end of the preceding plan year, using the plan’s actuarial assumptions as in effect for such plan year.
(f) There are no claims (other than claims for benefits in the normal course), actions or lawsuits asserted or instituted against, and there are no pending or to the Knowledge of the Company threatened litigation or claims against, the assets of any Existing Plan or against any fiduciary of such Existing Plan with respect to the operation of such Existing Plan, which, if adversely determined, could have an adverse effect in excess of $25,000 in the aggregate on the business, operations, properties, assets or condition (financial or otherwise) of the CodeCompany and Subsidiaries.
(g) Except as specified otherwise in Schedule 5.20(g) attached to this Agreement, each of the Existing Plans can be terminated by the Company or Subsidiaries, as applicable, within a “period of 30 days following the Closing Date, without payment of any additional compensation or amount or the additional vesting or acceleration of any benefits under any of such plans, and none of the transactions contemplated by this Agreement shall result in the acceleration of any payments under any Existing Plan.
(h) Neither the Company, Subsidiaries nor any of their ERISA Affiliates has incurred (a) any liability to the PBGC (other than routine claims and premium payments), (b) any withdrawal liability (and no event has occurred which, with the giving of notice under Section 4219 of ERISA, would result in such liability) under Section 4201 of ERISA as a result of a complete or partial withdrawal (within the meaning of Section 4203 or 4205 of ERISA) from a multiemployer plan” (as defined plan described in Section 3(37) of ERISA)ERISA or (c) any liability under ERISA Section 4062 to the PBGC, or (C) any plan or arrangement which provides for post-employment or post-retirement medical or welfare benefits for retired or former employees or beneficiaries or dependents thereof, except pursuant to a trustee appointed under Section 4980B 4042 of the Code or other applicable LawERISA.
(vi) With respect Neither the Company, Subsidiaries nor any of their ERISA Affiliates has any liability as a successor of any other organization to each Parent any Benefit Plan that is subject (or beneficiary, QB\136339.00047\18274478.12 sponsor, trustee or fiduciary of such plan) pursuant to successor liability rules of Title IV or Section 302 of ERISA or Section 412 federal common law.
(j) Except as set forth in Schedule 5.20(j) hereto, the Company does not have any Existing Plan or 430 other agreements, arrangements or commitments that contain any severance or termination pay liabilities or obligations, whether legally binding or not, with any employee or former employee, and the Company and Subsidiaries are not presently paying any severance or termination payments to any former employee.
(k) Schedule 5.20(k) attached hereto sets forth the true and correct amount of vacation, holiday and sick pay unpaid as of the Code (each, a “Parent Title IV Plan”): (A) there does not exist any failure to meet the “minimum funding standard” of Section 412 date hereof for all employees of the Code Company and Subsidiaries (i) who have not as of the date hereof taken vacation, holiday or 302 sick time earned prior to the date hereof; (ii) who have not earned vacation, holiday or sick time as of ERISA (the date hereof but will earn vacation, holiday or sick time for any period or partial period of employment prior to the date hereof if they continue as employees of the Company and Subsidiaries to the date when such vacation, holiday or sick time will accrue to them. Except as set forth in Schedule 5.20(k) attached hereto, as of the date hereof, the Company and Subsidiaries do not have any liability, obligation or commitment to any of their employees for vacation, holiday or sick pay earned or accrued up to and including the date hereof, whether or not waived)vested.
(l) Neither the Company, (B) no such Subsidiaries nor any of their ERISA Affiliates contributes, is required to contribute and since January 1, 1976 has contributed, to any multiemployer plan is in “at-risk” status for purposes of Section 430 of the Code, (C) the present value of accrued benefits under such Parent Title IV Plan, based upon the actuarial assumptions used for funding purposes in the most recent actuarial report prepared by such Parent Title IV Plan’s actuary with respect to such Parent Title IV Plan, did not, as of its latest valuation date, exceed the then current fair market value of the assets of such Parent Title IV Plan allocable to such accrued benefits, (D) no reportable event within the meaning of Section 4043(c3(37) of ERISA has occurred, (E) all premiums to the PBGC have been timely paid in full, (F) no liability (other than for premiums to the PBGC) under Title IV of ERISA has been or is expected to be incurred by Parent or any of its ERISA Affiliates, and (G) the PBGC has not instituted proceedings to terminate any such Parent Title IV Plan and, to the knowledge of Parent, no circumstances exist which could serve as a basis for the institution of such proceedingsERISA.
(vim) Except as set forth on Section 3.2(j)(vi) of No person has asserted any claim under which the Parent Disclosure Letter, neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby (either alone Company or in conjunction with Subsidiaries have any other event) will (A) increase any benefits otherwise payable or trigger any other obligation liability under any Parent Benefit Planworker’s compensation or similar Law, (B) result in any acceleration of the time of paymentwhich is not fully covered by insurance maintained with unaffiliated, funding or vesting of any such benefits or (C) result in any limitation financially sound, reputable insurers or, if not insured, for which an adequate reserve is not reflected on the right of Parent or any of its Subsidiaries to amend, merge, terminate or receive a reversion of assets from any Parent Benefit Plan or related trustFinal Closing Date Net Working Capital Statement.
(vii) No Parent Benefit Plan provides for the gross-up or reimbursement of Taxes under Section 409A or 4999 of the Code or otherwise.
Appears in 1 contract
Benefit Plans. Section 4.1 (i) Section 3.2(j)(io) of the Parent Disclosure Letter contains sets forth a true, correct and complete and correct list of all the material "employee benefit plans" (as that phrase is defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")) in each Benefit Plan case, that is sponsored, maintained or contributed to or required to be contributed to by Parent the Company or by any trade or business, whether or not incorporated (an "ERISA Affiliate"), that together with the Company would be deemed a "single employer" within the meaning of its SubsidiariesSection 4001(b) of ERISA, or to which Parent the Company or an ERISA Affiliate is party, whether written or oral, for the benefit of any current or former employee, officer or director of the Company or any of its Subsidiaries is obligated to sponsor, maintain or contribute to, or with respect to which Parent or its Subsidiaries otherwise has any liability (the “Parent Benefit "Company ERISA Plans”). No Parent Benefit Plan ") and any other material benefit or compensation plan, program or arrangement, in each case, that is established sponsored, maintained or maintained outside of contributed to or required to be contributed to by the United States Company or an ERISA Affiliate, whether written or oral, for the benefit of any current or former employees employee, officer or director of Parent the Company or any of its Subsidiaries residing outside of in the United States.
States (ii) Parent the Company ERISA Plans and such other plans being referred to as the "Company Plans"). The Company has delivered furnished or made available to the Company prior to the date of this Agreement Parent and its representatives a true, correct and complete copy of every document pursuant to which each Parent Benefit Company Plan currently in effect andis established or operated (including any summary plan descriptions), with respect thereto, if applicable, (A) all amendments, the current trust (or other funding vehicle) agreementsa written description of any Company Plan for which there is no written document, and the most recent summary plan descriptionsannual reports, (B) the most recent annual report (Form 5500 series including, where applicable, all schedules financial statements and actuarial and accountants’ reportsvaluations with respect to each Company Plan. Except as set forth in Section 4.1(o) filed with the Department of Labor and the most recent actuarial report or other financial statement relating to such Parent Benefit Plan, (C) the most recent determination letter from the IRS (if applicable) for such Parent Benefit Plan and (D) any notice to or from the IRS or any office or representative of the Department of Labor relating Disclosure Letter and except where the failure to any unresolved compliance issues in respect of such Parent Benefit Plan.
(iii) Except as comply would not reasonably be expected to have, individually or in the aggregate, have a Material Adverse Effect on ParentEffect:
(i) none of the Company ERISA Plans is a "multiemployer plan" within the meaning of ERISA;
(ii) none of the Company Plans promises or provides retiree health benefits or retiree life insurance benefits to any person;
(iii) none of the Company Plans provides for payment of a benefit, the increase of a benefit amount, the payment of a contingent benefit or the acceleration of the payment or vesting of a benefit determined or occasioned, in whole or in part, by reason of the execution of this Agreement or the consummation of the transactions contemplated by this Agreement;
(Aiv) neither the Company nor any of its Subsidiaries has an obligation to adopt, or is considering the adoption of, any new benefit or compensation plan, program or arrangement or, except as required by law, the amendment of an existing Company Plan;
(v) each Parent Benefit Plan has been maintained and administered in compliance with its terms and with applicable Law, including, but not limited to, Company ERISA and the Code and in each case the regulations thereunder, (B) each Parent Benefit Plan intended to be qualified under Section 401(a) of the Code has received a favorable determination or notification, advisory and/or opinion letter letter, as to its qualifications applicable, from the IRS Internal Revenue Service that it is so qualified or is entitled still has remaining a period of time under applicable Treasury Regulations or Internal Revenue Service pronouncements in which to rely on an advisory or opinion apply for such a letter as and to its qualifications issued with respect make any amendments necessary to an IRS approved master obtain a favorable determination and prototype or volume submitter plan, and there are no existing circumstances or any events that have nothing has occurred since the date of such letter that would reasonably be expected to adversely affect the qualified status of such Company ERISA Plan;
(vi) each Company Plan has been operated in accordance with its terms and the requirements of all applicable law, and no prohibited transaction described in Section 406 of ERISA or Section 4975 of the Code has occurred with respect to any such plan, the Company ERISA Plan;
(Cvii) neither Parent the Company nor any of its Subsidiaries or members of their "controlled group" has engaged in a transaction that has resulted in, incurred any direct or would reasonably be expected to result in, the assessment of a civil penalty upon Parent or any of its Subsidiaries pursuant to Section 409 or 502(i) of indirect liability under ERISA or a tax imposed pursuant to Section 4975 or 4976 of the Code that has not been satisfied in fullconnection with the termination of, (D) there does not now existwithdrawal from or failure to fund, norany Company ERISA Plan or other retirement plan or arrangement, to the knowledge of Parent, do any circumstances exist and no fact or event exists that would reasonably be expected to result in, give rise to any Controlled Group Liability that would be a liability of Parent, any of its Subsidiaries or any of their respective ERISA Affiliates, such liability;
(Eviii) all payments required to be made by or with respect to each Parent Benefit Plan (including all contributions, insurance premiums or intercompany charges) with respect to all prior periods have been timely made or paid by Parent or its Subsidiaries in accordance with the provisions aggregate accumulated benefit obligations of each of the Parent 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 Parent in accordance with GAAP and (F) there are no pending or, to the knowledge of Parent, threatened claims by or on behalf of any Parent Benefit Plan, by any employee or beneficiary covered under any Parent Benefit Company ERISA Plan or otherwise involving any Parent Benefit Plan or any trusts related thereto (other than routine claims for benefits).
(iv) None of Parent, any of its Subsidiaries or any of their respective ERISA Affiliates 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 plan subject to Title IV or Section 302 of ERISA or Section 412 or Section 430 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 plan” (as defined in Section 3(37) of ERISA), or (C) any plan or arrangement which provides for post-employment or post-retirement medical or welfare benefits for retired or former employees or beneficiaries or dependents thereof, except pursuant to Section 4980B of the Code or other applicable Law.
(v) With respect to each Parent Benefit Plan that is subject to Title IV or Section 302 of ERISA or Section 412 or 430 of the Code (each, a “Parent Title IV Plan”): (A) there does not exist any failure to meet the “minimum funding standard” of Section 412 of the Code or 302 of ERISA (whether or not waived), (B) no such plan is in “at-risk” status for purposes of Section 430 as of the Code, (C) the present value date of accrued benefits under such Parent Title IV Plan, based upon the actuarial assumptions used for funding purposes in the most recent actuarial report valuation prepared by for such Parent Title IV Plan’s actuary with respect to Company ERISA Plan and based on the discount rate and other actuarial assumptions used in such Parent Title IV Plan, did not, as of its latest valuation date, valuation) do not exceed the then current fair market value of the assets of such Parent Title IV Company ERISA Plan allocable (as of the date of such valuation);
(ix) the Company is not aware of any claims relating to such accrued the Company Plans, other than routine claims for benefits;
(x) none of the Company Plans provides for benefits or other participation therein, and the Company has received no claims or demands for participation in or benefits under any Company Plan, by any individual classified or treated by the Company as an independent contractor; and
(Dxi) no reportable event neither the Company nor any Subsidiary is a party to any agreement, contract, arrangement or plan that has resulted, or would result, separately or in the aggregate, in the payment of any "excess parachute payments" within the meaning of Section 4043(c) of ERISA has occurred, (E) all premiums to the PBGC have been timely paid in full, (F) no liability (other than for premiums to the PBGC) under Title IV of ERISA has been or is expected to be incurred by Parent or any of its ERISA Affiliates, and (G) the PBGC has not instituted proceedings to terminate any such Parent Title IV Plan and, to the knowledge of Parent, no circumstances exist which could serve as a basis for the institution of such proceedings.
(vi) Except as set forth on Section 3.2(j)(vi) of the Parent Disclosure Letter, 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) increase any benefits otherwise payable or trigger any other obligation under any Parent Benefit Plan, (B) result in any acceleration of the time of payment, funding or vesting of any such benefits or (C) result in any limitation on the right of Parent or any of its Subsidiaries to amend, merge, terminate or receive a reversion of assets from any Parent Benefit Plan or related trust.
(vii) No Parent Benefit Plan provides for the gross-up or reimbursement of Taxes under Section 409A or 4999 280G of the Code as a result of any transaction or otherwiseevent contemplated by this Agreement.
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Benefit Plans. (ia) Section 3.2(j)(i5.13(a) of the Parent Company Disclosure Letter contains a true, true and complete and correct list of each Benefit Plan sponsoredunder which (i) any current or former employee, maintained director or contributed by Parent or consultant of the Company (other than any portfolio company of its Subsidiaries, or which Parent or any of its Subsidiaries is obligated to sponsor, maintain or contribute to, or with respect to which Parent or its Subsidiaries otherwise has any liability the Funds) (the “Parent Company Employees”) has any present or future right to benefits and which are contributed to, sponsored by or maintained by the Company (other than any portfolio company of the Funds) or (ii) the Company (other than any portfolio company of the Funds) has had or has any present or future liability. All such Benefit Plans shall be collectively referred to as the “Company Benefit Plans”). No Parent Benefit Plan is established or maintained outside of the United States or for the benefit of current or former employees of Parent or any of its Subsidiaries residing outside of the United States.
(iib) Parent With respect to each Company Benefit Plan the Company has delivered or made available to the Company prior to the date of this Agreement Purchaser a truecurrent, correct accurate and complete copy of each Parent Benefit Plan currently in effect (or, to the extent no such copy exists, an accurate description) thereof and, with respect thereto, if to the extent applicable, : (Ai) all amendments, the current any related trust (agreement or other funding vehicle) agreements, and the most recent summary plan descriptions, instrument; (B) 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 Parent Benefit Plan, (Cii) the most recent determination letter from the IRS (letter, if applicable; (iii) any summary plan description; and (iv) for such Parent Benefit Plan the two most recent years (A) the Form 5500 and attached schedules, (B) audited financial statements and (DC) any notice to or from the IRS or any office or representative of the Department of Labor relating to any unresolved compliance issues in respect of such Parent Benefit Planactuarial valuation reports, as applicable.
(iiii) Except as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on Parent, (A) each Parent Each Company Benefit Plan has been maintained established and administered in all material respects in accordance with its terms, and in material compliance with its terms and with the applicable Lawprovisions of ERISA, including, but not limited to, ERISA and the Code and in each case the regulations thereunder, other Applicable Laws; (Bii) each Parent Company Benefit Plan that is intended to be qualified under within the meaning of Section 401(a) of the Code has received a favorable determination or opinion letter as to its qualifications from the IRS or is entitled to rely on an advisory or opinion letter as to its qualifications issued with respect to an IRS approved master and prototype or volume submitter planqualification, and there are no existing circumstances nothing has occurred, whether by action or any events failure to act, that have occurred that would could reasonably be expected to adversely affect cause the qualified status loss of such qualification; and (iii) the Company has not incurred any such plancurrent or projected liability in respect of post-employment or post-retirement health, (C) neither Parent nor any medical or life insurance benefits for current, former or retired employees of its Subsidiaries has engaged in a transaction that has resulted inCompany, except as required to avoid an excise tax under Section 4980B of the Code or would reasonably otherwise except as may be expected to result in, the assessment of a civil penalty upon Parent or any of its Subsidiaries required pursuant to Section 409 or 502(iany other Applicable Law.
(d) No Company Benefit Plan is subject to the funding requirements of Title IV of ERISA or a tax imposed pursuant to Section 4975 or 4976 of the Code that has not been satisfied in full, (D) there does not now exist, nor, to the knowledge of Parent, do any circumstances exist that would reasonably be expected to result in, any Controlled Group Liability that would be a liability of Parent, any of its Subsidiaries or any of their respective ERISA Affiliates, (E) all payments required to be made by or with respect to each Parent Benefit Plan (including all contributions, insurance premiums or intercompany charges) with respect to all prior periods have been timely made or paid by Parent or its Subsidiaries in accordance with the provisions of each of the Parent 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 Parent in accordance with GAAP and (F) there are no pending or, to the knowledge of Parent, threatened claims by or on behalf of any Parent Benefit Plan, by any employee or beneficiary covered under any Parent Benefit Plan or otherwise involving any Parent Benefit Plan or any trusts related thereto (other than routine claims for benefits).
(iv) None of Parent, any of its Subsidiaries or any of their respective ERISA Affiliates 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 plan subject to Title IV or Section 302 of ERISA or Section 412 or Section 430 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 is a “multiemployer plan” (as defined in Section 3(374001(a)(3) of ERISA)) and neither the Company nor any member of its Controlled Group has at any time sponsored or contributed to, or (C) has or had any plan liability or arrangement which provides for post-employment or post-retirement medical or welfare benefits for retired or former employees or beneficiaries or dependents thereofobligation in respect of, except pursuant to Section 4980B of the Code or other applicable Lawany multiemployer plan.
(ve) With respect to each Parent No Company Benefit Plan that is subject to Title IV or Section 302 of ERISA or Section 412 or 430 exists that, as a result of the Code (each, a “Parent Title IV Plan”): (A) there does not exist any failure to meet the “minimum funding standard” of Section 412 of the Code or 302 of ERISA (whether or not waived), (B) no such plan is in “at-risk” status for purposes of Section 430 of the Code, (C) the present value of accrued benefits under such Parent Title IV Plan, based upon the actuarial assumptions used for funding purposes in the most recent actuarial report prepared by such Parent Title IV Plan’s actuary with respect to such Parent Title IV Plan, did not, as of its latest valuation date, exceed the then current fair market value of the assets of such Parent Title IV Plan allocable to such accrued benefits, (D) no reportable event within the meaning of Section 4043(c) of ERISA has occurred, (E) all premiums to the PBGC have been timely paid in full, (F) no liability (other than for premiums to the PBGC) under Title IV of ERISA has been or is expected to be incurred by Parent or any of its ERISA Affiliates, and (G) the PBGC has not instituted proceedings to terminate any such Parent Title IV Plan and, to the knowledge of Parent, no circumstances exist which could serve as a basis for the institution of such proceedings.
(vi) Except as set forth on Section 3.2(j)(vi) of the Parent Disclosure Letter, neither the execution and delivery of this Agreement nor the and consummation of the transactions contemplated hereby hereby, will (either alone i) entitle any Company Employee to any increase in severance pay upon any termination of employment after the date of this Agreement, (ii) accelerate the time of payment or vesting or result in conjunction with any payment or funding (through a grantor trust or otherwise) of compensation or benefits under, increase the amount payable or result in any other event) will (A) increase material obligation pursuant to, any benefits otherwise payable or trigger any other obligation under any Parent of the Company Benefit PlanPlans, (Biii) limit or restrict the right of the Company to merge, amend or terminate any of the Company Benefit Plans, (iv) cause the Company to record additional compensation expense on its income statement with respect to any outstanding stock option or other equity-based award, or (v) result in payments under any acceleration of the time Company Benefit Plans which would not be deductible under Section 280G of payment, funding or vesting of any such benefits or (C) result in any limitation on the right of Parent or any of its Subsidiaries to amend, merge, terminate or receive a reversion of assets from any Parent Benefit Plan or related trustCode.
(viif) No Parent Benefit Plan provides for the gross-up or reimbursement of Taxes under Section 409A or 4999 None of the Code or otherwiseCompany Accounts has to date constituted a “plan assets fund” subject to ERISA.
Appears in 1 contract
Benefit Plans. (ia) The Company does not sponsor any "employee benefit plans" (as defined in Section 3.2(j)(i3(3) of the Parent Disclosure Letter contains a trueEmployee Retirement Income Security Act of 1974, complete as amended ("ERISA")). Schedule 2.14 sets forth all "employee benefit plans" (as defined in Section 3(3) of ERISA), bonus, incentive, deferred compensation, severance, stock or stock option plans, and correct list of each other material employee fringe benefit plans or arrangements, (the foregoing being herein called the "Benefit Plan sponsoredPlans") maintained, maintained or contributed by Parent or any of its Subsidiaries, or which Parent or any of its Subsidiaries is obligated to sponsor, maintain or contribute to, by Seller or with respect to which Parent or its Subsidiaries otherwise has any liability (the “Parent Benefit Plans”). No Parent Benefit Plan is established or maintained outside of the United States or Company for the benefit of current or former employees of Parent or any of its Subsidiaries residing outside of the United States.
(ii) Parent Employees. Seller has delivered or made available to the Company prior to the date of this Agreement a true, correct and complete copy of each Parent Benefit Plan currently in effect and, with respect thereto, Buyer (if applicable) copies of (i) each of the Benefit Plans and any amendments thereto (or, in the case of any unwritten Benefit Plans, written descriptions thereof), (A) all amendments, the current trust (or other funding vehicle) agreements, and the most recent summary plan descriptions, (Bii) the most recent annual report (on Form 5500 series including, where applicable, all schedules and actuarial and accountants’ reports) filed with the Department Internal Revenue Service with respect to any of Labor the Benefit Plans, and the (iii) each trust agreement and group annuity contract and most recent actuarial report or other financial statement relating to such Parent Benefit Plan, (C) the most recent IRS determination letter from the IRS (if applicable) for such Parent Benefit Plan and (D) any notice to or from the IRS or any office or representative of the Department of Labor letters relating to any unresolved compliance issues in respect of such Parent the Benefit PlanPlans.
(iiib) Except as The Benefit Plans are, and at all times in the past have been, operated in compliance with the applicable provisions of ERISA, the Code, or any other law, and the regulations and published interpretations thereunder, except where noncompliance would not have a Material Adverse Effect. Each contribution or other payment that is required to have been made under or with respect to any Benefit Plan has been made on a timely basis except where a failure to make such contribution or payment would not have a Material Adverse Effect.
(c) Seller and the Company have performed in all material respects all of their obligations under all such Benefit Plans required to be performed as of the date of this Agreement. No event has occurred that could reasonably be expected to havesubject any such Benefit Plan to any material tax under Section 511 of the Code, individually and no "prohibited transaction" (within the meaning of Section 4975 of the Code or in Sections 406 or 408 of ERISA) has occurred with respect to such Benefit Plans that could reasonably be expected to give rise to any material tax or penalty. There are no actions (other than routine claims for benefits) pending or, to the aggregateknowledge of Seller, threatened against such Benefit Plans or their assets, or arising out of such Benefit Plans, and, to the knowledge of Seller, no facts exist which could reasonably be expected to give rise to any such actions that would have a Material Adverse Effect on Parentthe Company.
(d) Except as set forth on Schedule 2.14, no Benefit Plan:
(i) provides or provided any benefit guaranteed by the Pension Benefit Guaranty Corporation;
(ii) is or was a "multiemployer plan" as defined in Section 4001(a)(3) of ERISA; or
(iii) is or was subject to the minimum funding standards of Section 412 of the Code or Section 302 of ERISA.
(e) Except as set forth on Schedule 2.14, there is no person or entity other than Seller and the Company that (by reason of common control or otherwise) is treated together with Seller and the Company as a single employer within the meaning of Section 414 of the Code.
(f) Except as set forth in Schedule 2.14, no Benefit Plan provides death, medical or health and welfare benefits with respect to any current or former Employee after any such Employee's termination of service (other than (i) benefit coverage mandated by applicable law, including coverage provided pursuant to Section 4980B of the Code, (Aii) each Parent Benefit Plan has been maintained deferred compensation benefits accrued as liabilities, and administered in compliance with its terms and with applicable Law, including, but not limited to, ERISA (iii) benefits the full cost of which are borne by current or former Employees and the Code and Employees' beneficiaries).
(g) With respect to each of the Benefit Plans constituting a group health plan within the meaning of Section 4980B (g)(2) of the Code, the provisions of Section 4980B of the Code, "COBRA", have been materially complied with in each case all material respects.
(h) Except as set forth in Schedule 2.14, none of the regulations thereunderBenefit Plans of the Company or Seller (i) provide for the payment of separation, severance, termination or similar type of benefits to any person; or (Bii) each Parent obligate the Company to make any payment or provide any benefit that is subject to a tax under Section 4999 of the Code.
(i) Except as set forth in Schedule 2.14, neither the execution, delivery or performance of this Agreement, nor the consummation of the other transactions contemplated by this Agreement, will result in any payment (including any bonus or parachute payment under Section 280G of the Code) to any current or former Employee, service provider or director of the Company, or materially increase the benefits payable under any Benefit Plan Plan, or result in any acceleration of the time of payment or retiring of such benefits.
(j) Each of the Benefit Plans intended to be qualified under Section 401(a) of the Code has received a favorable determination or opinion letter as to its qualifications from the IRS or is entitled to rely on an advisory or opinion letter as to its qualifications issued with respect to an IRS approved master and prototype or volume submitter planInternal Revenue Service, and there are no existing circumstances or any events that have occurred that would reasonably be expected to adversely affect the qualified status Seller is not aware of any such plan, (C) neither Parent nor any of its Subsidiaries has engaged in a transaction that has resulted in, or would reasonably be expected to result in, the assessment of a civil penalty upon Parent or any of its Subsidiaries pursuant to Section 409 or 502(i) of ERISA or a tax imposed pursuant to Section 4975 or 4976 of the Code that has not been satisfied in full, (D) there does not now exist, nor, to the knowledge of Parent, do any circumstances exist that would reasonably be expected to result in, any Controlled Group Liability that would be a liability of Parent, any of its Subsidiaries or any of their respective ERISA Affiliates, (E) all payments required to be made by or with respect to each Parent Benefit Plan (including all contributions, insurance premiums or intercompany charges) with respect to all prior periods have been timely made or paid by Parent or its Subsidiaries in accordance with the provisions of each of the Parent 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 Parent in accordance with GAAP and (F) there are no pending or, to the knowledge of Parent, threatened claims by or on behalf of any Parent Benefit Plan, by any employee or beneficiary covered under any Parent Benefit Plan or otherwise involving any Parent Benefit Plan or any trusts related thereto (other than routine claims for benefits).
(iv) None of Parent, any of its Subsidiaries or any of their respective ERISA Affiliates 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 plan subject to Title IV or Section 302 of ERISA or Section 412 or Section 430 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 plan” (as defined in Section 3(37) of ERISA), or (C) any plan or arrangement which provides for post-employment or post-retirement medical or welfare benefits for retired or former employees or beneficiaries or dependents thereof, except pursuant to Section 4980B of the Code or other applicable Law.
(v) With respect to each Parent Benefit Plan that is subject to Title IV or Section 302 of ERISA or Section 412 or 430 of the Code (each, a “Parent Title IV Plan”): (A) there does not exist any failure to meet the “minimum funding standard” of Section 412 of the Code or 302 of ERISA (whether or not waived), (B) no such plan is in “at-risk” status for purposes of Section 430 of the Code, (C) the present value of accrued benefits under such Parent Title IV Plan, based upon the actuarial assumptions used for funding purposes in the most recent actuarial report prepared by such Parent Title IV Plan’s actuary with respect to such Parent Title IV Plan, did not, as of its latest valuation date, exceed the then current fair market value of the assets of such Parent Title IV Plan allocable to such accrued benefits, (D) no reportable event within the meaning of Section 4043(c) of ERISA has occurred, (E) all premiums to the PBGC have been timely paid in full, (F) no liability (other than for premiums to the PBGC) under Title IV of ERISA has been or is expected to be incurred by Parent or any of its ERISA Affiliates, and (G) the PBGC has not instituted proceedings to terminate any such Parent Title IV Plan and, to the knowledge of Parent, no circumstances exist which could serve as a reasonable basis for the institution revocation of such proceedingsletter.
(vi) Except as set forth on Section 3.2(j)(vi) of the Parent Disclosure Letter, 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) increase any benefits otherwise payable or trigger any other obligation under any Parent Benefit Plan, (B) result in any acceleration of the time of payment, funding or vesting of any such benefits or (C) result in any limitation on the right of Parent or any of its Subsidiaries to amend, merge, terminate or receive a reversion of assets from any Parent Benefit Plan or related trust.
(vii) No Parent Benefit Plan provides for the gross-up or reimbursement of Taxes under Section 409A or 4999 of the Code or otherwise.
Appears in 1 contract
Benefit Plans. (ia) Section 3.2(j)(i3.11(a) of the Parent Seller Disclosure Letter contains Schedule sets forth a truelist of each material Benefit Plan that covers any Business Employee who provides services primarily to the Business. With respect to each Benefit Plan, Seller has made available to Purchaser complete and correct list copies of each the current plan document (or a written description of material terms if no plan document exists) and, if required by applicable Law, the Benefit Plan’s summary plan description. Each Benefit Plan sponsored, maintained or contributed by Parent or any of its Subsidiaries, or which Parent or any of its Subsidiaries is obligated to sponsor, maintain or contribute to, or with respect to which Parent or its Subsidiaries otherwise has any liability (the “Parent Benefit Plans”). No Parent Benefit Plan is established or maintained outside of the United States or for the benefit of current or former employees of Parent or any of its Subsidiaries residing outside of the United States.
(ii) Parent has delivered or made available to the Company prior to the date of this Agreement a true, correct and complete copy of each Parent Benefit Plan currently in effect and, with respect thereto, if applicable, (A) all amendments, the current related trust (or other funding vehicle) agreements, and the most recent summary plan descriptions, (B) 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 Parent Benefit Plan, (C) the most recent determination letter from the IRS (if applicable) for such Parent Benefit Plan and (D) any notice to or from the IRS or any office or representative of the Department of Labor relating to any unresolved compliance issues in respect of such Parent Benefit Plan.
(iii) Except as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on Parent, (A) each Parent Benefit Plan has been maintained established, maintained, funded and administered in compliance all material respects and complies in all material respects, with respect to any Business Employee, with its terms and with all applicable LawLaws (including ERISA and, including, but not limited to, ERISA and the Code and in each case the regulations thereunder, (B) each Parent Code). Each Benefit Plan that is intended to be qualified under Section 401(a) of the Code (a “Qualified Benefit Plan”) has received a favorable determination or opinion letter as to its qualifications from the IRS Internal Revenue Service, or is entitled to rely on an advisory or opinion letter as to its qualifications issued with respect to an IRS approved master and a prototype or volume submitter plan, can rely on an opinion letter from the Internal Revenue Service to the prototype or volume submitter plan sponsor, in each case a copy of which has been made available to Purchaser, to the effect that such Qualified Benefit Plan is so qualified and there that the plan and the trust related thereto are no existing circumstances or any events that have exempt from federal income Taxes under Sections 401(a) and 501(a), respectively, of the Code, and nothing has occurred that would could reasonably be expected to cause the revocation of such determination letter from the Internal Revenue Service or the unavailability of reliance on such opinion letter from the Internal Revenue Service, as applicable or otherwise adversely affect the qualified status qualification of such Benefit Plan. With respect to any such plan, (C) neither Parent nor Benefit Plan and any of its Subsidiaries has engaged in a transaction that has resulted in, or would reasonably be expected to result in, the assessment of a civil penalty upon Parent or any of its Subsidiaries pursuant to Section 409 or 502(i) of ERISA or a tax imposed pursuant to Section 4975 or 4976 of the Code that has not been satisfied in full, (D) there does not now exist, norBusiness Employee, to the knowledge of ParentSeller, do any circumstances exist no event has occurred or is reasonably expected to occur that has resulted in or would subject Seller to a Tax under Section 4971 of the Code. No event has occurred that would reasonably be expected subject the Transferred Assets to result ina lien under Section 430(k) of the Code. All contributions, any Controlled Group Liability that would be a liability of Parentdistributions, any of its Subsidiaries or any of their respective ERISA Affiliates, (E) all reimbursements and premium payments required to be made by or due with respect to any Business Employee under or pursuant to each Parent Benefit Plan (including all contributions, insurance premiums or intercompany charges) with respect prior to all prior periods the Closing will have been timely made or paid by Parent or its Subsidiaries in accordance with the provisions of each as of the Parent 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 Parent in accordance with GAAP and (F) there are no pending or, to the knowledge of Parent, threatened claims by or on behalf of any Parent Benefit Plan, by any employee or beneficiary covered under any Parent Benefit Plan or otherwise involving any Parent Benefit Plan or any trusts related thereto (other than routine claims for benefits)Closing.
(ivb) None of ParentNo Benefit Plan is, and neither Seller nor any of its Subsidiaries or any of their respective ERISA Affiliates 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 current or contingent liability or obligation under or liability in connection withwith respect to: (Ai) a plan that is or subject to Title IV or the minimum funding standards of Section 302 of ERISA or Section 412 or Section 430 of the Code, ; or (Bii) a “multiple multi-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 plan” (as defined in Section 3(37) of ERISA), . Neither Seller nor any of its Affiliates has: (A) withdrawn from any pension plan under circumstances resulting (or expected to result) in liability; or (CB) engaged in any plan transaction which would give rise to a liability under Section 4069 or arrangement which provides for post-employment or post-retirement medical or welfare benefits for retired or former employees or beneficiaries or dependents thereof, except pursuant to Section 4212(c) of ERISA.
(c) Except as set forth on Section 3.11(c) of the Seller Disclosure Schedule attached hereto and other than as required under Section 4980B of the Code or other similar applicable LawLaw and for which the beneficiary pays the full premium cost, no Benefit Plan provides for any Business Employee benefits or coverage in the nature of health, life or disability insurance following retirement or other termination of employment or service (other than death benefits when termination occurs upon death).
(v) With respect to each Parent Benefit Plan that is subject to Title IV or Section 302 of ERISA or Section 412 or 430 of the Code (each, a “Parent Title IV Plan”): (A) there does not exist any failure to meet the “minimum funding standard” of Section 412 of the Code or 302 of ERISA (whether or not waived), (B) no such plan is in “at-risk” status for purposes of Section 430 of the Code, (C) the present value of accrued benefits under such Parent Title IV Plan, based upon the actuarial assumptions used for funding purposes in the most recent actuarial report prepared by such Parent Title IV Plan’s actuary with respect to such Parent Title IV Plan, did not, as of its latest valuation date, exceed the then current fair market value of the assets of such Parent Title IV Plan allocable to such accrued benefits, (D) no reportable event within the meaning of Section 4043(c) of ERISA has occurred, (E) all premiums to the PBGC have been timely paid in full, (F) no liability (other than for premiums to the PBGC) under Title IV of ERISA has been or is expected to be incurred by Parent or any of its ERISA Affiliates, and (G) the PBGC has not instituted proceedings to terminate any such Parent Title IV Plan and, to the knowledge of Parent, no circumstances exist which could serve as a basis for the institution of such proceedings.
(vid) Except as set forth on Section 3.2(j)(vi3.11(d) attached hereto, no Benefit Plan exists that could: (i) result in the payment to any Business Employee, director or consultant of the Parent Disclosure LetterBusiness of any money or other property; or (ii) accelerate the payment, neither vesting of or provide any additional rights or benefits (including funding of compensation or benefits through a trust or otherwise) to any Business Employee, director or consultant of the Business, in each case, as a result of the execution and delivery of this Agreement nor or the consummation of the transactions contemplated hereby hereby.
(either e) The execution of this Agreement and the consummation of the transactions contemplated hereby, will not (alone or in conjunction with any other event) will (A) increase any benefits otherwise payable or trigger any other obligation under any Parent Benefit Plan, (Bi) result in any material payment becoming due to any Business Employee or Former Business Employee under any Benefit Plan or otherwise, (ii) materially increase any benefits or compensation otherwise payable to any Business Employee or Former Business Employee under any Benefit Plan or otherwise, or (iii) result in the acceleration of the time of payment, funding payment or vesting of of, or require the material funding of, any such benefits or (C) result in any limitation on the right of Parent or any of its Subsidiaries to amend, merge, terminate or receive a reversion of assets from any Parent Benefit Plan or related trustcompensation.
(viif) No Parent Each Benefit Plan that is a “nonqualified deferred compensation plan” (within the meaning of Section 409A of the Code) complies with respect to the Business Employees in all material respects with the requirements of Section 409A of the Code and the regulations thereunder by its terms and has been operated with respect to the Business Employees in all material respects in accordance with such requirements such that no material additional Taxes are due with respect to any such arrangement under Section 409A of the Code.
(g) The Company is not a party to, nor is otherwise obligated under, any plan, policy, agreement or arrangement that provides for the gross-up or reimbursement of Taxes imposed under Section 409A or 4999 of the Code (or otherwiseany corresponding provisions of state, local 19 or foreign Taxes). No amount or other entitlement that could be received as a result of the transactions contemplated hereby (alone or in conjunction with any other event, including any termination of employment) by any “disqualified individual” (as defined in Section 280G(c) of the Code) with respect to the Company will constitute an “excess parachute payment” (as defined in Section 280G(b)(1) of the Code).
Appears in 1 contract
Samples: Unit Purchase Agreement
Benefit Plans. (a) Except as contemplated in Exhibits 1.7 and 7.10, Schedule 2.17(a) hereto sets forth a correct and complete list of (i) Section 3.2(j)(i) of all the Parent Disclosure Letter contains a truematerial employee benefit plans, complete and correct list of each Benefit Plan sponsored, maintained or contributed by Parent or any of its Subsidiaries, or which Parent or any of its Subsidiaries is obligated to sponsor, maintain or contribute to, or with respect to which Parent or its Subsidiaries otherwise has any liability (the “Parent Benefit Plans”). No Parent Benefit Plan is established or maintained outside of the United States or for the benefit of current or former employees of Parent or any of its Subsidiaries residing outside of the United States.
(ii) Parent has delivered or made available to the Company prior to the date of this Agreement a true, correct and complete copy of each Parent Benefit Plan currently in effect and, with respect thereto, if applicable, (A) all amendments, the current trust (or other funding vehicle) agreements, and the most recent summary plan descriptionscommitments, practices or arrangements of any type providing any compensation or employee benefits (B) 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 Parent Benefit Plan, (C) the most recent determination letter from the IRS (if applicable) for such Parent Benefit Plan and (D) any notice to or from the IRS or any office or representative of the Department of Labor relating to any unresolved compliance issues in respect of such Parent Benefit Plan.
(iii) Except as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on Parent, (A) each Parent Benefit Plan has been maintained and administered in compliance with its terms and with applicable Law, including, but not limited to, ERISA and plans described in Section 3(3) of ERISA) currently maintained by the Code and in each case Company or any of the regulations thereunderSubsidiaries, or to which the Company or any of the Subsidiaries may have any Liability (as hereinafter defined) (contingent or otherwise) (the "Benefit Plans"), (Bii) any collective bargaining agreements covering employees of the Company or any Subsidiary and (iii) any other agreement or arrangement relating to compensation or employee benefits to which the Stockholder or any of its affiliates (other than the Company or any of the Subsidiaries) and any member of senior management of the Company or any of the Subsidiaries are parties.
(b) With respect to each Parent Benefit Plan Plan, the Company has made available to the Purchaser true and complete copies of: (i) any written plan texts and agreements; (ii) the summary plan description currently in effect and all material modifications thereto, if any; (iii) the most recent annual return in the federal Form 5500 series, if applicable; (iv) the most recent annual and periodic accounting of plan assets, if
(c) Except as set forth in Schedule 2.17(c) hereto, with respect to each Benefit Plan: (i) if intended to be qualified qualify under Section 401(a) of the Code, such plan so qualifies, and its trust, if applicable, is exempt from taxation under Section 501(a) of the Code; (ii) such Benefit Plan has been administered and enforced in all material respects in accordance with its terms and all Applicable Laws; (iii) no breach of fiduciary duty or prohibited transaction (within the meaning of Section 4975 of the Code or Section 406 of ERISA) has received a favorable determination or opinion letter as to its qualifications from the IRS or is entitled to rely on an advisory or opinion letter as to its qualifications issued occurred 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 adversely affect which the qualified status of any such plan, (C) neither Parent nor any of its Subsidiaries has engaged in a transaction that has resulted in, or would reasonably be expected to result in, the assessment of a civil penalty upon Parent or any of its Subsidiaries pursuant to Section 409 or 502(i) of ERISA or a tax imposed pursuant to Section 4975 or 4976 of the Code that has not been satisfied in full, (D) there does not now exist, nor, to the knowledge of Parent, do any circumstances exist that would reasonably be expected to result in, any Controlled Group Liability that would be a liability of ParentCompany, any of its the Subsidiaries or any of their respective ERISA Affiliates, (E) all payments required to be made by or with respect to each Parent such Benefit Plan may be liable or otherwise damaged; (including all contributionsiv) no litigation or claim (other than routine claims for benefits or overpayments of benefits), insurance premiums and no governmental administrative proceeding, audit or intercompany charges) with respect to all prior periods have been timely made or paid by Parent or its Subsidiaries in accordance with the provisions of each of the Parent Benefit Plans and applicable Law orinvestigation, 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 Parent in accordance with GAAP and (F) there are no is pending or, to the knowledge of Parentthe Stockholder, threatened claims threatened; (v) no "reportable event" (within the meaning of Section 4043(b) of ERISA) has occurred with respect to which the Company, any of the Subsidiaries or such Benefit Plan may be liable or otherwise damaged; (vi) all contributions, premiums, and other payment obligations and all liabilities for accrued but unfunded obligations for benefits (using actuarial assumptions which are reasonable, both individually and in the aggregate) have been accrued on the Financial Statements in accordance with U.S. generally accepted accounting principles, and all contributions required to be made to such Benefit Plan by the terms of such plan or under Applicable Laws have been made on behalf a timely basis; (vii) the Company or each of any Parent the Subsidiaries, as the case may be, has expressly reserved in itself the right to amend, modify or terminate such Benefit Plan, by or any employee or beneficiary covered under any Parent portion of it, without liability to itself; (viii) no such Benefit Plan or otherwise involving any Parent Benefit Plan or any trusts related thereto (other than routine claims for benefits).
(iv) None of Parent, any of its Subsidiaries requires the Company or any of their respective ERISA Affiliates maintainsthe Subsidiaries to continue to employ any employee, contributes to, director or participates in, or has ever during the past six consultant; and (6ix) years maintained, contributed to, or participated in, or otherwise has any obligation or liability in connection with: (A) a plan with respect to each such Benefit Plan subject to Title IV either Section 412 of the Code or Section 302 of ERISA ERISA, no such Benefit Plan has incurred an accumulated funding deficiency, whether or not waived.
(d) No Benefit Plan is a "multiemployer plan" (within the meaning of Section 3(37) or Section 412 or Section 430 of the Code, (B) a “multiple employer welfare arrangement” (as defined in Section 3(404001(a)(3) of ERISA) or, except as set forth on Schedule 2.17(d), a “"multiple employer plan” " (as defined in within the meaning of Section 4064 of ERISA or Section 413(c) of the Code). Neither the Company nor any of the Subsidiaries has a current or potential liability or obligation, whether direct or indirect, with respect to any multiemployer plan or multiple employer plan for which it is not indemnified.
(e) or a “multiemployer plan” (as defined In the case of each Benefit Plan which provides welfare benefits of the type described in Section 3(373(1) of ERISA:
(i) the reserves therefor on the Annual Financial Statements are adequate to discharge when due the accrued, unfunded liabilities for medical or death benefits with respect to current or former employees, directors or consultants of the Company or any of the Subsidiaries beyond their termination of employment (in addition to coverage mandated by Sections 601-608 of ERISA and 4980B(f) of the Code), or ; and (Cii) any each such plan or arrangement which provides for post-employment or post-retirement medical or welfare death benefits for retired with respect to current or former employees or beneficiaries or dependents thereof, except pursuant to Section 4980B of the Code Company or other applicable Lawany of the Subsidiaries has been administered in all material respects in compliance with Sections 601-608 of ERISA and 4980B(f) of the Code.
(v) With respect to each Parent Benefit Plan that is subject to Title IV or Section 302 of ERISA or Section 412 or 430 of the Code (each, a “Parent Title IV Plan”): (A) there does not exist any failure to meet the “minimum funding standard” of Section 412 of the Code or 302 of ERISA (whether or not waived), (B) no such plan is in “at-risk” status for purposes of Section 430 of the Code, (C) the present value of accrued benefits under such Parent Title IV Plan, based upon the actuarial assumptions used for funding purposes in the most recent actuarial report prepared by such Parent Title IV Plan’s actuary with respect to such Parent Title IV Plan, did not, as of its latest valuation date, exceed the then current fair market value of the assets of such Parent Title IV Plan allocable to such accrued benefits, (D) no reportable event within the meaning of Section 4043(c) of ERISA has occurred, (E) all premiums to the PBGC have been timely paid in full, (F) no liability (other than for premiums to the PBGC) under Title IV of ERISA has been or is expected to be incurred by Parent or any of its ERISA Affiliates, and (G) the PBGC has not instituted proceedings to terminate any such Parent Title IV Plan and, to the knowledge of Parent, no circumstances exist which could serve as a basis for the institution of such proceedings.
(vif) Except as set forth on Section 3.2(j)(vi) of the Parent Disclosure LetterSchedule 2.17(f), neither the execution and delivery entering into of this Agreement nor the consummation of the transactions contemplated hereby by this Agreement (either whether alone or in conjunction connection with any other event) will (A) increase entitle any benefits otherwise payable individual to severance pay or trigger any other obligation under any Parent Benefit Plan, (B) result in any acceleration of accelerate the time of paymentpayment or vesting, funding or vesting increase the amount, of compensation or employee benefits due to any such benefits or individual.
(Cg) result in Schedule 2.17(g) sets forth the amount of the payments that could be made after the Effective Time to any limitation on "disqualified individual" (within the right meaning of Parent Section 280G(c) of the Code) employed by the Company or any of its the Subsidiaries directly or indirectly by the Purchaser, the Company, the Subsidiaries or any person whose relationship to amendany of the foregoing is such as to require attribution of stock ownership between the parties under Section 318(a) of the Code without any part of such payment being treated as an "excess parachute payment" (within the meaning of Section 280G(b) of the Code). Within five business days after the date hereof, merge, terminate or receive a reversion of assets from any Parent Benefit Plan or related trustSchedule 2.17(g) shall be amended to include the information for Messrs. Stuaxx Xxxxxx xxx Skip Newmxx.
(viih) No Parent Benefit Plan provides for To the gross-up or reimbursement of Taxes under Section 409A or 4999 knowledge of the Code Stockholder, no employee of the Company or otherwiseany of the Subsidiaries or Veredus identified on Schedule 2.17(h): (i) is, on the date of this Agreement, subject to any contract, arrangement, policy or understanding that in any way could limit such employee's ability to continue to perform services for such employee's current employer, or (ii) has committed a crime to which Section 411(a) of ERISA applies.
Appears in 1 contract
Benefit Plans. (ia) Section 3.2(j)(iAll “employee benefit plans” (within the meaning of section 3(3) of the Parent Disclosure Letter contains a trueEmployee Retirement Income Security Act of 1974, complete as amended (“ERISA”)) and correct list all stock purchase, stock option, severance, employment, change-in-control, fringe benefit, bonus, incentive, deferred compensation, employee loan, and all other employee benefit plans, agreements, programs, policies or other arrangements, and whether or not subject to ERISA, under which any employee, former employee, director, officer, independent contractor or consultant of each Benefit Plan sponsored, maintained or contributed by Parent or any of its Subsidiaries, or which Parent or any of its Subsidiaries is obligated to sponsor, maintain or contribute to, or with respect to which Parent Company or its Subsidiaries otherwise has any present or future right to benefits or under which the Company or its Subsidiaries has any present or future liability (are referred to herein as the “Parent Benefit Company Plans”). No Parent Benefit .” Each material Company Plan is established or maintained outside identified on Section 3.11(a) of the United States or for the benefit of current or former employees of Parent or any of its Subsidiaries residing outside of the United StatesCompany Disclosure Letter.
(iib) Parent With respect to each material Company Plan, Company has delivered furnished or made available to the Company prior to the date of this Agreement Purchaser a truecurrent, correct accurate and complete copy of each Parent Benefit Plan currently in effect thereof and, with respect theretoto the extent applicable: (i) any related trust agreement or other funding instrument, (ii) the most recent determination or opinion letter of the IRS, if applicable, (Aiii) all amendments, the current trust (or other funding vehicle) agreements, and the most recent summary plan descriptionsdescription, (iv) any other written communications (or a description of any oral communications) by the Company or its Subsidiaries to employees of the Company or its Subsidiaries, including concerning the extent of any post-retirement medical or life insurance benefits provided under a Company Plan, and (v) for the most recent year (A) the Form 5500 and attached schedules, (B) the most recent annual report (Form 5500 series including, where applicable, all schedules audited financial statements and actuarial and accountants’ reports) filed with the Department of Labor and the most recent actuarial report or other financial statement relating to such Parent Benefit Plan, (C) the most recent determination letter from the IRS (if applicable) for such Parent Benefit Plan and (D) any notice to or from the IRS or any office or representative of the Department of Labor relating to any unresolved compliance issues in respect of such Parent Benefit Planactuarial valuation reports.
(iiic) Except as would not reasonably be expected With respect to haveeach Company Plan, except to the extent that the inaccuracy of any of the representations set forth in this Section 3.11, individually or in the aggregate, have not had a Company Material Adverse Effect on Parent, Effect:
(Ai) each Parent Benefit Company Plan has been maintained established and administered in compliance accordance with its terms and in compliance with the applicable Law, including, but not limited to, provisions of ERISA and the Code and in each case other applicable Law, and all contributions required to be made under the regulations thereunder, terms of any Company Plan have been timely made;
(Bii) each Parent Benefit Company Plan intended to be qualified under Section 401(a) of the Code has received a favorable determination or determination, advisory and/or opinion letter letter, as to its qualifications applicable, from the IRS that it is so qualified and, to the knowledge of Company, nothing has occurred, whether by action or is entitled failure to rely on an advisory or opinion act, since the date of such letter as to its qualifications 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 adversely affect cause the loss of such qualified status of such Company Plan;
(iii) there is no Action (including any such planinvestigation, (Caudit or other administrative proceeding) neither Parent nor any by the Department of its Subsidiaries has engaged in a transaction that has resulted in, or would reasonably be expected to result inLabor, the assessment of a civil penalty upon Parent Pension Benefit Guaranty Corporation (the “PBGC”), the IRS or any of its Subsidiaries pursuant other Governmental Entity or by any plan participant or beneficiary pending or threatened relating to Section 409 or 502(i) of ERISA or a tax imposed pursuant to Section 4975 or 4976 of the Code that has not been satisfied in full, (D) there does not now exist, nor, to the knowledge of Parent, do any circumstances exist that would reasonably be expected to result inCompany Plans, any Controlled Group Liability that would be a liability of Parent, any of its Subsidiaries or any of their respective ERISA Affiliates, (E) all payments required to be made by or fiduciaries thereof with respect to each Parent Benefit Plan (including all contributions, insurance premiums their duties to Company Plans or intercompany charges) with respect to all prior periods have been timely made or paid by Parent or its Subsidiaries in accordance with the provisions assets of each any of the Parent 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 Parent in accordance with GAAP and (F) there are no pending or, to the knowledge of Parent, threatened claims by or on behalf of any Parent Benefit Plan, by any employee or beneficiary covered trusts under any Parent Benefit Plan or otherwise involving any Parent Benefit Plan or any trusts related thereto Company Plans (other than routine claims for benefits).) nor are there facts or circumstances that exist that could reasonably give rise to any such Actions. No written or oral communication has been received from the PBGC in respect of any Company 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 plan in connection with the transactions contemplated herein; and
(iv) None no “reportable event” (as such term is defined in Section 4043 of Parent, any of its Subsidiaries or any of their respective ERISA Affiliates maintains, contributes to, or participates in, or has ever during the past six ERISA) that could reasonably be expected to result in liability; no nonexempt “prohibited transaction” (6) years maintained, contributed to, or participated in, or otherwise has any obligation or liability as such term is defined in connection with: (A) a plan subject to Title IV or Section 302 406 of ERISA or and Section 412 or Section 430 4975 of the Code, (B) a ); and no “multiple employer welfare arrangementaccumulated funding deficiency” (as defined in Section 3(40) 302 of ERISA), a “multiple employer plan” (as defined in ERISA and Section 413(c) 412 of the Code) or a failure to timely satisfy any “multiemployer planminimum funding standard” (as defined in within the meaning of Section 3(37) 302 of ERISAERISA or Sections 412 or 430 of the Code), in each case whether or not waived, has occurred with respect to any Company Plan.
(Cd) (i) Each Company Plan pursuant to which the Company or any plan of its Subsidiaries could incur any current or arrangement which provides for projected liability in respect of post-employment or post-retirement medical health, medical, or welfare life insurance benefits for current, former, or retired employees of the Company or former employees or beneficiaries or dependents thereof, any of its Subsidiaries (except pursuant as required to avoid an excise tax under Section 4980B of the Code or other otherwise except as may be required by applicable Law) (“Retiree Medical Benefits”) is identified in Section 3.11(d) of the Company Disclosure Letter, and (ii) the provisions of each Company Plan so identified which provide Retiree Medical Benefits may be terminated at any time by the Company or its Subsidiaries without liability to the Company or its Subsidiaries.
(v) With respect to each Parent Benefit Plan that is subject to Title IV or Section 302 of ERISA or Section 412 or 430 of the Code (each, a “Parent Title IV Plan”): (A) there does not exist any failure to meet the “minimum funding standard” of Section 412 of the Code or 302 of ERISA (whether or not waived), (B) no such plan is in “at-risk” status for purposes of Section 430 of the Code, (C) the present value of accrued benefits under such Parent Title IV Plan, based upon the actuarial assumptions used for funding purposes in the most recent actuarial report prepared by such Parent Title IV Plan’s actuary with respect to such Parent Title IV Plan, did not, as of its latest valuation date, exceed the then current fair market value of the assets of such Parent Title IV Plan allocable to such accrued benefits, (D) no reportable event within the meaning of Section 4043(c) of ERISA has occurred, (E) all premiums to the PBGC have been timely paid in full, (F) no liability (other than for premiums to the PBGC) under Title IV of ERISA has been or is expected to be incurred by Parent or any of its ERISA Affiliates, and (G) the PBGC has not instituted proceedings to terminate any such Parent Title IV Plan and, to the knowledge of Parent, no circumstances exist which could serve as a basis for the institution of such proceedings.
(vie) Except as set forth on Section 3.2(j)(viSchedule 3.11(e) of the Parent Company Disclosure Letter, neither Company 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 a result of the transactions contemplated by this Agreement, and neither the execution and delivery of this Agreement, Company shareholder approval of this Agreement nor the consummation of the transactions contemplated hereby (either alone or in conjunction with any other event) will (A) result in severance pay or any increase in severance pay upon any benefits otherwise payable or trigger any other obligation under any Parent Benefit Plantermination of employment after the date of this Agreement, (B) accelerate the time of payment or vesting or result in any acceleration 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 time of paymentCompany Plans, funding or vesting of any such benefits or (C) result in any limitation on limit or restrict the right of Parent the Company to merge, amend, or terminate any of the Company Plans, (D) cause the Company to record additional compensation expense on its Subsidiaries income statement with respect to amendany outstanding stock option or other equity-based award, merge, terminate or receive a reversion (E) result in the payment of assets from any Parent Benefit Plan or related trust.
(vii) No Parent Benefit Plan provides for the gross-up or reimbursement of Taxes payments which would not be deductible under Section 409A or 4999 280G of the Code or otherwiseCode.
Appears in 1 contract
Samples: Merger Agreement (Iberiabank Corp)
Benefit Plans. (ia) Section 3.2(j)(iSet forth on Schedule 6.19(a) of the Parent Disclosure Letter contains is a true, true and complete and correct list of each material Foreign Plan of each Target Company (each, a “Company Benefit Plan sponsored, maintained or contributed by Parent or any of its Subsidiaries, or which Parent or any of its Subsidiaries is obligated to sponsor, maintain or contribute to, or with respect to which Parent or its Subsidiaries otherwise has any liability (the “Parent Benefit PlansPlan”). No Parent Except as set forth on Schedule 6.19(a), no Target Company maintains or contributes to (or has an obligation to contribute to) any Benefit Plan, whether or not subject to ERISA, which is not a Foreign Plan.
(b) With respect to each material Company Benefit Plan is established or maintained outside of the United States or for the benefit of which covers any current or former employees officer, director, manager, individual consultant or employee (or beneficiary thereof) of Parent or any of its Subsidiaries residing outside of a Target Company, the United States.
(ii) Parent Company has delivered or made available to the Company prior to the date of this Agreement a true, correct HUDA accurate and complete copy of each Parent Benefit Plan currently in effect and, with respect theretocopies, if applicable, of: (Ai) all amendments, the current plan documents and related trust agreements or annuity Contracts (or other funding vehicle) agreementsincluding any amendments thereto), and the most recent summary plan descriptions, written descriptions of any material Company Benefit Plans which are not in writing; (Bii) the most recent annual report and periodic accounting of plan assets; (Form 5500 series including, where applicable, all schedules and actuarial and accountants’ reportsiii) filed with the Department of Labor and the most recent actuarial report or other financial statement relating to such Parent Benefit Plan, (C) the most recent determination letter from the IRS (if applicable) for such Parent Benefit Plan valuation; and (Div) all material communications in the past two (2) years with any notice to Governmental Authority concerning any matter that is still pending or from the IRS or for which any office or representative of the Department of Labor relating to Target Company has any unresolved compliance issues in respect of such Parent Benefit Planoutstanding material Liability.
(iiic) Except as would not reasonably be expected With respect to have, individually or in the aggregate, a Material Adverse Effect on Parent, each Company Benefit Plan: (Ai) each Parent such Company Benefit Plan has been maintained administered and administered enforced in compliance all material respects in accordance with its terms and the requirements of all applicable Laws, and has been maintained, where required, in good standing in all material respects with applicable Law, including, but not limited to, ERISA regulatory authorities and the Code and in each case the regulations thereunder, Governmental Authorities; (Bii) each Parent Benefit Plan intended to be qualified under Section 401(a) no breach of the Code has received a favorable determination or opinion letter as to its qualifications from the IRS or is entitled to rely on an advisory or opinion letter as to its qualifications 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 fiduciary duty that would reasonably be expected result in material Liability to adversely affect the qualified status of any such plan, Target Company has occurred; (Ciii) neither Parent nor any of its Subsidiaries has engaged no Action that would result in a transaction that has resulted in, or would reasonably be expected material Liability to result in, the assessment of a civil penalty upon Parent or any of its Subsidiaries pursuant to Section 409 or 502(i) of ERISA or a tax imposed pursuant to Section 4975 or 4976 of the Code that has not been satisfied in full, (D) there does not now exist, norTarget Companies is pending, to the knowledge of Parent, do any circumstances exist that would reasonably be expected to result in, any Controlled Group Liability that would be a liability of Parent, any of its Subsidiaries or any of their respective ERISA Affiliates, (E) all payments required to be made by or with respect to each Parent Benefit Plan (including all contributions, insurance premiums or intercompany charges) with respect to all prior periods have been timely made or paid by Parent or its Subsidiaries in accordance with the provisions of each Knowledge of the Parent 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 Parent in accordance with GAAP and (F) there are no pending or, to the knowledge of ParentCompany, threatened claims by or on behalf of any Parent Benefit Plan, by any employee or beneficiary covered under any Parent Benefit Plan or otherwise involving any Parent Benefit Plan or any trusts related thereto (other than routine claims for benefitsbenefits arising in the ordinary course of administration); and (iv) all contributions, premiums and other payments (including any special contribution, interest or penalty) required to be made with respect to a Company Benefit Plan have been timely made. No Target Company has incurred any material obligation in connection with the termination of, or withdrawal from, any Company Benefit Plan.
(ivd) None of ParentTo the extent applicable, any of its Subsidiaries or any of their respective ERISA Affiliates 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 plan subject to Title IV or Section 302 of ERISA or Section 412 or Section 430 present value 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 plan” (as defined in Section 3(37) of ERISA), or (C) any plan or arrangement which provides for post-employment or post-retirement medical or welfare benefits for retired or former employees or beneficiaries or dependents thereof, except pursuant to Section 4980B of the Code or other applicable Law.
(v) With respect to each Parent Benefit Plan that is subject to Title IV or Section 302 of ERISA or Section 412 or 430 of the Code (each, a “Parent Title IV Plan”): (A) there does not exist any failure to meet the “minimum funding standard” of Section 412 of the Code or 302 of ERISA accrued benefit liabilities (whether or not waived)vested) under each Company Benefit Plan, (B) no such plan is in “at-risk” status for purposes of Section 430 determined as of the Code, (C) end of the present value applicable Target Company’s most recently ended fiscal year on the basis of accrued benefits under such Parent Title IV Plan, based upon the reasonable actuarial assumptions used for funding purposes in the most recent actuarial report prepared by such Parent Title IV Plan’s actuary with respect to such Parent Title IV Planassumptions, did not, as of its latest valuation date, not materially exceed the then current fair market value of the assets of such Parent Title IV Company Benefit Plan allocable to such accrued benefits, (D) no reportable event within the meaning of Section 4043(c) of ERISA has occurred, (E) all premiums to the PBGC have been timely paid in full, (F) no liability (other than for premiums to the PBGC) under Title IV of ERISA has been or is expected to be incurred by Parent or any of its ERISA Affiliates, and (G) the PBGC has not instituted proceedings to terminate any such Parent Title IV Plan and, to the knowledge of Parent, no circumstances exist which could serve as a basis for the institution of such proceedingsbenefit liabilities.
(vie) Except as set forth on Section 3.2(j)(vi) of the Parent Disclosure Letter, neither the execution and delivery of this Agreement nor the The consummation of the transactions contemplated hereby Transactions and the Ancillary Documents will not: (either alone i) entitle any individual to severance pay, unemployment compensation or in conjunction with any other event) will (A) increase any benefits otherwise payable or trigger any other obligation compensation under any Parent Company Benefit Plan, Plan or under any applicable Law; or (Bii) result in any acceleration of accelerate the time of paymentpayment or vesting, funding or vesting increase the amount of any such benefits compensation due, or (C) result in respect of, any limitation on the right director, manager, employee or independent contractor of Parent or any of its Subsidiaries to amend, merge, terminate or receive a reversion of assets from any Parent Benefit Plan or related trustTarget Company.
(viif) No Parent Benefit Plan Except to the extent required by applicable Law, no Target Company provides for the gross-up material health or reimbursement life insurance 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 Taxes under Section 409A employment or 4999 of the Code or otherwiseservice.
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Samples: Business Combination Agreement (Hudson Acquisition I Corp.)
Benefit Plans. (ia) Section 3.2(j)(iWith respect to the “employee benefit plans” (within the meaning of section 3(3) of the Parent Disclosure Letter contains a true, complete and correct list of each Benefit Plan sponsored, maintained or contributed by Parent or any of its Subsidiaries, or which Parent or any of its Subsidiaries is obligated to sponsor, maintain or contribute to, or with respect ERISA) to which Parent or its Subsidiaries otherwise has had or has any liability present or future liability, including all stock purchase, stock option, phantom stock or other equity-based plan, severance, employment, change-in-control, fringe benefit, bonus, incentive, deferred compensation and all other employee benefit and compensation plans, agreements, programs, policies or other arrangements, whether or not subject to ERISA (including any funding mechanism therefor now in effect), whether formal or informal, written or oral, legally binding or not (the “Parent Benefit Plans”). No Parent Benefit Plan is established or maintained outside of the United States or for the benefit of current or former employees of Parent or any of its Subsidiaries residing outside of the United States.):
(iii) Parent except as, individually or in the aggregate, has delivered or made available to the Company prior to the date of this Agreement a true, correct and complete copy of each Parent Benefit Plan currently in effect and, with respect thereto, if applicable, (A) all amendments, the current trust (or other funding vehicle) agreementsnot had, and the most recent summary plan descriptions, (B) 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 Parent Benefit Plan, (C) the most recent determination letter from the IRS (if applicable) for such Parent Benefit Plan and (D) any notice to or from the IRS or any office or representative of the Department of Labor relating to any unresolved compliance issues in respect of such Parent Benefit Plan.
(iii) Except as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on ParentEffect, (A) each Parent Benefit Plan has been maintained established and administered in compliance accordance with its terms and in compliance with the applicable Law, including, but not limited to, provisions of ERISA and the Code Code, and no reportable event, as defined in each case Section 4043 of ERISA, no prohibited transaction, as described in Section 406 of ERISA or Section 4975 of the regulations thereunderCode, or accumulated funding deficiency, as defined in Section 302 of ERISA and 412 of the Code, has occurred with respect to any Parent Plan;
(Bii) each Parent Benefit Plan intended to be qualified under Section 401(a) of the Code has received a favorable determination or determination, advisory and/or opinion letter letter, as to its qualifications applicable, from the IRS or that it is entitled so qualified and, to rely on an advisory or opinion the Knowledge of Parent, nothing has occurred since the date of such letter as to its qualifications 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 adversely affect cause the loss of such qualified status of any such plan, Parent Plan;
(Ciii) neither Parent nor any of its Subsidiaries has engaged in a transaction that has resulted in, or would reasonably be expected to result in, the assessment of a civil penalty upon Parent or any of its Subsidiaries pursuant to Section 409 or 502(i) of ERISA or a tax imposed pursuant to Section 4975 or 4976 of the Code that has not been satisfied in full, (D) there does not now exist, nor, to the knowledge of Parent, do any circumstances exist that would reasonably be expected to result in, any Controlled Group Liability that would be a liability of Parent, any of its Subsidiaries or any of their respective ERISA Affiliates, (E) all payments required to be made by or with respect to each Parent Benefit Plan (including all contributions, insurance premiums or intercompany charges) with respect to all prior periods have been timely made or paid by Parent or its Subsidiaries in accordance with the provisions of each aggregate accumulated benefit obligations of the Parent 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 Parent in accordance with GAAP and (F) there are no pending or, to the knowledge of Parent, threatened claims by or on behalf of any Parent Benefit Plan, by any employee or beneficiary covered under any Parent Benefit Plan or otherwise involving any Parent Benefit Plan or any trusts related thereto (other than routine claims for benefits).
(iv) None of Parent, any of its Subsidiaries or any of their respective ERISA Affiliates 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 plan subject to Title IV or Section 302 of ERISA or Section 412 or Section 430 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 plan” (as defined in Section 3(37) of ERISA), or (C) any plan or arrangement which provides for post-employment or post-retirement medical or welfare benefits for retired or former employees or beneficiaries or dependents thereof, except pursuant to Section 4980B of the Code or other applicable Law.
(v) With respect to each Parent Benefit Plan that is subject to Title IV or Section 302 of ERISA or Section 412 or 430 of the Code (each, a “Parent Title IV Plan”): (A) there does not exist any failure to meet the “minimum funding standard” of Section 412 of the Code or 302 of ERISA (whether or not waived), (B) no such plan is in “at-risk” status for purposes of Section 430 as of the Code, (C) the present value date of accrued benefits under such Parent Title IV Plan, based upon the actuarial assumptions used for funding purposes in the most recent actuarial report valuation prepared by for such Parent Title IV Plan’s actuary with respect to Company Plans and based on the discount rate and other actuarial assumptions used in such Parent Title IV Plan, did not, as of its latest valuation date, valuation) do not exceed the then current fair market value of the assets of such Parent Title IV Plans in the aggregate (as of the date of such valuation);
(iv) with respect to any Multiemployer Plan allocable to such accrued benefitswhich Parent, its Subsidiaries or any member of their Controlled Group (D) no reportable event defined as any organization which is a member of a controlled group of organizations within the meaning of Section 4043(cCode Sections 414(b), (c), (m) or (o)) has any liability or has contributed (or had at any time contributed or had an obligation to contribute) in the six (6) years prior to the date hereof: (A) none of Parent, its Subsidiaries or any member of their Controlled Group has incurred any withdrawal liability in the past six (6) years under Title IV of ERISA that remains unsatisfied or would be subject to any material withdrawal liability if, as of the Effective Time, Parent, its Subsidiaries or any member of their Controlled Group were to engage in a complete withdrawal (as defined in ERISA section 4203) or partial withdrawal (as defined in ERISA section 4205) from any such Multiemployer Plan and (B) no such Multiemployer Plan is in reorganization or insolvent (as those terms are defined in ERISA sections 4241 and 4245, respectively); and
(v) except as, individually or in the aggregate, has occurrednot had and would not reasonably be expected to have a Material Adverse Effect, (E) all premiums with respect to each Parent Plan that is subject to Title IV of ERISA, Parent has not incurred, nor, to the Knowledge of Parent, does it reasonably expect to incur, any liability to Parent Plan or to the PBGC have been timely paid in full, (F) no liability connection with such Parent Plan (other than for premiums to the PBGC) under Title IV of ERISA has been or is expected to be incurred by Parent or any of its ERISA Affiliates, and (G) the PBGC has not instituted proceedings to terminate any such Parent Title IV Plan and, to the knowledge of Parent, no circumstances exist which could serve as a basis for the institution of such proceedings).
(vib) Except as set forth on Section 3.2(j)(vi) of the Parent Disclosure Letter, neither the The execution and delivery of this Agreement nor and the consummation of the transactions contemplated hereby (will not, either alone or in conjunction combination with any other another event,
(i) will (A) increase any benefits otherwise payable or trigger any other obligation under entitle any Parent Benefit Participant to severance pay under the terms of a Parent Plan, (Bii) result in any acceleration of accelerate the time of payment, funding vesting or vesting funding, or increase the amount of compensation due to any such benefits Parent Participant or (Ciii) cause or result in any a limitation on the right of Parent or any of its Subsidiaries to amend, merge, terminate or receive a reversion of assets from any Parent Benefit Plan or related trust.
(viic) No For purposes of this Agreement, “Parent Benefit Plan provides for the gross-up Participant” shall mean current or reimbursement former director, officer, employee, individual contractor or individual consultant of Taxes under Section 409A Parent or 4999 any of the Code or otherwiseits Subsidiaries.
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Benefit Plans. (ia) Section 3.2(j)(i5.13(a) of the Parent Company Disclosure Letter contains a true, true and complete and correct list of each Benefit Plan sponsoredunder which (i) any current or former employee, maintained director or contributed by Parent or any consultant of its Subsidiaries, or which Parent the Company or any of its Subsidiaries is obligated to sponsor, maintain or contribute to, or with respect to which Parent or its Subsidiaries otherwise has (other than any liability portfolio company of the Funds) (the “Parent Benefit PlansCompany Employees”). No Parent Benefit Plan is established ) has any present or future right to benefits and which are contributed to, sponsored by or maintained outside of by the United States or for the benefit of current or former employees of Parent Company or any of its Subsidiaries residing outside (other than any portfolio company of the United StatesFunds) or (ii) the Company or any of its Subsidiaries (other than any portfolio company of the Funds) has had or has any present or future liability. All such Benefit Plans shall be collectively referred to as the “Company Benefit Plans”.
(iib) Parent With respect to each Company Benefit Plan the Company has delivered or made available to the Company prior to the date of this Agreement Purchaser a truecurrent, correct accurate and complete copy of each Parent Benefit Plan currently in effect (or, to the extent no such copy exists, an accurate description) thereof and, with respect thereto, if to the extent applicable, : (Ai) all amendments, the current any related trust (agreement or other funding vehicle) agreements, and the most recent summary plan descriptions, instrument; (B) 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 Parent Benefit Plan, (Cii) the most recent determination letter from the IRS (letter, if applicable; (iii) any summary plan description; and (iv) for such Parent Benefit Plan the two most recent years (A) the Form 5500 and attached schedules, (B) audited financial statements and (DC) any notice to or from the IRS or any office or representative of the Department of Labor relating to any unresolved compliance issues in respect of such Parent Benefit Planactuarial valuation reports, as applicable.
(iiii) Except as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on Parent, (A) each Parent Each Company Benefit Plan has been maintained established and administered in all material respects in accordance with its terms, and in material compliance with its terms and with the applicable Lawprovisions of ERISA, including, but not limited to, ERISA and the Code and in each case the regulations thereunder, other Applicable Laws; (Bii) each Parent Company Benefit Plan that is intended to be qualified under within the meaning of Section 401(a) of the Code has received a favorable determination or opinion letter as to its qualifications from the IRS or is entitled to rely on an advisory or opinion letter as to its qualifications issued with respect to an IRS approved master and prototype or volume submitter planqualification, and there are no existing circumstances nothing has occurred, whether by action or any events failure to act, that have occurred that would could reasonably be expected to adversely affect cause the qualified status loss of any such plan, qualification; and (Ciii) neither Parent the Company nor any of its Subsidiaries (other than any portfolio company of the Funds) has engaged incurred any current or projected liability in a transaction that has resulted inrespect of post-employment or post-retirement health, medical or would reasonably be expected to result inlife insurance benefits for current, the assessment former or retired employees of a civil penalty upon Parent Company or any of its Subsidiaries Subsidiaries, except as required to avoid an excise tax under Section 4980B of the Code or otherwise except as may be required pursuant to Section 409 or 502(iany other Applicable Law.
(d) No Company Benefit Plan is subject to the funding requirements of Title IV of ERISA or a tax imposed pursuant to Section 4975 or 4976 of the Code that has not been satisfied in full, (D) there does not now exist, nor, to the knowledge of Parent, do any circumstances exist that would reasonably be expected to result in, any Controlled Group Liability that would be a liability of Parent, any of its Subsidiaries or any of their respective ERISA Affiliates, (E) all payments required to be made by or with respect to each Parent Benefit Plan (including all contributions, insurance premiums or intercompany charges) with respect to all prior periods have been timely made or paid by Parent or its Subsidiaries in accordance with the provisions of each of the Parent 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 Parent in accordance with GAAP and (F) there are no pending or, to the knowledge of Parent, threatened claims by or on behalf of any Parent Benefit Plan, by any employee or beneficiary covered under any Parent Benefit Plan or otherwise involving any Parent Benefit Plan or any trusts related thereto (other than routine claims for benefits).
(iv) None of Parent, any of its Subsidiaries or any of their respective ERISA Affiliates 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 plan subject to Title IV or Section 302 of ERISA or Section 412 or Section 430 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 is a “multiemployer plan” (as defined in Section 3(374001(a)(3) of ERISA)) and neither the Company nor any member of its Controlled Group has at any time sponsored or contributed to, or (C) has or had any plan liability or arrangement which provides for post-employment or post-retirement medical or welfare benefits for retired or former employees or beneficiaries or dependents thereofobligation in respect of, except pursuant to Section 4980B of the Code or other applicable Lawany multiemployer plan.
(ve) With respect to each Parent No Company Benefit Plan that is subject to Title IV or Section 302 of ERISA or Section 412 or 430 exists that, as a result of the Code (each, a “Parent Title IV Plan”): (A) there does not exist any failure to meet the “minimum funding standard” of Section 412 of the Code or 302 of ERISA (whether or not waived), (B) no such plan is in “at-risk” status for purposes of Section 430 of the Code, (C) the present value of accrued benefits under such Parent Title IV Plan, based upon the actuarial assumptions used for funding purposes in the most recent actuarial report prepared by such Parent Title IV Plan’s actuary with respect to such Parent Title IV Plan, did not, as of its latest valuation date, exceed the then current fair market value of the assets of such Parent Title IV Plan allocable to such accrued benefits, (D) no reportable event within the meaning of Section 4043(c) of ERISA has occurred, (E) all premiums to the PBGC have been timely paid in full, (F) no liability (other than for premiums to the PBGC) under Title IV of ERISA has been or is expected to be incurred by Parent or any of its ERISA Affiliates, and (G) the PBGC has not instituted proceedings to terminate any such Parent Title IV Plan and, to the knowledge of Parent, no circumstances exist which could serve as a basis for the institution of such proceedings.
(vi) Except as set forth on Section 3.2(j)(vi) of the Parent Disclosure Letter, neither the execution and delivery of this Agreement nor the and consummation of the transactions contemplated hereby (either alone or in conjunction with any other event) hereby, will (Ai) entitle any Company Employee to any increase in severance pay upon any benefits otherwise payable or trigger any other obligation under any Parent Benefit Plantermination of employment after the date of this Agreement, (Bii) accelerate the time of payment or vesting or result in any acceleration payment or funding (through a grantor trust or otherwise) of compensation or benefits under, increase the time of payment, funding amount payable or vesting of any such benefits or (C) result in any limitation on other material obligation pursuant to, any of the Company Benefit Plans, (iii)limit or restrict the right of Parent the Company or any of its Subsidiaries to amend, merge, amend or terminate any of the Company Benefit Plans, (iv) cause the Company or receive a reversion any of assets from its Subsidiaries to record additional compensation expense on its income statement with respect to any Parent outstanding stock option or other equity-based award, or (v) result in payments under any of the Company Benefit Plan or related trustPlans which would not be deductible under Section 280G of the Code.
(viif) No Parent Benefit Plan provides for the gross-up or reimbursement of Taxes under Except as set forth in Section 409A or 4999 5.13(f) of the Code or otherwiseCompany Disclosure Letter, to the Knowledge of the Company, none of the Company Accounts has to date constituted a “plan assets fund” subject to ERISA.
Appears in 1 contract
Benefit Plans. (ia) Section 3.2(j)(i5.9(a) of the Parent Seller Disclosure Letter contains Schedule sets forth a true, true and complete and correct list of each material Business Benefit Plan sponsored, maintained or contributed by Parent or any of its Subsidiaries, or which Parent or any of its Subsidiaries is obligated to sponsor, maintain or contribute to, or with Plan. With respect to which Parent or its Subsidiaries otherwise each Business Benefit Plan, Seller has any liability (the “Parent Benefit Plans”). No Parent Benefit Plan is established or maintained outside of the United States or for the benefit of current or former employees of Parent or any of its Subsidiaries residing outside of the United States.
(ii) Parent has delivered furnished or made available to the Company prior to the date of this Agreement Buyer a truecurrent, correct accurate and complete copy of each Parent Benefit Plan currently in effect thereof and, with respect thereto, if to the extent applicable, : (Ai) all amendments, the current any related trust (agreement or other funding vehicle) agreements, and the most recent summary plan descriptionsinstrument, (B) 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 Parent Benefit Plan, (Cii) the most recent determination letter from or opinion letter of the IRS Internal Revenue Service (if applicablethe “IRS”), (iii) for such Parent Benefit Plan any summary plan description and other equivalent written communications by Seller or its Subsidiaries to their employees concerning the extent of the material benefits provided; (iv) the three most recent actuarial reports and (Dv) any notice to or from the IRS or any office or representative of Form 5500 for the Department of Labor relating to any unresolved compliance issues in respect of such Parent Benefit Plan2019 plan year (and attached schedules) and, when available, the Form 5500 for the 2020 plan year.
(iiib) Except as would not reasonably be expected to havenot, individually or in the aggregate, reasonably be expected to have a Business Material Adverse Effect on ParentEffect, (Ai) each Parent Business Benefit Plan has been maintained established and administered in compliance accordance with its terms and with applicable Law, including, but not limited to, and in compliance with the applicable provisions of ERISA and the Code Code, and (ii) no non-exempt prohibited transaction, as described in each case Section 406 of ERISA or Section 4975 of the regulations thereunderCode, has occurred with respect to any Business Benefit Plan.
(Bc) each Parent All material contributions and other payments required to be made under the terms of any Business Benefit Plan have been timely made.
(d) Each Business Benefit Plan intended to be qualified under Section 401(a) of the Code has received a favorable determination or opinion letter as to its qualifications from the IRS letter, or is entitled to rely based on an advisory or opinion letter as to its qualifications issued with respect to an IRS approved master and a prototype or volume submitter plandocument that has received a favorable advisory and/or opinion letter, and as applicable, from the IRS that it is so qualified and, to the Knowledge of Seller, there are no existing circumstances or any events that have occurred that would reasonably be expected to adversely affect impact the qualified status of such Business Benefit Plan in any such planmaterial respect.
(e) Except as set forth in Section 5.9(e) of Seller Disclosure Schedules, (Ci) no Business Benefit Plan is subject to Title IV of ERISA, Section 302 of ERISA or Section 412 of the Code, (ii) neither Parent Seller nor any of its Subsidiaries has engaged in a transaction that has resulted incontributes, is obligated to contribute, or has any liability (contingent or otherwise) with respect to a Multiemployer Plan or a “multiple employer plan” within the meaning of Section 4063 or 4064 of ERISA which, in either case, would reasonably be expected to result ina Business Benefit Plan, the assessment of a civil penalty upon Parent or and (iii) neither Seller, 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 under ERISA with respect to which any liability remains outstanding thereunder. With respect to each Multiemployer Plan set forth in Section 5.9(e) of Seller Disclosure Schedules, (i) neither Seller nor its Subsidiaries pursuant have incurred any excise tax under Code Section 4971 or surcharge imposed under any rehabilitation plan; and (ii) neither Seller nor its Subsidiaries have been notified in writing by any such Multiemployer Plan that such multiemployer plan is in “critical” or “endangered” status within the meaning of Code Section 432, is currently insolvent or projected to Section 409 or 502(i) be insolvent within the meaning of 4245 of ERISA or a tax imposed pursuant that such Multiemployer Plan intends to terminate or has been terminated under Section 4975 or 4976 4041A of ERISA.
(f) Except as set forth in Section 5.9(f) of Seller Disclosure Schedule, neither Seller nor any of its ERISA Affiliates has incurred any liability with respect to the Code that has not been satisfied in fullBusiness which remains outstanding under Title IV of ERISA, (D) there does not now existincluding with respect to any Controlled Group Plan, norand, to the knowledge Knowledge of ParentSeller, do any circumstances exist no event or condition has occurred or exists that would reasonably be expected to result in, in any Controlled Group Liability that would be a such liability of Parent, any of its Subsidiaries or any of their respective ERISA Affiliates, (E) all payments required to be made by or with respect to each Parent Benefit Plan (including all contributions, insurance premiums or intercompany charges) with respect to all prior periods have been timely made or paid by Parent or its Subsidiaries in accordance with the provisions of each of the Parent 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 Parent in accordance with GAAP and (F) there are no pending or, to the knowledge of Parent, threatened claims by or on behalf of any Parent Benefit Plan, by any employee or beneficiary covered under any Parent Benefit Plan or otherwise involving any Parent Benefit Plan or any trusts related thereto (other than routine claims for benefits)Business.
(ivg) None of Parent, With respect to any of its Subsidiaries or any of their respective ERISA Affiliates 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 plan Employee Benefit Plan subject to Title IV of ERISA or Section 302 of ERISA or Section 412 or Section 430 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 plan” (as defined in Section 3(37) of ERISA), or (C) any plan or arrangement which provides for post-employment or post-retirement medical or welfare benefits for retired or former employees or beneficiaries or dependents thereof, except pursuant to Section 4980B 4971 of the Code for which Seller or other applicable Law.
any of its ERISA Affiliates has any liability or contributes to, except as would not reasonably be expected to result in material liability to the Business: (vi) With respect all premiums to each Parent the Pension Benefit Plan that is subject Guaranty Corporation (“PBGC”) have been timely paid in full; (ii) no failure to Title IV or Section satisfy the “minimum funding standards” within the meaning of Sections 302 and 303 of ERISA or Section and Sections 412 or and 430 of the Code (each, a “Parent Title IV Plan”): (A) there does not exist any failure to meet the “minimum funding standard” of Section 412 of the Code or 302 of ERISA (whether or not waived), ) has occurred; (Biii) no all contributions required to be made to any such plan have been timely made; (iv) the PBGC has not instituted an Action to terminate any such plan and there has been no determination that any such plan is, or is expected to be, in “at-at risk” status for purposes (within the meaning of Section 430 303 of the Code, ERISA); (C) the present value of accrued benefits under such Parent Title IV Plan, based upon the actuarial assumptions used for funding purposes in the most recent actuarial report prepared by such Parent Title IV Plan’s actuary with respect to such Parent Title IV Plan, did not, as of its latest valuation date, exceed the then current fair market value of the assets of such Parent Title IV Plan allocable to such accrued benefits, (Dv) 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, (E) all premiums to the PBGC have been timely paid in full, (F) no liability (other than for premiums to the PBGC) under Title IV of ERISA has been or is expected to be incurred by Parent or any of its ERISA Affiliates, and (G) the PBGC has not instituted proceedings to terminate any such Parent Title IV Plan and, to the knowledge of Parent, no circumstances exist which could serve as a basis for the institution of such proceedings.
(vi) Except as set forth on Section 3.2(j)(vi) of the Parent Disclosure Letter, neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby by this Agreement will not result in the occurrence of any such reportable event; (either vi) an election for funding relief has not been made under Section 430(c)(2)(D) of the Code or Section 303(c)(2)(D) of ERISA; and (vii) no substantial cessations of operations of a facility under Section 4062(e) has occurred.
(h) Except as set forth in Section 5.9(h) of Seller Disclosure Schedule, neither Seller nor any of its Subsidiaries has any liability in respect of post-retirement or post- termination health or life insurance benefits for retired, former or current employees of the Business, except as may be required by COBRA.
(i) Except as set forth in Section 5.9(i) of Seller Disclosure Schedule, the execution, delivery and performance of this Agreement or the consummation of the Transactions will not (alone or in conjunction combination with any other event) will ): (A) increase entitle any benefits otherwise payable current or trigger former employee, consultant, officer or director of the Business to any other obligation under any Parent Benefit Plan, severance pay or similar payment; (B) result in the payment of any acceleration of benefit, accelerate the time of payment, funding or vesting of any benefit, or increase the amount of compensation or benefits due to any such benefits employee, consultant, officer or director; or (C) result in any limitation on payment that would reasonably be expected to constitute an “excess parachute payment” within the right meaning of Parent or Section 280G of the Code. Seller is not obligated to compensate any of its Subsidiaries Person for excise taxes payable pursuant to amend, merge, terminate or receive a reversion of assets from any Parent Benefit Plan or related trust.
(vii) No Parent Benefit Plan provides for the gross-up or reimbursement of Taxes under Section 409A or 4999 of the Code.
(j) Except as set forth in Section 5.9(j) of Seller Disclosure Schedule, no Business Benefit Plan is maintained outside of, or for the benefit of any individuals outside of, the United States and Canada.
(k) Except as would not, individually or in the aggregate, reasonably be expected to have a Business Material Adverse Effect, there are no Actions, audits or inquiries pending, or, to the Knowledge of Seller, threatened (other than routine claims for benefits) against any, or with respect to, any Business Benefit Plan or fiduciary thereto or against the assets of any such Business Benefit Plan.
(l) Each Business Benefit Plan that constitutes a “non-qualified deferred compensation plan” subject to Code Section 409A complies in all material respects with Code Section 409A with respect to its form and operation, no amount under any such Business Benefit Plan is or otherwisehas been subject to the interest and additional tax set forth under Code Section 409A(a)(1)(B), and there is no obligation to reimburse or otherwise “gross-up” any Person for the interest or additional tax set forth under Code Section 409A(a)(1)(B).
Appears in 1 contract
Benefit Plans. (ia) Each Company Plan and Employee Agreement is in writing. Section 3.2(j)(i) 4.17 of the Parent Disclosure Letter contains Schedule includes a true, complete and correct list of all Company Plans and Employee Agreements, and the Company has provided or made available to Parent a complete copy of each Benefit Company Plan sponsoredand Employee Agreement, maintained and all amendments thereto, as well as, if applicable, a copy of each trust or contributed by Parent other funding arrangement, each summary plan description and summary of material modifications, and the most recent application for determination letter submitted to the IRS and the most recent determination or any of its Subsidiaries, or which Parent or any of its Subsidiaries is obligated to sponsor, maintain or contribute to, or with respect to which Parent or its Subsidiaries otherwise has any liability (opinion letter received from the “Parent Benefit Plans”)IRS. No Parent Benefit Plan is established or maintained outside of the United States or for the benefit of current or former employees of Parent or any of its Subsidiaries residing outside of the United States.
(ii) Parent The Company has delivered or made available to the Parent true, complete and correct copies of all Form 5500 Series annual reports for each Company prior Plan, together with all schedules, attachments, and related opinions, all related agreements, insurance Contracts and other agreements which implement each such Company Plan, and copies of any correspondence from or to the date of this Agreement a trueIRS, correct and complete copy of each Parent Benefit Plan currently in effect and, with respect thereto, if applicable, (A) all amendments, the current trust (or other funding vehicle) agreements, and the most recent summary plan descriptions, (B) 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 Governmental Authority relating to such Parent Benefit Planan investigation, (C) the most recent determination letter audit or penalty assessment with respect to any Company Plan or relating to requested relief from the IRS (if applicable) for such Parent Benefit Plan and (D) any notice to Liability or from the IRS or any office or representative of the Department of Labor penalty relating to any unresolved compliance issues in respect of such Parent Benefit Company Plan.
(iiib) Except as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on Parent, (A) The Company and each Parent Benefit Plan ERISA Affiliate is and has been maintained and administered in compliance in all material respects with its obligations under the terms of each Company Plan and Employee Agreement.
(c) Each Company Plan and each funding vehicle related to such Company Plan is currently in compliance in all material respects with, and has been administered and operated in compliance in all material respects with, its terms and with all applicable Lawstatutes, includingorders, but not limited torules and regulations, ERISA and the Code and whether as a matter of substantive law or in each case the regulations thereunder, (B) each Parent Benefit order to maintain any intended Tax Qualification. Each Company Plan which is intended to be a “qualified under plan” as described in Section 401(a) of the Code has received been determined by the IRS to so qualify pursuant to a favorable determination or prototype opinion letter as to its qualifications from the IRS or is entitled to rely on an advisory or opinion letter as to its qualifications issued with respect to an IRS approved master and prototype or volume submitter planletter, and there are no existing circumstances or any events facts that have occurred that would could reasonably be expected to adversely affect the qualified status of any such plan, (C) neither Parent nor any of its Subsidiaries has engaged in a transaction that has resulted in, or would reasonably be expected to result in, the assessment of a civil penalty upon Parent or any of its Subsidiaries pursuant to Section 409 or 502(i) of ERISA or a tax imposed pursuant to Section 4975 or 4976 of the Code that has not been satisfied in full, (D) there does not now exist, nor, to the knowledge of Parent, do any circumstances exist that would reasonably be expected to result in, any Controlled Group Liability that would be a liability of Parent, any of its Subsidiaries or any of their respective ERISA Affiliates, (E) all payments required to be made by or with respect to each Parent Benefit Plan (including all contributions, insurance premiums or intercompany charges) with respect to all prior periods have been timely made or paid by Parent or its Subsidiaries in accordance with the provisions of each of the Parent 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 Parent in accordance with GAAP and (F) there are no pending or, to the knowledge of Parent, threatened claims by or on behalf of any Parent Benefit Plan, by any employee or beneficiary covered under any Parent Benefit Plan or otherwise involving any Parent Benefit Plan or any trusts related thereto (other than routine claims for benefits)qualification.
(ivd) None of Parent, any of Neither the Company nor its Subsidiaries or any of their respective ERISA Affiliates maintainsmaintain, contributes to, sponsor or participates in, or has ever during the past six contribute to any single employer plan (6as such term is defined in Section 4001(b) years maintained, contributed to, or participated in, or otherwise has any obligation or liability in connection with: (Aof ERISA) a plan subject to Title IV or Section 302 of ERISA or Section 412 or Section 430 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 any “multiemployer plan” (as such term is defined in Section 3(37) of ERISA), nor have they maintained or contributed to any such plan within the six (C6) year period prior to the date hereof or incurred any Liability, including, withdrawal Liability, with respect to any such plan that remains unsatisfied. No Company Plan is funded by, associated with or arrangement related to a “voluntary employees’ beneficiary association” within the meaning of Section 501(c)(9) of the Code. The Company has made or will accrue prior to the Closing Date all payments and contributions (including insurance premiums) due and payable as of the Closing Date to each Company Plan as required to be made under the terms of each such Company Plan.
(e) With respect to all Company Plans and related trusts, there are no “prohibited transactions,” as that term is defined in Section 406 of ERISA or Section 4975 of the Code, that have occurred which provides could subject the Company or any Company Subsidiary , or any Company Plan or related trust to any Tax or penalty on prohibited transactions imposed by Section 501(i) of ERISA or Section 4975 of the Code.
(f) There are no Actions (other than routine claims for post-employment benefits by employees of the Company or the Company Subsidiaries, beneficiaries or dependents of such employees arising in the normal course of operation of a Company Plan) pending, or to the Knowledge of the Company, threatened, with respect to any Company Plan or any fiduciary or sponsor of a Company Plan with respect to their duties under such Company Plan or the assets of any trust under any such Company Plan.
(g) The Company and each Company Subsidiary has complied in all material respects with the health care continuation requirements of Section 601, et. seq. of ERISA, Section 4980B of the Code and similar State welfare plan continuation coverage laws with respect to employees and their spouses, former spouses and dependents.
(h) Neither the Company nor any Company Subsidiary has any obligations under any Company Plan or Employee Agreement to provide post-retirement medical benefits to any employee or welfare benefits any former employee of the Company or any Company Subsidiary other than statutory Liability for retired or former employees or beneficiaries or dependents thereof, except pursuant to providing group health plan continuation coverage under Part 6 of Title I of ERISA and Section 4980B of the Code or other applicable Lawstate law.
(v) With respect to each Parent Benefit Plan that is subject to Title IV or Section 302 of ERISA or Section 412 or 430 of the Code (each, a “Parent Title IV Plan”): (A) there does not exist any failure to meet the “minimum funding standard” of Section 412 of the Code or 302 of ERISA (whether or not waived), (B) no such plan is in “at-risk” status for purposes of Section 430 of the Code, (C) the present value of accrued benefits under such Parent Title IV Plan, based upon the actuarial assumptions used for funding purposes in the most recent actuarial report prepared by such Parent Title IV Plan’s actuary with respect to such Parent Title IV Plan, did not, as of its latest valuation date, exceed the then current fair market value of the assets of such Parent Title IV Plan allocable to such accrued benefits, (D) no reportable event within the meaning of Section 4043(c) of ERISA has occurred, (E) all premiums to the PBGC have been timely paid in full, (F) no liability (other than for premiums to the PBGC) under Title IV of ERISA has been or is expected to be incurred by Parent or any of its ERISA Affiliates, and (G) the PBGC has not instituted proceedings to terminate any such Parent Title IV Plan and, to the knowledge of Parent, no circumstances exist which could serve as a basis for the institution of such proceedings.
(vii) Except as set forth on Section 3.2(j)(vi4.17(i) of the Parent Disclosure LetterSchedule, neither the negotiation or execution and delivery of this Agreement Agreement, nor the consummation of the transactions contemplated hereby (by this Agreement will, either alone or in conjunction combination with another event, (i) entitle any current or former employee or officer of the Company or any ERISA Affiliate to severance, retention, bonus or other similar payment or unemployment compensation or any other eventpayment or additional right, or (ii) will accelerate the time of payment or vesting, or increase the amount of compensation due any such employee or officer, except in the case of (Ai) increase or (ii) as expressly provided in this Agreement.
(j) Except as set forth on Section 4.17(j) of the Disclosure Schedule, no Company Plan, excluding any benefits otherwise payable short-term disability, non-qualified deferred compensation or trigger any other obligation health flexible spending account plan or program, is self funded, self-insured or funded through the general assets of the Company or an ERISA Affiliate. Except as set forth on Section 4.17(j) of the Disclosure Schedule, no Company Plan which is an employee welfare benefit plan under any Parent Benefit Section 3(l) of ERISA is funded by a trust or is subject to Section 419 or 419A of the Code.
(k) With respect to each Company Plan, (Bi) result in any acceleration there are no restrictions on the ability of the time sponsor of paymenteach Company Plan to amend or terminate any Company Plan, funding or vesting of any such benefits or (C) result the Company has expressly reserved in any limitation on itself the right of Parent or any of its Subsidiaries to amend, mergemodify or terminate any such Company Plan, terminate or receive a reversion any portion of assets from it, and has made no representations (whether orally or in writing) which would conflict with or contradict such reservation or right; and (ii) the Company has satisfied any Parent Benefit and all bond coverage requirements of ERISA. Each Company Plan may be transferred by the Company or related trustERISA Affiliate to Parent.
(viil) No Parent Benefit amounts paid or payable under a Company Plan provides for the gross-up or reimbursement of Taxes under Employee Agreement to any “disqualified individual,” as defined in Section 409A or 4999 280G(c) of the Code Code, with respect to the Company will fail to be deductible for federal income Tax purposes by virtue of Section 162(a)(1), 162(m) or otherwise280G of the Code.
Appears in 1 contract
Samples: Merger Agreement (Vmware, Inc.)
Benefit Plans. (i) Section 3.2(j)(i3.1(j)(i) of the Parent Company Disclosure Letter contains a true, complete and correct list of each material Benefit Plan sponsored, maintained or contributed by Parent the Company or any of its Subsidiaries, or which Parent the Company or any of its Subsidiaries is obligated to sponsor, maintain or contribute to, other than any plan or with respect program maintained by a Governmental Entity to which Parent the Company or its Subsidiaries otherwise has any liability is required to contribute to pursuant to applicable Law (the “Parent Company Benefit Plans”). No Parent Company Benefit Plan is established or maintained outside of the United States or for the benefit of current or former employees of Parent the Company or any of its Subsidiaries residing outside of the United States.
(ii) Parent The Company has delivered or made available to the Company Parent prior to the date of this Agreement a true, correct and complete copy of each Parent Company Benefit Plan currently in effect and, with respect thereto, if applicable, (A) all amendments, the current trust (or other funding vehicle) agreements, and the most recent summary plan descriptions, (B) 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 Parent Company Benefit Plan, (C) the most recent determination letter from the IRS (if applicable) for such Parent Company Benefit Plan and (D) any notice to or from the IRS or any office or representative of the Department of Labor relating to any unresolved compliance issues in respect of such Parent Company Benefit Plan.
(iii) Except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect on ParentEffect, (A) each Parent Company 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 thereunder, (B) each Parent Company Benefit Plan intended to be qualified under Section 401(a) of the Code has received a favorable determination or opinion letter as to its qualifications from the IRS or is entitled to rely on an advisory or opinion letter as to its qualifications 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 adversely affect the qualified status of any such plan, (C) neither Parent the Company nor any of its Subsidiaries has engaged in a transaction that has resulted in, or would reasonably be expected to result in, the assessment of a civil penalty upon Parent the Company or any of its Subsidiaries pursuant to Section 409 or 502(i) of ERISA or a tax imposed pursuant to Section 4975 or 4976 of the Code that has not been satisfied in full, (D) there does not now exist, nor, to the knowledge of Parentthe Company, do any circumstances exist that would reasonably be expected to result in, any Controlled Group Liability that would be a liability of Parentthe Company, any of its Subsidiaries or any of their respective ERISA Affiliates, (E) all payments required to be made by or with respect to each Parent Company Benefit Plan (including all contributions, insurance premiums or intercompany charges) with respect to all prior periods have been timely made or paid by Parent the Company or its Subsidiaries in accordance with the provisions of each of the Parent Company 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 Parent the Company in accordance with GAAP and (F) there are no pending or, to the knowledge of Parentthe Company, threatened claims by or on behalf of any Parent Company Benefit Plan, by any employee or beneficiary covered under any Parent Company Benefit Plan or otherwise involving any Parent Company Benefit Plan or any trusts related thereto (other than routine claims for benefits).
(iv) None of Parentthe Company, any of its Subsidiaries or any of their respective ERISA Affiliates 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 plan subject to Title IV or Section 302 of ERISA or Section 412 or Section 430 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 plan” (as defined in Section 3(37) of ERISA), or (C) any plan or arrangement which provides for post-employment or post-retirement medical or welfare benefits for retired or former employees or beneficiaries or dependents thereof, except pursuant to Section 4980B of the Code or other applicable Law.
(v) With respect to each Parent Benefit Plan that is subject to Title IV or Section 302 of ERISA or Section 412 or 430 of the Code (each, a “Parent Title IV Plan”): (A) there does not exist any failure to meet the “minimum funding standard” of Section 412 of the Code or 302 of ERISA (whether or not waived), (B) no such plan is in “at-risk” status for purposes of Section 430 of the Code, (C) the present value of accrued benefits under such Parent Title IV Plan, based upon the actuarial assumptions used for funding purposes in the most recent actuarial report prepared by such Parent Title IV Plan’s actuary with respect to such Parent Title IV Plan, did not, as of its latest valuation date, exceed the then current fair market value of the assets of such Parent Title IV Plan allocable to such accrued benefits, (D) no reportable event within the meaning of Section 4043(c) of ERISA has occurred, (E) all premiums to the PBGC have been timely paid in full, (F) no liability (other than for premiums to the PBGC) under Title IV of ERISA has been or is expected to be incurred by Parent or any of its ERISA Affiliates, and (G) the PBGC has not instituted proceedings to terminate any such Parent Title IV Plan and, to the knowledge of Parent, no circumstances exist which could serve as a basis for the institution of such proceedings.
(vi) Except as set forth on Section 3.2(j)(vi3.1(j)(v) of the Parent Company Disclosure Letter, 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, employee or other service provider of the Company or any of its Subsidiaries under any Company Benefit Plan or otherwise, (B) increase any benefits otherwise payable or trigger any other obligation under any Parent Company Benefit Plan, (BC) result in any acceleration of the time of payment, funding or vesting of any such benefits or (CD) result in any limitation on the right of Parent the Company or any of its Subsidiaries to amend, merge, terminate or receive a reversion of assets from any Parent Company Benefit Plan or related trust.
(viivi) No Parent Company Benefit Plan provides for the gross-up or reimbursement of Taxes under Section 409A or 4999 of the Code or otherwise.
Appears in 1 contract
Benefit Plans. (a) Schedule 3.14(a) of the Seller Disclosure Schedule sets forth a list of (i) Section 3.2(j)(iall material employee benefit plans and (ii) of the Parent Disclosure Letter contains a trueall other material employment, complete severance pay, salary continuation, bonus, incentive, stock option, post-employment and correct list of each Benefit Plan sponsoredretirement benefits, maintained or contributed by Parent or any of its Subsidiariespension, profit sharing, retention, deferred compensation, vacation, and fringe benefits plans, contracts, programs, funds, arrangements, or which Parent or policies of any of its Subsidiaries is obligated to sponsorkind; in each case, maintain or contribute to, or with respect to which Parent or its Subsidiaries otherwise has any liability (the “Parent Benefit Plans”). No Parent Benefit Plan is established that are sponsored or maintained outside of by the United States Seller or for the benefit of Company and in which current Company Employees or former employees of Parent the Company participate, in each case excluding any statutorily required employee benefit, welfare, severance or any of its Subsidiaries residing outside retirement plans (all of the United Statesabove being hereinafter individually or collectively referred to as a “Benefit Plan” or the “Benefit Plans,” respectively).
(iib) Parent has delivered or made available to A copy of each of the Company prior to Benefit Plans, in each case as in effect on the date of this Agreement a trueAgreement, correct and complete copy of each Parent Benefit Plan currently in effect and, with respect thereto, if applicable, (A) all amendments, the current trust (or other funding vehicle) agreements, and the most recent summary plan descriptions, (B) 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 has been made available to such Parent Benefit Plan, (C) the most recent determination letter from the IRS (if applicable) for such Parent Benefit Plan and (D) any notice to or from the IRS or any office or representative of the Department of Labor relating to any unresolved compliance issues in respect of such Parent Benefit PlanBuyer.
(iiic) Except as Each Benefit Plan complies, and has been administered in compliance with all requirements of Applicable Law, except where the failure to so comply would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on Parent, (A) each Parent 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 thereunder, (B) each Parent Benefit Plan intended to be qualified under Section 401(a) of the Code has received a favorable determination or opinion letter as to its qualifications from the IRS or is entitled to rely on an advisory or opinion letter as to its qualifications issued Effect. No events have occurred with respect to an IRS approved master and prototype any Benefit Plan that could result in payment by or volume submitter planassessment against the Company of any material liability or excise taxes under Applicable Laws, and there are no existing circumstances or any events that have occurred that except as would not reasonably be expected to adversely affect have a Material Adverse Effect.
(d) The Company Employees’ and the qualified status Agents’ severance indemnity (“trattamento di fine rapporto” or “TFR” or equivalent) has been regularly set aside or paid in accordance with Applicable Law and, if set aside, has been properly recorded as a provision in the Financial Statements in accordance with US GAAP. Accruals of any such plandeferred compensation, holidays and authorized leaves accrued but not enjoyed or unpaid bonuses, where due, have been regularly set aside or paid in accordance with Applicable Law and, if set aside, they have been properly recorded as a provision in the Financial Statements in accordance with US GAAP.
(Ce) neither Parent nor any of its Subsidiaries The Company has engaged filed or caused to be filed, within the times and in a transaction that has resulted inthe manner prescribed by Applicable Law, or would reasonably be expected to result in, the assessment of a civil penalty upon Parent or any of its Subsidiaries pursuant to Section 409 or 502(i) of ERISA or a tax imposed pursuant to Section 4975 or 4976 of the Code that has not been satisfied in full, (D) there does not now exist, nor, to the knowledge of Parent, do any circumstances exist that would reasonably be expected to result in, any Controlled Group Liability that would be a liability of Parent, any of its Subsidiaries or any of their respective ERISA Affiliates, (E) all payments social security returns and social security reports which are required to be made by or with respect to each Parent Benefit Plan (including all contributions, insurance premiums or intercompany charges) with respect to all prior periods have been timely made or paid by Parent or its Subsidiaries filed in accordance with the provisions of each of the Parent Benefit Plans and applicable Law or, relation to the extent not required Company Employees and the Agents. Such returns and reports accurately reflect in all material respects all social security liabilities pertaining to the Company Employees and the Agents for the periods covered SPI-900029917v22 27 thereby. All social security contributions due by the Company in relation to the Company Employees and the Agents up to the Balance Sheet Date has been paid or adequately recorded as a provision in the Financial Statements; all social security contributions owing in relation to the Company Employees and the Agents after the Balance Sheet Date and until the Closing Date will be made paid or paid on or before the date hereof, have been reflected on adequately recorded as a provision in the books and records of Parent in accordance the Company.
(f) The Company does not contribute to and has no obligation to contribute to, or, to the Knowledge of Seller, otherwise has any material liability with GAAP and respect to, any multiemployer plan.
(Fg) Except as would not reasonably be expected to have a Material Adverse Effect, there are is no pending or, to the knowledge Knowledge of ParentSeller, threatened claims by assessment, complaint, proceeding or on behalf investigation of any Parent Benefit Plan, by kind in any employee court or beneficiary covered under before any Parent Governmental Authority with respect to any Benefit Plan or otherwise involving any Parent Benefit Plan or any trusts related thereto (other than routine claims for benefits).
(iv) None of Parent, any of its Subsidiaries or any of their respective ERISA Affiliates 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 plan subject to Title IV or Section 302 of ERISA or Section 412 or Section 430 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 plan” (as defined in Section 3(37) of ERISA), or (C) any plan or arrangement which provides for post-employment or post-retirement medical or welfare benefits for retired or former employees or beneficiaries or dependents thereof, except pursuant to Section 4980B of the Code or other applicable Law.
(v) With respect to each Parent Benefit Plan that is subject to Title IV or Section 302 of ERISA or Section 412 or 430 of the Code (each, a “Parent Title IV Plan”): (A) there does not exist any failure to meet the “minimum funding standard” of Section 412 of the Code or 302 of ERISA (whether or not waived), (B) no such plan is in “at-risk” status for purposes of Section 430 of the Code, (C) the present value of accrued benefits under such Parent Title IV Plan, based upon the actuarial assumptions used for funding purposes in the most recent actuarial report prepared by such Parent Title IV Plan’s actuary with respect to such Parent Title IV Plan, did not, as of its latest valuation date, exceed the then current fair market value of the assets of such Parent Title IV Plan allocable to such accrued benefits, (D) no reportable event within the meaning of Section 4043(c) of ERISA has occurred, (E) all premiums to the PBGC have been timely paid in full, (F) no liability (other than for premiums to the PBGC) under Title IV of ERISA has been or is expected to be incurred by Parent or any of its ERISA Affiliates, and (G) the PBGC has not instituted proceedings to terminate any such Parent Title IV Plan and, to the knowledge of Parent, no circumstances exist which could serve as a basis for the institution of such proceedings.
(vi) Except as set forth on Section 3.2(j)(vi) of the Parent Disclosure Letter, 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) increase any benefits otherwise payable or trigger any other obligation under any Parent Benefit Plan, (B) result in any acceleration of the time of payment, funding or vesting of any such benefits or (C) result in any limitation on the right of Parent or any of its Subsidiaries to amend, merge, terminate or receive a reversion of assets from any Parent Benefit Plan or related trust.
(vii) No Parent Benefit Plan provides for the gross-up or reimbursement of Taxes under Section 409A or 4999 of the Code or otherwise.
Appears in 1 contract
Samples: Quota Purchase Agreement (Circor International Inc)
Benefit Plans. (i) Disclosure Schedule 4.2(j)(i) sets forth to the Knowledge of Company, a true and complete list of all “employee benefit plans”, as defined in Section 3.2(j)(i3(3) of ERISA, whether or not subject to ERISA and all stock purchase, stock option, severance, employment, change-in-control, educational assistance, adoption assistance, fringe benefit, collective bargaining, bonus, retention, incentive, deferred compensation and other employee benefit plans, agreements, programs, policies or other arrangements, whether or not subject to ERISA, whether formal or informal, oral or written, legally binding or not (all the Parent Disclosure Letter contains a trueforegoing being herein called “Benefit Plans”), complete under which any employee, director, independent contractor or former employee, director or independent contractor of Company, or any spouse or dependent of any such employee or director, has any present or future right to benefits, and correct list of each Benefit Plan which is (or was prior to its termination) sponsored, maintained or contributed to by Parent Company or any of its Subsidiaries, or under which Parent or any of its Subsidiaries is obligated to sponsor, maintain or contribute to, or with respect to which Parent or its Subsidiaries otherwise Company has any present or future liability (the “Parent Company Benefit Plans”). No Parent Benefit Plan is established or maintained outside of the United States or for the benefit of current or former employees of Parent or any of its Subsidiaries residing outside of the United States.
(ii) Parent , Company has delivered provided or made available to the Company prior to the date of this Agreement Parent a true, correct and complete copy of each Parent Benefit Plan currently in effect and, with respect thereto, if applicable, (A) such Company Benefit Plan and all amendmentsrelated amendments thereto, the current (B) each trust (agreement, summaries, employee booklets or handbooks, annuity contracts, insurance policies or any other funding vehicleinstruments (“Funding Arrangements”) agreementsrelating to such Company Benefit Plan and all related amendments thereto, and (C) the most recent summary plan descriptionsdescription for each Company Benefit Plan for which a summary plan description is required by ERISA, for Benefit Plans not subject to ERISA or that are unwritten, any relevant summaries, (BD) the most recent annual report (Form 5500 series including5500) filed with the IRS and, where applicable, all schedules and actuarial and accountants’ reportsthe related audited financial statements thereof, (E) filed any contracts with the Department of Labor and the most recent actuarial report or other financial statement relating independent contractors (including actuaries, investment managers, etc.) that relate to such Parent any Company Benefit Plan, and (CF) the most recent determination letter from (or equivalent) issued by the IRS (if applicable) for such Parent with respect to any Company Benefit Plan and (Dqualified under Section 401(a) any notice to or from the IRS or any office or representative of the Department of Labor relating Code. There are no unwritten amendments to any unresolved compliance issues in respect of such Parent Company Benefit Plan.
(iiiii) Except as would not reasonably be expected to haveTo the Knowledge of Company, individually or in the aggregate, a Material Adverse Effect on Parent, (A) each Parent Company 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 thereunder, (B) each Parent Benefit Plan intended that is represented to be qualified under Section 401(a) of the Code either has received a favorable determination or opinion letter as that covers all existing amendments up to its qualifications from the IRS and including EGTRRA or is entitled to rely on an advisory or opinion letter as to its qualifications issued with respect to an IRS approved master and adoption of a prototype or volume submitter planplan for which a favorable opinion letter has been issued up to and including EGTRRA, on which Company is entitled to reliance equivalent to a determination letter, and, in either case, Company has no obligation to adopt any amendments for which the remedial amendment period under Section 401(b) of the Code has expired, and there are no existing Company is not aware of any circumstances or any events that have occurred that would reasonably be expected likely to adversely affect the qualified status result in revocation of any such planfavorable determination or inability to rely on any opinion letter except as disclosed on Disclosure Schedule 4.2(j)(ii). To the Knowledge of Company, (Ceach Company Benefit Plan 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(a) neither Parent nor any of its Subsidiaries has engaged in a transaction that has resulted in, or would reasonably be expected to result in, the assessment of a civil penalty upon Parent or any of its Subsidiaries pursuant to Section 409 or 502(i) of ERISA or a tax imposed pursuant to Section 4975 or 4976 of the Code that has not been satisfied in fulland, (D) there does not now existexcept as disclosed on Disclosure Schedule 4.2(j)(ii), norall reports, to descriptions and filings required by the knowledge of ParentCode, do any circumstances exist that would reasonably be expected to result in, any Controlled Group Liability that would be a liability of Parent, any of its Subsidiaries ERISA or any of their respective ERISA Affiliates, (E) all payments required to be made by or government agency with respect to each Parent Company Benefit Plan have been timely and completely filed or distributed.
(iii) To the Knowledge of Company, no Company 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) and Company has not at any time during the last six (6) years, sponsored, maintained, contributed to or been obligated to contribute to any plan subject to Title IV of ERISA. No Company Benefit Plan is subject to the funding standards of Sections 412 or 436 of the Code or Section 302 of ERISA.
(iv) All contributions (including, without limitations, all employer contributions, insurance employee salary reduction contributions and all premiums or intercompany chargesother 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 all prior periods have been timely made or paid by Parent or its Subsidiaries in accordance with the provisions of each of the Parent Company Benefit Plans and applicable Law orPlan and, to the extent not required to be made or paid on or before the date hereofpresently payable, appropriate reserves have been reflected on established for the books payment and records of Parent properly accrued in accordance with GAAP and (F) there are no pending or, customary accounting practices. Pro-rata annual Company contributions to the knowledge of Parent, threatened claims by or Company Benefit Plans on behalf of any Parent Benefit Planits employees and performance bonuses, by any employee or beneficiary covered under any Parent Benefit Plan or otherwise involving any Parent Benefit Plan or any trusts related thereto (other than routine claims for benefitsas listed on Disclosure Schedule 4.2(j)(iv).
(iv) None of Parent, any of its Subsidiaries or any of their respective ERISA Affiliates maintains, contributes to, or participates in, or has ever during shall be paid based on amounts accrued at the past six (6) years maintained, contributed to, or participated in, or otherwise has any obligation or liability in connection with: (A) a plan subject to Title IV or Section 302 of ERISA or Section 412 or Section 430 end 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 month prior to the Code) or a “multiemployer plan” (as defined in Section 3(37) of ERISA), or (C) any plan or arrangement which provides for post-employment or post-retirement medical or welfare benefits for retired or former employees or beneficiaries or dependents thereof, except pursuant to Section 4980B of the Code or other applicable LawClosing from Company accruals.
(v) With respect To the Knowledge of Company, all obligations required to each Parent be performed by Company under any Company Benefit Plan that is subject to Title IV 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 Company Benefit Plan. There have been no prohibited transactions (described under Section 302 406 of ERISA or Section 412 or 430 of the Code (each, a “Parent Title IV Plan”): (A4975(c) there does not exist any failure to meet the “minimum funding standard” of Section 412 of the Code or 302 of ERISA (whether or not waived), (B) no such plan is in “at-risk” status for purposes of Section 430 of the Code), (C) the present value breaches of accrued benefits under such Parent Title IV Plan, based upon the actuarial assumptions used for funding purposes in the most recent actuarial report prepared by such Parent Title IV Plan’s actuary with respect to such Parent Title IV Plan, did not, as fiduciary duty or any other breaches or violations of its latest valuation date, exceed the then current fair market value of the assets of such Parent Title IV Plan allocable to such accrued benefits, (D) no reportable event within the meaning of Section 4043(c) of ERISA has occurred, (E) all premiums any law applicable to the PBGC have been timely paid in full, (F) no liability (other than for premiums to the PBGC) under Title IV of ERISA has been Company Benefit Plans that would directly or is expected to be incurred by indirectly subject Parent or Company to any of its ERISA Affiliatestaxes, and (G) the PBGC has not instituted proceedings to terminate penalties or other liabilities, including any such Parent Title IV Plan and, to the knowledge of Parent, no circumstances exist which could serve as a basis for the institution of such proceedingsliability arising through indemnification.
(vi) Except as set forth on disclosed in Disclosure Schedule 4.2(j)(vi), no Company Benefit Plan is invested in or provides the opportunity for the purchase of any employer security or employer real property (within the meaning of Section 3.2(j)(vi407(d) of ERISA), other than the Company Stock Incentive Plan.
(vii) With respect to the Company Benefit Plans, Company has provided Parent a true, correct and complete copy of each form of award agreement, including amendments, under which the grant, sale or issuance of Company Common Stock, or the payment of cash based on the value of Company Common Stock have been granted, and a schedule showing the name of each grantee, the date of grant and all other material terms of each grant. No stock option or other right to acquire Company Common Stock or other equity of Company, or the payment of cash based on the value of Company Common Stock (A) has an exercise price that was less than the fair market value of the underlying equity as of the date such stock option or right was granted, as determined by Company in good faith and in compliance with the relevant IRS guidance in effect on the date of grant (including, IRS Notice 2005-1 and Treasury Regulations Section 1.409A-1(b)(5)(iv)), (B) has any feature for the deferral of compensation other than the deferral of recognition of income until the later of exercise or disposition of such option or right, or (C) has been granted after December 31, 2004, with respect to any class of stock of Company that is not “service recipient stock” (within the meaning of applicable regulations under Section 409A).
(viii) There are no pending claims, lawsuits or actions relating to any Company Benefit Plan (other than ordinary course claims for benefits) and, to the Knowledge of Company none are threatened. Except as disclosed on Disclosure LetterSchedule 4.2(j)(viii), neither the execution Merger, nor subsequent events where consequences result solely as a result of both the occurrence of the subsequent event and delivery 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 Company.
(ix) Except as required by the continuation coverage requirements of Section 601 et seq. of ERISA and Section 4980B of the Code or comparable state law, to the Knowledge of Company, Company has no liability to provide post-retirement health or life benefits to any employee or former employee. To the Knowledge of Company, no written or oral representations have been made to any employee or former employee of Company promising or guaranteeing any employer payment or funding for the continuation of medical, dental, life or disability coverage for such individual, their dependents, or any beneficiaries for any period of time beyond the end of the current plan year or beyond termination of employment, except as required by law and at no expense to Company.
(x) Except as set forth in Disclosure Schedule 4.2(j)(x), no Company Benefit Plan, Company Stock Plan or other contract or arrangement exists that could result in the payment to any present or former employee or director of Company of any money or other property or accelerate or provide any other rights or benefits to any present or former employee of Company or any Subsidiary of Company 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 Sections 4999 or 280G of the Code, nor will Parent be required to “gross up” or otherwise compensate any Person because of the limits contained in such Code sections.
(xi) Except as set forth in Disclosure Schedule 4.2(j)(xi), there are no surrender charges, penalties, or other costs or fees that would be imposed by any Person against Company, any Company Benefit Plan, or any other Person, including without limitation, any Company Benefit Plan participant or beneficiary as a result of the consummation of the transactions contemplated hereby (either alone by this Agreement with respect to any insurance, annuity or in conjunction with investment contracts or other similar investment held by any other event) will (A) increase any benefits otherwise payable or trigger any other obligation under any Parent Company Benefit Plan.
(xii) Each Company Benefit Plan which is a “group health plan” (as defined in the Code and ERISA) has been operated in compliance, (B) result in any acceleration all material respects, with Part 6 of Subtitle B of Title 1 of ERISA and Sections 4980B and 4980D of the time of payment, funding or vesting of Code and any such benefits or (C) result in any limitation on the right of analogous state law. No failure has occurred that would subject Parent or any of its Subsidiaries to amendtax under Sections 4980B or 4980D of the Code. Each such plan is in compliance, mergein all material respects, with, and the operation of each such plan will not result in the incurrence of any material penalty to Company or the Surviving Bank under, the Patient Protection and Affordable Care Act and its companion bxxx, the Health Care and Education Reconciliation Act of 2010, to the extent applicable.
(xiii) Except as described in Disclosure Schedule 4.2(j)(xiii), Company is insured by one or more insurance company(ies) for all health, dental, vision, life disability or similar claims relating to any Company Benefit Plan and Company does not self-insure against such claims.
(xiv) Company may, at any time, amend or terminate any Company Benefit Plan that it sponsors or receive a reversion of assets maintains and may withdraw from any Parent Company 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.
(xv) To the Knowledge of Company, each Company Benefit Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A(d)(1) of the Code (a “Nonqualified Deferred Compensation Plan”) subject to Section 409A of the Code 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 Treasury 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)(B) of the Code has been or is reasonably expected to be incurred by a participant in any such Company Benefit Plan or related trust.
(vii) No Parent Benefit Plan other contract, plan, program, agreement, or arrangement. Neither Company nor any Subsidiary is a party to, or otherwise obligated under, any contract, agreement, plan or arrangement that provides for the gross-up or reimbursement of Taxes under taxes imposed by Section 409A or 4999 409A(a)(1)(B) of the Code or otherwiseCode.
Appears in 1 contract
Samples: Merger Agreement (Sierra Bancorp)
Benefit Plans. (a) All “employee benefit plans” (within the meaning of section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”)) and all stock purchase, stock option, severance, employment, change-in-control, fringe benefit, bonus, incentive, deferred compensation and all other employee benefit plans, agreements, programs, policies or other arrangements, whether or not subject to ERISA (including any funding mechanism therefor now in effect or required in the future as a result of the transactions contemplated by this Agreement or otherwise) under which any employee or former employee of Company or its Subsidiaries has any present or future right to benefits or Company or its Subsidiaries has had or has any present or future liability, whether absolute or contingent, are referred to herein as the “Company Plans.”
(b) Company has provided Parent with (i) Section 3.2(j)(i) of the Parent Disclosure Letter contains a true, true and complete and correct list of each Benefit Company Plan sponsored, maintained or contributed by Parent or any of its Subsidiaries, or which Parent or any of its Subsidiaries is obligated to sponsor, maintain or contribute to, or with respect to which Parent or its Subsidiaries otherwise has any liability (the “Parent Benefit Plans”). No Parent Benefit Plan is established or maintained outside of the United States or for the benefit of current employees or former employees of Parent employed in the United States (the “Employee Plans” ), and (ii) information on benefits provided by the Company for employees or any of its Subsidiaries residing former employees who are situated outside of the United States.
(iic) Parent With respect to each Employee Plan, Company has delivered furnished or made available to the Company prior to the date of this Agreement Parent a truecurrent, correct accurate and complete copy of each Parent Benefit Plan currently in effect thereof and, with respect theretoin each case to the extent applicable: (i) any related trust agreement or other funding instrument, (ii) the most recent determination or opinion letter of the IRS, if applicable, (Aiii) all amendments, the current trust (or other funding vehicle) agreements, and the most recent summary plan descriptionsdescription, summary of material modification, and other written summaries of the benefits provided under an Employee Plan, and (iv) copies of all material written correspondence with a Governmental Entity regarding audits or noncompliance with applicable Law, and (v) for the two most recent years (A) the Form 5500 and attached schedules, (B) the most recent annual report (Form 5500 series including, where applicable, all schedules audited financial statements and actuarial and accountants’ reports) filed with the Department of Labor and the most recent actuarial report or other financial statement relating to such Parent Benefit Plan, (C) actuarial valuation reports.
(d) No Employee Plan is subject to Sections 412 or 430 of the most recent determination letter from Code or Title IV of ERISA or is a multiemployer plan (within the IRS (if applicablemeaning of Section 3(37) for such Parent Benefit Plan of ERISA), and (D) none of Company, its Subsidiaries or any notice entity that would be treated as a single employer with Company or any of its Subsidiaries under Section 4001 of ERISA or Section 414 of the Code contributes to or from has in the IRS past six years sponsored, maintained, contributed to or had any office or representative of the Department of Labor relating to any unresolved compliance issues liability in respect of any such Parent Benefit Planplan or multiemployer plan. Neither Company nor any of its Subsidiaries has any current or projected liability with respect to an obligation to provide any health, medical or life insurance benefits (whether or not insured) with respect to any Person beyond his or her retirement or other termination of service other than coverage mandated by Section 4980B of the Code or any similar Law, and at the expense of such Person.
(iiie) Except as would not reasonably be expected With respect to haveeach Employee Plan, except to the extent that any inaccuracies in the representations and warranties set forth in this Section 3.11(e), individually or in the aggregate, have not had a Material Adverse Effect on Parent, Effect:
(Ai) each Parent Benefit Employee Plan has been maintained established and administered in compliance accordance with its terms and in compliance with the applicable Law, including, but not limited to, provisions of ERISA and the Code Code, and in each case all contributions required to be made under the regulations thereunder, terms of any Employee Plan have been timely made;
(Bii) each Parent Benefit Employee Plan intended to be qualified under Section 401(a) of the Code is so qualified and has received a favorable determination or determination, advisory and/or opinion letter letter, as to its qualifications applicable, from the IRS or that it is entitled to rely on an advisory or opinion so qualified and nothing has occurred since the date of such letter as to its qualifications 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 adversely affect cause the loss of such qualified status of such Employee Plan; and
(iii) there is no Action (including any such planinvestigation, (Caudit or other administrative proceeding) neither Parent nor by the Department of Labor, the PBGC, the IRS or any of its Subsidiaries has engaged in a transaction that has resulted inother Governmental Entity or by any plan participant or beneficiary pending, or would reasonably be expected to result in, the assessment of a civil penalty upon Parent or any of its Subsidiaries pursuant to Section 409 or 502(i) of ERISA or a tax imposed pursuant to Section 4975 or 4976 of the Code that has not been satisfied in full, (D) there does not now exist, nor, to the knowledge of ParentCompany, do any circumstances exist that would reasonably be expected threatened, relating to result inEmployee Plans, any Controlled Group Liability that would be a liability of Parent, any of its Subsidiaries or any of their respective ERISA Affiliates, (E) all payments required to be made by or fiduciaries thereof with respect to each Parent Benefit Plan (including all contributions, insurance premiums their duties to Employee Plans or intercompany charges) with respect to all prior periods have been timely made or paid by Parent or its Subsidiaries in accordance with the provisions assets of each any of the Parent 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 Parent in accordance with GAAP and (F) there are no pending or, to the knowledge of Parent, threatened claims by or on behalf of any Parent Benefit Plan, by any employee or beneficiary covered trusts under any Parent Benefit Plan or otherwise involving any Parent Benefit Plan or any trusts related thereto Employee Plans (other than routine claims for benefits)) nor are there facts or circumstances that exist that could reasonably give rise to any such Actions.
(ivf) None Each Employee Plan that is a “nonqualified deferred compensation plan” subject to Section 409A of Parentthe Code complies with and has been operated and maintained in accordance with the requirements of Section 409A(a)(2), (3), and (4) of the Code and any U.S. Department of its Subsidiaries or Treasury and IRS guidance issued thereunder and no amounts under any of their respective ERISA Affiliates maintainssuch Employee Plan is, contributes tohas been, or participates incould reasonably be expected to be, 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 plan subject to Title IV or the interest and additional tax set forth under Section 302 of ERISA or Section 412 or Section 430 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(c409A(a)(1)(B) of the Code) or a “multiemployer plan” (as defined in Section 3(37) of ERISA). No Company Participant is entitled to any gross-up, or (C) any plan or arrangement which provides for postmake-employment or post-retirement medical or welfare benefits for retired or former employees or beneficiaries or dependents thereof, except pursuant to Section 4980B of the Code whole or other applicable Law.
(v) With respect to each Parent Benefit Plan that is subject to Title IV or Section 302 of ERISA or Section 412 or 430 of the Code (each, a “Parent Title IV Plan”): (A) there does not exist any failure to meet the “minimum funding standard” of Section 412 of the Code or 302 of ERISA (whether or not waived), (B) no such plan is in “at-risk” status for purposes of Section 430 of the Code, (C) the present value of accrued benefits under such Parent Title IV Plan, based upon the actuarial assumptions used for funding purposes in the most recent actuarial report prepared by such Parent Title IV Plan’s actuary with respect to such Parent Title IV Plan, did not, as of its latest valuation date, exceed the then current fair market value of the assets of such Parent Title IV Plan allocable to such accrued benefits, (D) no reportable event within the meaning of Section 4043(c) of ERISA has occurred, (E) all premiums to the PBGC have been timely paid in full, (F) no liability (other than for premiums to the PBGC) under Title IV of ERISA has been or is expected to be incurred by Parent or any of its ERISA Affiliates, and (G) the PBGC has not instituted proceedings to terminate any such Parent Title IV Plan and, to the knowledge of Parent, no circumstances exist which could serve as a basis for the institution of such proceedings.
(vi) Except as set forth on Section 3.2(j)(vi) of the Parent Disclosure Letter, 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) increase any benefits otherwise payable or trigger any other obligation under any Parent Benefit Plan, (B) result in any acceleration of the time of payment, funding or vesting of any such benefits or (C) result in any limitation on the right of Parent additional payment from Company or any of its Subsidiaries to amendin respect of any Tax (including Federal, mergestate, terminate local or receive a reversion of assets from any Parent Benefit Plan foreign income, excise or related trust.
other Taxes (vii) No Parent Benefit Plan provides for the gross-up or reimbursement of including Taxes imposed under Section 409A or 4999 of the Code Code)) or otherwiseinterest or penalty related thereto. For purposes of this Agreement, “Company Participant” shall mean any current or former director, officer, employee, contractor or consultant of Company or any of its Subsidiaries.
Appears in 1 contract
Benefit Plans. (ia) Section 3.2(j)(iSchedule 4.11(a) of the Parent Disclosure Letter contains Schedules sets forth a true, complete true and correct list of each Benefit Plan sponsored, maintained or contributed by Parent or any of its Subsidiaries, or which Parent or any of its Subsidiaries is obligated all material Company Plans.
(b) The Company has made available to sponsor, maintain or contribute to, or Investor with respect to which Parent or its Subsidiaries otherwise has any liability (the “Parent Benefit Plans”). No Parent Benefit each Company Plan is established or maintained outside listed on Schedule 4.11(a) of the United States or for the benefit of current or former employees of Parent or any of its Subsidiaries residing outside of the United States.
(ii) Parent has delivered or made available Disclosure Schedules, to the extent applicable, (i) a copy of each written Company prior to the date Plan or a summary of this Agreement a trueeach Company Plan that is not in writing, correct and complete copy of each Parent Benefit Plan currently and as in effect and, with respect thereto, if applicableon the date hereof, (A) all amendments, the current trust (or other funding vehicle) agreements, and the most recent summary plan descriptions, (Bii) the most recent annual report (on Form 5500 series including, where applicable, all schedules and actuarial and accountants’ reports) required to be filed with the Department of Labor and the most recent actuarial report or other financial statement relating to such Parent Benefit PlanIRS, if any, (Ciii) the most recent determination letter from summary plan description, including all summaries of material modifications required under ERISA, if any, (iv) each trust, insurance, annuity or other funding Contract, including all amendments thereto, (v) the IRS (if applicable) for such Parent Benefit Plan most recently prepared financial statements and actuarial or other valuation reports and (Dvi) any notice the most recent IRS determination, opinion or advisory letter for each Company Plan that is intended to or from be qualified within the IRS or any office or representative meaning of Section 401(a) of the Department of Labor relating to any unresolved compliance issues in respect of such Parent Benefit PlanCode.
(iiic) Except as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on Parent, (A) For each Parent Benefit Company 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 thereunder, (B) each Parent Benefit Plan that is intended to be qualified under Section 401(a) of the Code Code, the Company has received obtained a favorable determination and current IRS determination, opinion or opinion advisory letter as to its qualifications from the IRS or is entitled to rely on an advisory or opinion letter as to its qualifications issued with respect to an IRS approved master and prototype or volume submitter plansuch effect, and there are no existing circumstances nothing has occurred, whether by action or any events inaction, that have occurred that would could reasonably be expected to adversely affect cause the qualified status loss of such qualification or any such planmaterial Liability to a Business Group Company.
(d) Each Company Plan (and any related trust or other funding vehicle) has been established, (C) neither Parent nor any of maintained, operated and administered in material compliance with its Subsidiaries has engaged in a transaction that has resulted interms and all applicable Laws. With respect to each Company Plan, or except as would not reasonably be expected to result in, the assessment of a civil penalty upon Parent or in material Liability to any of its Subsidiaries pursuant to Section 409 or 502(i) of ERISA or a tax imposed pursuant to Section 4975 or 4976 of the Code that has not been satisfied in full, Business Group Company (D) there does not now exist, nor, to the knowledge of Parent, do any circumstances exist that would reasonably be expected to result in, any Controlled Group Liability that would be a liability of Parent, any of its Subsidiaries or any of their respective ERISA Affiliates, (E) all payments required to be made by or with respect to each Parent Benefit Plan (including all contributions, insurance premiums or intercompany charges) with respect to all prior periods have been timely made or paid by Parent or its Subsidiaries in accordance with the provisions of each of the Parent 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 Parent in accordance with GAAP and (Fi) there are no pending or, to the knowledge Company’s Knowledge, threatened, Actions (other than claims for benefits in the ordinary course of Parentbusiness), threatened claims (ii) no facts or circumstances exist, to the Knowledge of the Company, that would reasonably be expected to give rise to any such Actions and (iii) no audit, investigation or other administrative proceeding by the U.S. Department of Labor, IRS or on behalf of any Parent Benefit Planother Governmental Authority is pending, by or, to the Company’s Knowledge, threatened.
(e) No Business Group Company has any obligation to provide health or other non-pension benefits to any employee or beneficiary covered under former employee of a Business Group Company upon retirement, or termination of employment for any Parent Benefit reason, except as specifically required by the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, or other applicable Law. No Company Plan or otherwise involving any Parent Benefit Plan or any trusts related thereto (other than routine claims for benefits).
(iv) None of Parentis, any of its Subsidiaries or any of their respective ERISA Affiliates maintainsand the Company does not sponsor, contributes maintain, contribute to, or participates inand has not, or has ever during within the past six (6) years years, sponsored, maintained, contributed to, or participated in, or otherwise has had any obligation or liability in connection with: Liability (Aincluding by virtue of being an ERISA Affiliate of any other Person) a with respect to any (i) single employer pension plan that is subject to Section 302 or Title IV or Section 302 of ERISA or Section 412 or Section 430 of the Code, or (Bii) 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 any “multiemployer plan” (as defined in within the meaning of Section 3(37) of ERISA), or (C) any plan or arrangement which provides for post-employment or post-retirement medical or welfare benefits for retired or former employees or beneficiaries or dependents thereof, except pursuant to Section 4980B of the Code or other applicable Law.
(vf) With respect to each Parent Benefit Plan that is subject to Title IV or Section 302 of ERISA or Section 412 or 430 of the Code (each, a “Parent Title IV Plan”): (A) there does not exist any failure to meet the “minimum funding standard” of Section 412 of the Code or 302 of ERISA (whether or not waived), (B) no such plan is in “at-risk” status for purposes of Section 430 of the Code, (C) the present value of accrued benefits under such Parent Title IV Plan, based upon the actuarial assumptions used for funding purposes in the most recent actuarial report prepared by such Parent Title IV Plan’s actuary with respect to such Parent Title IV Plan, did not, as of its latest valuation date, exceed the then current fair market value of the assets of such Parent Title IV Plan allocable to such accrued benefits, (D) no reportable event within the meaning of Section 4043(c) of ERISA has occurred, (E) all premiums to the PBGC have been timely paid in full, (F) no liability (other than for premiums to the PBGC) under Title IV of ERISA has been or is expected to be incurred by Parent or any of its ERISA Affiliates, and (G) the PBGC has not instituted proceedings to terminate any such Parent Title IV Plan and, to the knowledge of Parent, no circumstances exist which could serve as a basis for the institution of such proceedings.
(vi) Except as set forth on Section 3.2(j)(vi) of the Parent Disclosure Letter, neither Neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby (either any or all of Contemplated Transactions, alone or in conjunction combination with any other eventevent (including any termination of employment as of or following the Closing), will: (i) will (A) entitle any Company Personnel to severance pay or any material increase any benefits otherwise payable or trigger any other obligation under any Parent Benefit Planin severance pay, (Bii) result in any acceleration of accelerate the time of payment, funding or vesting or increase the amount of any such benefits compensation or benefit due to any Company Personnel or (Ciii) directly or indirectly result in any limitation payment made or to be made to or on behalf of any Company Personnel that would constitute a “parachute payment” within the right meaning of Parent or Section 280G of the Code. No Company Personnel is entitled to receive any of its Subsidiaries to amend, merge, terminate or receive a reversion of assets from any Parent Benefit Plan or related trust.
(vii) No Parent Benefit Plan provides for the gross-up or reimbursement additional payment by reason of Taxes under any Tax being imposed on such Person, including any Tax required by Section 409A or 4999 of the Code.
(g) Each Company Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A(d)(1) of the Code or otherwiseand any award thereunder, in each case that is subject to Section 409A of the Code, has been operated in compliance with Section 409A of the Code and the regulations thereunder in all material respects.
Appears in 1 contract
Samples: Purchase Agreement (Coty Inc.)
Benefit Plans. (ia) Section 3.2(j)(iSchedule 3.14(a) of the Parent Disclosure Letter contains sets forth a true, complete and correct list of each Benefit Plan sponsored, maintained or contributed by Parent or any of its Subsidiaries, or which Parent or any of its Subsidiaries is obligated to sponsor, maintain or contribute to, or with respect to which Parent or its Subsidiaries otherwise has any liability (the “Parent all Company Benefit Plans”). No Parent Benefit Plan is established or maintained outside of the United States or for the benefit of current or former employees of Parent or any of its Subsidiaries residing outside of the United States.
(ii) Parent has delivered or made available to the Company prior to the date of this Agreement a true, correct and complete A copy of each Parent Company Benefit Plan, and all contracts relating thereto, or to the funding thereof, has been supplied to Purchaser, along with, to the extent applicable, an accurate written description of each Company Benefit Plan currently that is not in effect and, with respect thereto, if written form. To the extent applicable, (A) all amendments, the current trust (or other funding vehicle) agreements, and the most recent summary plan descriptions, (B) the most recent annual report (Form 5500 series includingreport, where applicableactuarial report, all schedules accountant’s opinion of the plan’s financial statements, summary plan description, summaries of material modification and actuarial summary of benefits and accountants’ reports) filed coverage, IRS determination or opinion letter with the Department of Labor and the most recent actuarial report or other financial statement relating respect to such Parent each Company Benefit Plan, (C) the most recent determination letter from the IRS (if applicable) for such Parent Benefit Plan and (D) any notice to or from the IRS or any office or representative a current schedule of the Department of Labor relating assets held with respect to any unresolved compliance issues in respect of such Parent funded Company Benefit Plan, has been supplied to Purchaser.
(iiib) Except as 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 not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on Parent, (A) each Parent cause any such Company Benefit Plan to fail to comply with such requirements and no notice has been maintained issued by any Governmental Authority questioning or challenging such compliance. All Company Benefit Plans that are subject to Section 409A of the Code comply with Section 409A in form and have been administered in compliance accordance with its their terms and with applicable Law, including, but not limited to, ERISA and Section 409A of the Code and in each case the regulations thereunder, Code.
(Bc) each Parent Each Company Benefit Plan intended that is an employee pension benefit plan is the subject of a favorable determination or opinion letter issued by the IRS with respect to be the qualified status of such plan under Section 401(a) of the Code has received a favorable determination or opinion letter as to its qualifications from and the IRS or is entitled to rely on an advisory or opinion letter as to its qualifications 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 adversely affect the qualified tax-exempt status of any trust that forms a part of such planplan under Section 501(a) of the Code; all amendments to any such plan for which the remedial amendment period (within the meaning of Section 401(b) of the Code and applicable regulations) has expired are covered by a favorable IRS determination letter; and to Owner’s Knowledge, (C) neither Parent nor any of its Subsidiaries no event has engaged in a transaction occurred that has resulted in, will or would reasonably be expected to result in, give rise to disqualification of any such plan under such sections. None of the assessment assets of a civil penalty upon Parent any Company Benefit Plan are invested in employer securities or any of its Subsidiaries pursuant to employer real property.
(d) There have been no “prohibited transactions” (as described in Section 409 or 502(i) 406 of ERISA or a tax imposed pursuant to Section 4975 or 4976 of the Code that has not been satisfied in fullCode) with respect to any Company Benefit Plan and none of Owner, (D) there does not now exist, nor, to the knowledge of Parent, do any circumstances exist that would reasonably be expected to result in, any Controlled Group Liability that would be a liability of Parent, any of its Subsidiaries Company or any of their respective ERISA Affiliates, (E) all payments required to be made by or with respect to each Parent Benefit Plan (including all contributions, insurance premiums or intercompany charges) with respect to all prior periods have been timely made or paid by Parent or its Subsidiaries Affiliates has engaged in accordance with the provisions of each of the Parent 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 Parent in accordance with GAAP and (F) there any prohibited transaction. There are no actions, suits or claims (other than routine claims for benefits) pending or, to the knowledge of ParentOwner’s Knowledge, threatened claims by or on behalf of involving any Parent Benefit Plan, by any employee or beneficiary covered under any Parent Company Benefit Plan or otherwise involving the assets thereof and no facts exist that could give rise to any Parent Benefit Plan such actions, suits or any trusts related thereto claims (other than routine claims for benefits).
(ive) None of ParentThere have been no acts or omissions by Owner, any of its Subsidiaries the Company or any of their respective ERISA Affiliates maintainsthat have given rise to or would reasonably be expected to give rise to interest, contributes 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 ERISA Affiliates may be liable or under Section 409A of the Code for which the Company or any of its ERISA Affiliates 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 3.14(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 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, (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 set forth on Schedule 3.14(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 280G of the Code (without regard to subsection (b)(4) thereof)). Neither the Company nor any of its ERISA Affiliates is a nonqualified entity within the meaning of Section 457A of the Code. No Company Benefit Plan or any contract, agreement, plan, policy, or arrangement with any employee, officer, director, consultant or independent contractor of the Company or any of their respective ERISA Affiliates provides for a “gross-up” or similar payment in respect of any taxes that may become payable under Sections 409A or 4999 of the Code.
(g) Neither the Company nor any of its ERISA Affiliates has now or at any time had an obligation to contribute to, or participates in, or has ever during the past six (6) years maintained, contributed any Liability with respect to, or participated in, or otherwise has any obligation or liability in connection with: (Ai) a plan subject to Title IV or of ERISA, (ii) a Multiemployer Plan, (iii) a “multiple employer plan” within the meaning of Section 302 of ERISA or Section 412 or Section 430 413(c) of the Code, (Biv) a “multiple employer welfare arrangement” (as defined in within the meaning of Section 3(40) of ERISA), a “multiple employer plan” (as defined in Section 413(c) of the Code) or a “multiemployer plan” (as defined in Section 3(37) of ERISA), or (Cv) any plan or arrangement which provides for post-employment or post-retirement medical or welfare benefits life insurance benefits, other than statutory liability for retired or former employees or beneficiaries or dependents thereof, except pursuant to providing group health plan continuation coverage under Part 6 of Title I of ERISA and Section 4980B of the Code or other applicable Lawstate Law at the sole cost of the individual.
(vh) 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 the Ordinary Course of Business 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 (or any successor thereto) to unilaterally amend or terminate any Company Benefit Plan in accordance with its terms.
(j) With respect to each Parent 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 subject to Title IV affordable for themselves, such that there will not be any liability or excise tax under Section 302 4980H(a) or (b) of ERISA or Section 412 or 430 the Code, and (ii) has met its reporting obligation under Sections 6055 and 6056 of the Code (eachas applicable). No event has occurred, a “Parent Title IV and no conditions or circumstances exist, that would reasonably be expected to subject the Company, or any Company Benefit Plan”): (A) there does not exist any failure , to meet the “minimum funding standard” of Section 412 penalties or excise taxes under Sections 4980D or 4980H of the Code or 302 of ERISA (whether or not waived), (B) no such plan is in “at-risk” status for purposes of Section 430 any other provision of the Code, (C) the present value of accrued benefits under such Parent Title IV Plan, based upon the actuarial assumptions used for funding purposes in the most recent actuarial report prepared by such Parent Title IV Plan’s actuary with respect to such Parent Title IV Plan, did not, as of its latest valuation date, exceed the then current fair market value of the assets of such Parent Title IV Plan allocable to such accrued benefits, (D) no reportable event within the meaning of Section 4043(c) of ERISA has occurred, (E) all premiums to the PBGC have been timely paid in full, (F) no liability (other than for premiums to the PBGC) under Title IV of ERISA has been or is expected to be incurred by Parent or any of its ERISA Affiliates, and (G) the PBGC has not instituted proceedings to terminate any such Parent Title IV Plan and, to the knowledge of Parent, no circumstances exist which could serve as a basis for the institution of such proceedingsHealthcare Reform Laws.
(vi) Except as set forth on Section 3.2(j)(vi) of the Parent Disclosure Letter, 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) increase any benefits otherwise payable or trigger any other obligation under any Parent Benefit Plan, (B) result in any acceleration of the time of payment, funding or vesting of any such benefits or (C) result in any limitation on the right of Parent or any of its Subsidiaries to amend, merge, terminate or receive a reversion of assets from any Parent Benefit Plan or related trust.
(vii) No Parent Benefit Plan provides for the gross-up or reimbursement of Taxes under Section 409A or 4999 of the Code or otherwise.
Appears in 1 contract
Samples: Purchase Agreement (Proficient Auto Logistics, Inc)
Benefit Plans. (a) Set forth on Section 4.18(a) of the Company Disclosure Letter is a true and complete list of each material Company Benefit Plan, excluding any Company Benefit Plan that is an employment offer letter or individual independent contractor or consultant agreement that (i) is pursuant to a form set forth in Section 3.2(j)(i4.18(a) of the Parent Company Disclosure Letter contains a true, complete Letter; (ii) is terminable without notice and correct list without Liability to any of each Benefit Plan sponsored, maintained or contributed by Parent the Target Companies; and (iii) does not provide for severance or any of its Subsidiaries, payment or which Parent or any of its Subsidiaries benefit that is obligated to sponsor, maintain or contribute to, or with respect to which Parent or its Subsidiaries not otherwise has any liability (set forth in the “Parent Benefit Plans”applicable form set forth in Section 4.18(a). No Parent Each Company Benefit Plan is established exclusive to the Target Companies, and no Company Benefit Plan covers or maintained outside of the United States or for the benefit of provides benefits to any Person who is not a current or former employees of Parent or any of its Subsidiaries residing outside employee of the United StatesTarget Companies (or an eligible dependent of such current or former employee). With respect to each Company Benefit Plan, all contributions and other payments that have become due have been timely made or paid or, to the extent not yet due, are properly accrued in accordance with GAAP and past practice on the Company Financials.
(iib) Parent has delivered or made available to the Each Company prior to the date of this Agreement a true, correct and complete copy of each Parent Benefit Plan currently in effect andis and has been established, with respect theretooperated, if applicableadministered, (A) all amendments, the current trust (or other funding vehicle) agreementsmaintained, and the most recent summary plan descriptions, (B) the most recent annual report (Form 5500 series including, where applicable, funded at 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 Parent Benefit Plan, (C) the most recent determination letter from the IRS (if applicable) for such Parent Benefit Plan and (D) any notice to or from the IRS or any office or representative of the Department of Labor relating to any unresolved compliance issues in respect of such Parent Benefit Plan.
(iii) Except as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on Parent, (A) each Parent Benefit Plan has been maintained and administered times in compliance with its terms and with all applicable LawLaws in all material respects, including, but not limited to, including ERISA and the Code and in each case the regulations thereunder, (B) each Parent Code. Each Company Benefit Plan which is intended to be qualified under “qualified” within the meaning of Section 401(a) of the Code Code: (i) has received a favorable determination or opinion letter as to its qualifications from the IRS to be so qualified (or is based on a prototype plan or volume submitter plan which has received a favorable opinion or advisory letter upon which the Target Company is entitled to rely on rely); or (ii) the Target Company has requested an advisory initial favorable IRS determination of qualification or opinion letter as to its qualifications issued with respect to an IRS approved master and prototype exemption within the period permitted by applicable Law. No event has occurred or volume submitter plan, and there are no existing circumstances or any events that have occurred circumstance exists that would reasonably be expected to adversely affect the qualified status of such Company Benefit Plans or the exempt status of such trusts. Nothing has occurred that has subjected or would reasonably be expected to subject the Target Companies to any Liability on account of (i) a penalty under Section 502 of ERISA; (ii) a Tax penalty under Chapter 43 of the Code; or (iii) a breach of fiduciary duties.
(c) With respect to each Company Benefit Plan required to be listed on Section 4.18(a) of the Company Disclosure Letter, the Company has provided to the Parent accurate and complete copies, if applicable, of: (i) all Company Benefit Plan documents (including any amendments, modifications or supplements) or, for any unwritten Company Benefit Plan, a written summary of the material terms of such unwritten Company Benefit Plan; (ii) all trust agreements and other funding arrangements, insurance policies (including any stop loss insurance policies), and Contracts; (iii) the most recent summary plan descriptions and each summary of material modifications to such plan descriptions; (iv) the most recent Form 5500, if applicable, and annual report, including all schedules; (v) the most recent annual and periodic accounting of plan assets; (vi) the most recent determination, opinion or advisory letter received from the IRS; (vii) the most recent actuarial valuation; and (viii) all non-routine communications with any Governmental Authority within the last three years.
(d) No Legal Proceeding or claim is pending, or to the Company’s Knowledge, threatened (other than routine claims for benefits arising in the ordinary course of administration and administrative appeals of denied claims) against or relating to any Company Benefit Plan or the assets of any Company Benefit Plan and no Company Benefit Plan is the subject of an examination or audit by a Governmental Authority, and no such examination or audit has been threatened. No Company Benefit Plan is, and the Target Companies are not with respect to any Company Benefit Plan, the subject of an application or filing under or a participant in an amnesty, voluntary compliance, self-correction or similar program sponsored by any Governmental Authority, and no circumstances exist pursuant to which any Company Benefit Plan would have any cause or reason to make such an application or filing or otherwise participate in any such planprogram. There has been no non-exempt “prohibited transaction,” as defined in Section 406 of ERISA or Section 4975 of the Code, or breach of fiduciary duty with respect to any Company Benefit Plan. No Target Company has incurred (C) neither Parent nor any of its Subsidiaries has engaged in a transaction that has resulted inwhether or not assessed), or would reasonably be expected to result inincur or be subject to, the assessment of a civil any Tax or penalty upon Parent under Sections 4980B, 4980D, 4980H, 6721 or any of its Subsidiaries pursuant to Section 409 or 502(i) of ERISA or a tax imposed pursuant to Section 4975 or 4976 6722 of the Code that has not been satisfied in fullor similar state law, (D) there does not now exist, nor, to the knowledge of Parent, do any and no circumstances exist or events have occurred that would could reasonably be expected to result in, any Controlled Group Liability that would be a liability of Parent, any of its Subsidiaries or any of their respective ERISA Affiliates, (E) all payments required to be made by or with respect to each Parent Benefit Plan (including all contributions, insurance premiums or intercompany charges) with respect to all prior periods have been timely made or paid by Parent or its Subsidiaries in accordance with the provisions of each of the Parent 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 Parent in accordance with GAAP and (F) there are no pending or, to the knowledge of Parent, threatened claims by or on behalf imposition of any Parent Benefit Plan, by any employee such Taxes or beneficiary covered under any Parent Benefit Plan or otherwise involving any Parent Benefit Plan or any trusts related thereto (other than routine claims for benefits)penalties.
(ive) None of Parent, the Target Companies nor any of its Subsidiaries or any of their respective ERISA Affiliates maintains, contributes to, or participates in, or Affiliate has ever during the past six (6) years sponsored, maintained, contributed to, had an obligation to contribute to or participated inhas ever had any Liability or obligation under or with respect to, or otherwise has any obligation or liability in connection withand no Company Benefit Plan is: (Ai) a “defined benefit plan” (as defined in Section 3(35) of ERISA); (ii) a plan that is or was subject to Section 302 or Title IV or Section 302 of ERISA or Section Sections 412 or Section 430 of the Code, ; (Biii) a “multiemployer plan” (as defined in Section 3(37) of ERISA); (iv) a “multiple employer welfare arrangement” (as defined in Section 3(40) of ERISA), ; (v) or a “multiple employer plan” (as defined described in Section 413(c) of the Code) Code or a “multiemployer plan” (as defined in Section 3(37) 210 of ERISA), or (C) any plan or arrangement which provides for post-employment or post-retirement medical or welfare benefits for retired or former employees or beneficiaries or dependents thereof, except pursuant to Section 4980B . None of the Code Target Companies has incurred any Liability or other applicable Law.
(v) With respect otherwise would reasonably be expected to each Parent Benefit Plan that is subject to Title IV have any Liability, contingent or Section 302 of ERISA or Section 412 or 430 of the Code (eachotherwise, a “Parent Title IV Plan”): (A) there does not exist any failure to meet the “minimum funding standard” of Section 412 of the Code or 302 of ERISA (whether or not waived), (B) no such plan is in “at-risk” status for purposes of Section 430 of the Code, (C) the present value of accrued benefits under such Parent Title IV Plan, based upon the actuarial assumptions used for funding purposes in the most recent actuarial report prepared by such Parent Title IV Plan’s actuary with respect to such Parent Title IV Plan, did not, as of its latest valuation date, exceed the then current fair market value of the assets of such Parent Title IV Plan allocable to such accrued benefits, (D) no reportable event within the meaning of Section 4043(c) of ERISA has occurred, (E) all premiums to the PBGC have been timely paid in full, (F) no liability (other than for premiums to the PBGC) under Title IV of ERISA has been or is expected to be incurred by Parent or any of its ERISA Affiliates, and (G) the PBGC has not instituted proceedings to terminate any such Parent Title IV Plan and, to the knowledge of Parent, no circumstances exist which could serve as a basis for consequence of at any time being considered a single employer under Section 414 of the institution of such proceedingsCode with any other Person.
(vif) Except as set forth on Section 3.2(j)(vi) of the Parent Disclosure Letter, neither Neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby (Transactions will, either alone or in conjunction connection with another event or events: (i) entitle any current or former employee, officer or other individual service provider of the Target Companies to any severance pay or increase in severance pay or to any other eventcompensation or benefits; (ii) will (A) increase any benefits otherwise payable or trigger any other obligation under any Parent Benefit Plan, (B) result in any acceleration of accelerate the time of payment, funding or vesting (including under any equity or equity-based award), or increase the amount of, compensation or benefits due to any employee, officer or other individual service provider of the Target Companies; (iii) directly or indirectly cause the Target Companies to transfer or set aside any such assets to fund any compensation or benefits under any Company Benefit Plan; (iv) otherwise give rise to any liability under any Company Benefit Plan; (v) limit or restrict the right of the Target Companies to merge, amend or terminate any Company Benefit Plan; or (Cvi) result in any limitation on “excess parachute payment” under Section 280G of the right of Parent or any of its Subsidiaries to amend, merge, terminate or receive a reversion of assets from any Parent Benefit Plan or related trustCode.
(viig) No Parent Company Benefit Plan provides for the a Tax gross-up up, make whole or reimbursement of similar payment with respect to the Taxes imposed under Section Sections 409A or 4999 of the Code.
(h) Except to the extent required by Section 4980B of the Code or otherwisesimilar state Law, none of the Target Companies has any Liability to provide, and no Company Benefit Plan provides, health or welfare benefits to any former or retired employee and are not obligated to provide such benefits to any active employee or any other Person following such employee’s retirement or other termination of employment or service. The Target Companies do not have any material Liability on account of a violation of the continuation coverage requirements under COBRA. Each Target Company has materially complied with the applicable provisions of the Patient Protection and Affordable Care Act of 2010, as amended, and the Health Care and Education Reconciliation Act of 2010, as amended.
(i) Each Company Benefit Plan that is subject to Section 409A of the Code has been administered in compliance, and is in documentary compliance, in each case in all material respects with the applicable provisions of Section 409A of the Code, the regulations under the Code and other official guidance issued under the Code. No amounts paid or payable by any of the Target Companies are subject to any Tax or penalty imposed under Section 457A of the Code. The Target Companies have not stated any intention, nor do they have any legally binding plan or commitment, to create any additional Company Benefit Plan or to modify or change any existing Company Benefit Plan, except as may be required by applicable Law.
(j) Each Company Benefit Plan maintained on behalf of current or former directors, officers, managers, employees or other service providers who reside or work primarily outside of the United States (each, a “Foreign Plan”) and who are required by any applicable Law to be registered or approved by a Governmental Authority has been so registered or approved and has been maintained in all material respects in good standing with the applicable Governmental Authority. Each Foreign Plan required under any applicable Law to be funded, is either: (i) funded in all material respects in accordance with such Law to an extent sufficient to provide for accrued benefit obligations with respect to all affected employees; or (ii) is fully insured, in each case based upon generally accepted local accounting and actuarial practices and procedures. None of the Transactions will, or would reasonably be expected to, cause such funding or insurance obligations to be materially less than such benefit obligations. No Foreign Plan is a “defined benefit plan” (as defined in ERISA, whether or not subject to ERISA), seniority premium, termination indemnity, gratuity or similar plan or arrangement. No unfunded or underfunded Liabilities exist with respect to any Foreign Plan.
Appears in 1 contract
Samples: Business Combination Agreement (Learn CW Investment Corp)
Benefit Plans. (a) Schedule 4.18 contains a complete list of all Benefit Plans of the North American Companies and their ERISA Affiliates.
(b) Except as set forth on Schedule 4.18:
(i) No North American Company maintains or has ever maintained, contributed to or has had an obligation to contribute to a Benefit Plan that is a defined benefit plan, as defined in Section 3.2(j)(i3(35) of ERISA, a plan subject to Title IV of ERISA or Section 412 of the Parent Disclosure Letter contains Code, or a true, complete and correct list multiple employer plan as described in Section 210(a) of each Benefit Plan sponsored, maintained or contributed by Parent or ERISA;
(ii) No North American Company nor any of its Subsidiariestheir ERISA Affiliates has ever contributed to, withdrawn in a partial or complete withdrawal from, or which Parent had an obligation to contribute to any “multiemployer plan” as defined in Section 4001(a)(3) or Section 3(37) of ERISA or has any fixed or contingent Liability under Section 4204 of ERISA with respect to any of its Subsidiaries is obligated to sponsortheir current or former employee, maintain or contribute to, or except for any withdrawal with respect to which Parent there was no withdrawal liability or its Subsidiaries otherwise has any liability (the “Parent Benefit Plans”). No Parent Benefit Plan is established or maintained outside of the United States or for the benefit of current or former employees of Parent or any of its Subsidiaries residing outside of the United States.
(ii) Parent has delivered or made available to the Company prior to extent that withdrawal liability has been reflected on the date of this Agreement a true, correct and complete copy of each Parent Benefit Plan currently in effect and, with respect thereto, if applicable, (A) all amendments, the current trust (or other funding vehicle) agreements, and the most recent summary plan descriptions, (B) 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 Parent Benefit Plan, (C) the most recent determination letter from the IRS (if applicable) for such Parent Benefit Plan and (D) any notice to or from the IRS or any office or representative of the Department of Labor relating to any unresolved compliance issues in respect of such Parent Benefit Plan.Financial Statements;
(iii) Except as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on Parent, (A) each Parent Each Benefit Plan of the North American Companies has been maintained maintained, operated and administered in compliance in all material respects with its terms and with all applicable Law, including, but not limited to, including ERISA and the Code Code;
(iv) The IRS has issued and in not revoked a favorable determination and/or opinion letter (as applicable) with respect to each case the regulations thereunderBenefit Plan, (B) and each Parent Benefit Plan related trust agreement, annuity contract or other funding instrument, which is intended to be qualified and tax-exempt under Section the provisions of Code Sections 401(a) of the Code has received a favorable determination or opinion letter as to its qualifications from the IRS or is entitled to rely on an advisory or opinion letter as to its qualifications issued with respect to an IRS approved master and prototype or volume submitter plan501(a), and there are each such Benefit Plan and related agreement, contract or instrument has been so qualified during the period from its adoption to the Closing Date and to Sellers’ Knowledge, no existing circumstances fact or any events circumstance exists that have occurred that would reasonably be expected to could adversely affect the qualified status of any such plan, Benefit Plan;
(Cv) neither Parent nor any As of its Subsidiaries has engaged in a transaction that has resulted in, or would reasonably be expected to result inand including the Closing Date, the assessment of a civil penalty upon Parent or any of its Subsidiaries pursuant to Section 409 or 502(i) of ERISA or a tax imposed pursuant to Section 4975 or 4976 of the Code that has not been satisfied in full, (D) there does not now exist, nor, to the knowledge of Parent, do any circumstances exist that would reasonably be expected to result in, any Controlled Group Liability that would be a liability of Parent, any of its Subsidiaries or any of their respective ERISA Affiliates, (E) North American Companies shall have made all contributions and payments required to be made by or up to and including the Closing Date with respect to each Parent Benefit Plan or shall have accrued such contribution and payments in the Financial Statements;
(including all contributionsvi) No North American Company or ERISA Affiliate thereof, insurance premiums nor any Benefit Plan, has any present or intercompany charges) future obligation to make any payment to, or with respect to, any present or former employee nor any ERISA Affiliate pursuant to all prior periods have been timely made any retiree medical benefit plan or paid by Parent or its Subsidiaries in accordance with the provisions of each other retiree welfare plan except as required under Section 4980B of the Parent Code;
(vii) There is no action, order, writ, injunction, judgment or decree outstanding or claim (other than claims for benefits in the ordinary course), suit, litigation, proceeding, arbitral action, governmental audit or investigation relating to or seeking benefits under any Benefit Plans and applicable Law Plan that is pending, 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 Knowledge of Parent in accordance with GAAP and (F) there are no pending or, to the knowledge of ParentSellers, threatened claims by or on behalf of any Parent Benefit Plan, by any employee or beneficiary covered under any Parent Benefit Plan or otherwise involving any Parent Benefit Plan or any trusts related thereto (other than routine claims for benefits).
(iv) None of Parent, any of its Subsidiaries against a North American Company or any of their respective ERISA Affiliates maintainsor any Benefit Plan, contributes toand to the Knowledge of Sellers, there exist no facts or participates incircumstances that could give rise to any such action, writ injunction, judgment, decree, claim, suit, litigation, proceeding, arbitral action, audit or has ever during the past six investigation;
(6viii) years maintained, contributed to, or participated in, or otherwise has No North American Company nor any obligation or liability in connection with: (A) a plan subject to Title IV or Section 302 of their ERISA or Section 412 or Section 430 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 plan” (as defined in Section 3(37) of ERISA), or (C) Affiliates have announced any plan made a legally binding commitment to create any additional Benefit Plans or arrangement which provides for post-employment to amend or post-retirement medical or welfare benefits for retired or former employees or beneficiaries or dependents thereofmodify any existing Benefit Plan, except pursuant to Section 4980B of the Code or other as required by applicable Law.;
(v) With respect to each Parent Benefit Plan that is subject to Title IV or Section 302 of ERISA or Section 412 or 430 of the Code (each, a “Parent Title IV Plan”): (A) there does not exist any failure to meet the “minimum funding standard” of Section 412 of the Code or 302 of ERISA (whether or not waived), (B) no such plan is in “at-risk” status for purposes of Section 430 of the Code, (C) the present value of accrued benefits under such Parent Title IV Plan, based upon the actuarial assumptions used for funding purposes in the most recent actuarial report prepared by such Parent Title IV Plan’s actuary with respect to such Parent Title IV Plan, did not, as of its latest valuation date, exceed the then current fair market value of the assets of such Parent Title IV Plan allocable to such accrued benefits, (D) no reportable event within the meaning of Section 4043(c) of ERISA has occurred, (E) all premiums to the PBGC have been timely paid in full, (F) no liability (other than for premiums to the PBGC) under Title IV of ERISA has been or is expected to be incurred by Parent or any of its ERISA Affiliates, and (G) the PBGC has not instituted proceedings to terminate any such Parent Title IV Plan and, to the knowledge of Parent, no circumstances exist which could serve as a basis for the institution of such proceedings.
(viix) Except as set forth on Section 3.2(j)(vi) of the Parent Disclosure Letterrequired by applicable Law, neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby (either alone will trigger a termination of employment entitling any employee of any North American Company to any additional benefits or result in conjunction with the acceleration or creation of any other event) will (A) increase rights of any person to benefits otherwise payable or trigger any other obligation under any Parent Benefit PlanPlan (including, (B) result in any without limitation, the acceleration of the time of payment, funding accrual or vesting of any such benefits under any Benefit Plan or the acceleration or creation of any rights under any severance, parachute or change in control agreement);
(Cx) Neither the execution and delivery of this Agreement nor any other Transaction Documents nor the consummation of the transactions contemplated hereby will result in any Liability for the ITI Entities under or with respect to any Benefit Plan;
(xi) The North American Companies and the Benefit Plans have properly classified individuals providing services as independent contractors or employees based on applicable standards under applicable Law, including without limitation on the right Code and federal, state, local and foreign labor laws and regulations, as the case may be, for all purposes, including but not limited to payroll and employee benefits purposes;
(xii) No “leased employee,” as that term is defined in Section 414(n) of Parent the Code, performs services for any North American Company;
(xiii) Each contract, agreement, plan or arrangement that covers any employee, former employee, independent contractor, former independent contractor, director or consultant of a North American Company or an ERISA Affiliate that constitutes a nonqualified deferred compensation plan, as defined in Section 409A of the Code, complies in all material respects in both form and operation with the requirements of such Section;
(xiv) There have been no Prohibited Transactions, as defined in ERISA section 406 and Code section 4975, with respect to any Benefit Plan of the North American Companies, and no fiduciary, as defined in ERISA section 3(21), has any liability for any material breach of fiduciary duty or any other material failure to act or comply in connection with the administration or investment of its Subsidiaries to amend, merge, terminate or receive a reversion the assets of assets from any Parent such Benefit Plan or related trust.Plan; and
(viixv) No Parent Benefit Plan provides for asset of any North American Company is subject to a lien under ERISA or the gross-up or reimbursement of Taxes under Section 409A or 4999 of the Code or otherwiseCode.
Appears in 1 contract
Samples: Acquisition Agreement (Insituform Technologies Inc)
Benefit Plans. (a) Section 5.11(a) of the Company Disclosure Letter sets forth a complete and accurate list of each Company Plan currently in effect, which include all amendments as of the date hereof. With respect to each Company Plan, the Company has furnished, made available, and will furnish to Merger Sub a current, accurate and complete copy thereof and any subsequent amendments thereto and, to the extent applicable: all related trust agreements or other funding instruments, insurance contracts and administrative contracts.
(b) With respect to the Company Plans:
(i) Section 3.2(j)(i) to the knowledge of the Parent Disclosure Letter contains a trueCompany, complete each Company Plan has been established and correct list administered in accordance with its terms and in material compliance with applicable Laws, and all contributions required to be made under the terms of each Benefit any Company Plan sponsored, maintained or contributed by Parent or any of its Subsidiaries, or which Parent or any of its Subsidiaries is obligated to sponsor, maintain or contribute to, or with respect to which Parent or its Subsidiaries otherwise has any liability (the “Parent Benefit Plans”). No Parent Benefit Plan is established or maintained outside of the United States or for the benefit of current or former employees of Parent or any of its Subsidiaries residing outside of the United States.have been timely made;
(ii) Parent has delivered or made available to the Company prior to the date of this Agreement a true, correct and complete copy of each Parent Benefit Plan currently in effect and, with respect thereto, if applicable, (A) all amendments, the current trust (or other funding vehicle) agreements, and the most recent summary plan descriptions, (B) 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 Parent Benefit Plan, (C) the most recent determination letter from the IRS (if applicable) for such Parent Benefit Plan and (D) any notice to or from the IRS or any office or representative of the Department of Labor relating to any unresolved compliance issues in respect of such Parent Benefit Plan.
(iii) Except as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on Parent, (A) each Parent 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 thereunder, (B) each Parent Benefit Plan intended to be qualified under Section 401(a) of the Code has received a favorable determination or opinion letter as to its qualifications from the IRS or is entitled to rely on an advisory or opinion letter as to its qualifications 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 adversely affect the qualified status of any such plan, (C) neither Parent nor any of its Subsidiaries has engaged in a transaction that has resulted in, or would reasonably be expected to result in, the assessment of a civil penalty upon Parent or any of its Subsidiaries pursuant to Section 409 or 502(i) of ERISA or a tax imposed pursuant to Section 4975 or 4976 of the Code that has not been satisfied in full, (D) there does not now exist, nor, to the knowledge of Parentthe Company, do there is no Action (including any investigation, audit or other administrative proceeding) by any Governmental Authority or by any plan participant or beneficiary pending, threatened, relating to the Company Plans, any fiduciaries thereof with respect to their duties to the Company Plans, nor are there facts or circumstances that exist that would reasonably be expected to result in, give rise to any Controlled Group Liability that would be a liability of Parent, any of its Subsidiaries or any of their respective ERISA Affiliates, such Actions; and
(Eiii) all payments required to be made by or with respect to each Parent Benefit Plan (including all contributions, insurance premiums or intercompany charges) with respect to all prior periods have been timely made or paid by Parent or its Subsidiaries in accordance with the provisions of each of the Parent 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 Parent in accordance with GAAP and (F) there are no pending or, to the knowledge of Parent, threatened claims by or on behalf of any Parent Benefit Plan, by any employee or beneficiary covered under any Parent Benefit the Company each Company Plan or otherwise involving any Parent Benefit Plan or any trusts related thereto (other than routine claims for benefits).
(iv) None of Parent, any of its Subsidiaries or any of their respective ERISA Affiliates 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 plan subject if intended to Title IV or Section 302 of ERISA or Section 412 or Section 430 of the Codequalify for special Tax treatment, has met all requirements for such treatment, and (B) a “multiple employer welfare arrangement” (if intended to be funded and/or book-reserved, is fully funded and/or book-reserved, as defined in Section 3(40) of ERISA)appropriate, a “multiple employer plan” (as defined in Section 413(c) of based upon reasonable actuarial assumptions, and the Code) or a “multiemployer plan” (as defined in Section 3(37) of ERISA), or (C) any plan or arrangement which provides for post-employment or post-retirement medical or welfare benefits for retired or former employees or beneficiaries or dependents thereof, except pursuant to Section 4980B of the Code or other Company and its Subsidiaries have complied with all their respective obligations under applicable Law.
(vc) With respect to each Parent Benefit Plan that is subject to Title IV or Section 302 of ERISA or Section 412 or 430 of Neither the Code (each, a “Parent Title IV Plan”): (A) there does not exist any failure to meet the “minimum funding standard” of Section 412 of the Code or 302 of ERISA (whether or not waived), (B) no such plan is in “at-risk” status for purposes of Section 430 of the Code, (C) the present value of accrued benefits under such Parent Title IV Plan, based upon the actuarial assumptions used for funding purposes in the most recent actuarial report prepared by such Parent Title IV Plan’s actuary with respect to such Parent Title IV Plan, did not, as of its latest valuation date, exceed the then current fair market value of the assets of such Parent Title IV Plan allocable to such accrued benefits, (D) no reportable event within the meaning of Section 4043(c) of ERISA has occurred, (E) all premiums to the PBGC have been timely paid in full, (F) no liability (other than for premiums to the PBGC) under Title IV of ERISA has been or is expected to be incurred by Parent or Company nor any of its ERISA AffiliatesSubsidiaries has any obligations for post-employment health or life benefits for any of their respective retired, and (G) the PBGC has not instituted proceedings to terminate any such Parent Title IV Plan andformer or current employees, to the knowledge of Parent, no circumstances exist which could serve except as a basis for the institution of such proceedingsrequired by Law.
(vid) Except as specifically provided herein or set forth on in Section 3.2(j)(vi5.11(d) of the Parent Company Disclosure Letter, neither the execution and delivery of this Agreement nor the consummation of the Offer and the Merger and the other transactions contemplated hereby (will not, either alone or in conjunction together with any other event) will (A) increase any benefits otherwise payable or trigger any other obligation under any Parent Benefit Plan, (Bi) result in entitle any acceleration current or former employee, director, or independent contractor of the time of payment, funding or vesting of any such benefits or (C) result in any limitation on the right of Parent Company or any of its Subsidiaries to amendseverance pay, merge, terminate or receive (ii) accelerate the time of payment or vesting or trigger any payment or funding (whether through a reversion of assets from any Parent Benefit Plan or related trust.
(vii) No Parent Benefit Plan provides for the gross-up or reimbursement of Taxes under Section 409A or 4999 of the Code grantor trust or otherwise) of compensation or benefits under, increase the amount allocable or payable or trigger any other material obligation pursuant to, any Company Plan.
Appears in 1 contract
Benefit Plans. (ia) Section 3.2(j)(iPart 2.16(a) of the Parent Disclosure Letter Schedule contains a true, an accurate and complete and correct list as of the date hereof of each Benefit Company Employee Plan sponsored, maintained and each Company Employee Agreement. The Company does not intend nor has it committed to establish or contributed by Parent enter into any new Company Employee Plan or any of its SubsidiariesCompany Employee Agreement, or to modify any Company Employee Plan or Company Employee Agreement.
(b) The Company has provided or made available to Parent a complete copy of each Company Employee Plan and each Company Employee Agreement as well as, if applicable, a copy of each trust or other funding arrangement, each summary plan description and summary of material modifications, and the most recent determination letter or opinion letter received from the IRS. The Company has delivered to Parent true and complete copies of all Form 5500 Series annual reports filed for each Company Employee Plan, together with all schedules, attachments, and related opinions and copies of any correspondence from or to the IRS, the DOL, or other U.S. government department or agency relating to an audit or penalty assessment with respect to any Company Employee Plan or relating to requested relief from any liability or penalty relating to any Company Employee Plan.
(c) Except as set forth in Part 2.16(c) of the Disclosure Schedule, there has been no violation of any term of any Company Employee Plan or Company Employee Agreement which Parent would have a Material Adverse Effect.
(d) Except as set forth in Part 2.16(d) of the Disclosure Schedule, to the extent applicable to the Company or any the Company Employees, each Company Employee Plan and each funding vehicle related to such plan is currently in compliance in all material respects with, and has been administered and operated in compliance in all material respects with, all applicable statutes, orders, rules and regulations. For each Company Employee Plan which is intended to be a “qualified plan” as described in Section 401(a) of its Subsidiaries the Code, the Company has received a determination letter or opinion from the IRS that the plan is obligated qualified and, to sponsorthe knowledge of the Company, there are no facts which might adversely affect such qualification.
(e) The Company does not maintain or contribute to, and has not ever maintained or with respect been required to which Parent or its Subsidiaries otherwise has any liability (the “Parent Benefit Plans”). No Parent Benefit Plan is established or maintained outside of the United States or for the benefit of current or former employees of Parent or any of its Subsidiaries residing outside of the United States.
(ii) Parent has delivered or made available to the Company prior to the date of this Agreement a true, correct and complete copy of each Parent Benefit Plan currently in effect and, with respect thereto, if applicable, (A) all amendments, the current trust (or other funding vehicle) agreements, and the most recent summary plan descriptions, (B) 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 Parent Benefit Plan, (C) the most recent determination letter from the IRS (if applicable) for such Parent Benefit Plan and (D) any notice to or from the IRS or any office or representative of the Department of Labor relating to any unresolved compliance issues in respect of such Parent Benefit Plan.
(iii) Except as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on Parent, (A) each Parent Benefit Plan has been maintained and administered in compliance with its terms and with applicable Law, including, but not limited contribute to, ERISA and the Code and any single employer plan (as such term is defined in each case the regulations thereunder, (B) each Parent Benefit Plan intended to be qualified under Section 401(a4001(b) of the Code has received a favorable determination or opinion letter as to its qualifications from the IRS or is entitled to rely on an advisory or opinion letter as to its qualifications 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 adversely affect the qualified status of any such plan, (CERISA) neither Parent nor any of its Subsidiaries has engaged in a transaction that has resulted in, or would reasonably be expected to result in, the assessment of a civil penalty upon Parent or any of its Subsidiaries pursuant to Section 409 or 502(i) of ERISA or a tax imposed pursuant to Section 4975 or 4976 of the Code that has not been satisfied in full, (D) there does not now exist, nor, to the knowledge of Parent, do any circumstances exist that would reasonably be expected to result in, any Controlled Group Liability that would be a liability of Parent, any of its Subsidiaries or any of their respective ERISA Affiliates, (E) all payments required to be made by or with respect to each Parent Benefit Plan (including all contributions, insurance premiums or intercompany charges) with respect to all prior periods have been timely made or paid by Parent or its Subsidiaries in accordance with the provisions of each of the Parent 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 Parent in accordance with GAAP and (F) there are no pending or, to the knowledge of Parent, threatened claims by or on behalf of any Parent Benefit Plan, by any employee or beneficiary covered under any Parent Benefit Plan or otherwise involving any Parent Benefit Plan or any trusts related thereto (other than routine claims for benefits).
(iv) None of Parent, any of its Subsidiaries or any of their respective ERISA Affiliates 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 plan subject to Title IV or Section 302 of ERISA or Section 412 or Section 430 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 any “multiemployer plan” (as such term is defined in Section 3(37) of ERISA), nor has the Company incurred any liability, including, without limitation, withdrawal liability, with respect to any such plan.
(f) No Company Employee Plan is funded by, associated with or related to a “voluntary employees’ beneficiary association” within the meaning of Section 501(c)(9) of the Code.
(Cg) The Company has made or will accrue prior to the Closing Date all payments and contributions (including, without limitation, insurance premiums) due and payable as of the Closing Date to each Company Employee Plan as required to be made under the terms of such Company Employee Plan and applicable law.
(h) With respect to all Company Employee Plans and related trusts, to the extent applicable to the Company or the Company Employees, there are no “prohibited transactions,” as that term is defined in Section 406 of ERISA or Section 4975 of the Code, that have occurred which would reasonably be expected to subject any plan Company Employee Plan, related trust or arrangement which provides party dealing with any such Company Employee Plan or related trust to any material tax or penalty on prohibited transactions imposed by Section 501(i) of ERISA or Section 4975 of the Code.
(i) There are no actions, suits, arbitrations or claims (other than routine claims for post-employment benefits by Company Employees, beneficiaries or dependents of such employees arising in the normal course of operation of a Company Employee Plan) pending, or to the knowledge of the Company, threatened, with respect to any Company Employee Plan or any fiduciary or sponsor of a Company Employee Plan with respect to their duties under such Company Employee Plan or the assets of any trust under any such Company Employee Plan.
(j) The Company has complied with the health care continuation requirements of Section 601, et. seq. of ERISA with respect to Company Employees and their spouses, former spouses and dependents.
(k) The Company has no obligations under any Company Employee Plan to provide post-retirement medical or welfare benefits to any Company Employee, other than statutory liability for retired or former employees or beneficiaries or dependents thereof, except pursuant to providing group health plan continuation coverage under Part 6 of Title I of ERISA and Section 4980B of the Code or other applicable Lawstate law.
(v) With respect to each Parent Benefit Plan that is subject to Title IV or Section 302 of ERISA or Section 412 or 430 of the Code (each, a “Parent Title IV Plan”): (A) there does not exist any failure to meet the “minimum funding standard” of Section 412 of the Code or 302 of ERISA (whether or not waived), (B) no such plan is in “at-risk” status for purposes of Section 430 of the Code, (C) the present value of accrued benefits under such Parent Title IV Plan, based upon the actuarial assumptions used for funding purposes in the most recent actuarial report prepared by such Parent Title IV Plan’s actuary with respect to such Parent Title IV Plan, did not, as of its latest valuation date, exceed the then current fair market value of the assets of such Parent Title IV Plan allocable to such accrued benefits, (D) no reportable event within the meaning of Section 4043(c) of ERISA has occurred, (E) all premiums to the PBGC have been timely paid in full, (F) no liability (other than for premiums to the PBGC) under Title IV of ERISA has been or is expected to be incurred by Parent or any of its ERISA Affiliates, and (G) the PBGC has not instituted proceedings to terminate any such Parent Title IV Plan and, to the knowledge of Parent, no circumstances exist which could serve as a basis for the institution of such proceedings.
(vi) Except as set forth on Section 3.2(j)(vi) of the Parent Disclosure Letter, 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) increase any benefits otherwise payable or trigger any other obligation under any Parent Benefit Plan, (B) result in any acceleration of the time of payment, funding or vesting of any such benefits or (C) result in any limitation on the right of Parent or any of its Subsidiaries to amend, merge, terminate or receive a reversion of assets from any Parent Benefit Plan or related trust.
(vii) No Parent Benefit Plan provides for the gross-up or reimbursement of Taxes under Section 409A or 4999 of the Code or otherwise.
Appears in 1 contract
Samples: Merger Agreement (Micronetics Inc)
Benefit Plans. (ia) Section 3.2(j)(i) of the Parent Disclosure Letter Schedule 5.14 contains a true, complete list and correct list brief description of each Benefit Plan sponsored, maintained or contributed by Parent or any of its Subsidiaries, or which Parent or any of its Subsidiaries is obligated to sponsor, maintain or contribute to, or with respect to which Parent or its Subsidiaries otherwise has any liability (the all “Parent Benefit Plans”). No Parent Benefit Plan is established or maintained outside of the United States or for the employee pension benefit of current or former employees of Parent or any of its Subsidiaries residing outside of the United States.
(ii) Parent has delivered or made available to the Company prior to the date of this Agreement a true, correct and complete copy of each Parent Benefit Plan currently in effect and, with respect thereto, if applicable, (A) all amendments, the current trust (or other funding vehicle) agreements, and the most recent summary plan descriptions, (B) 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 Parent Benefit Plan, (C) the most recent determination letter from the IRS (if applicable) for such Parent Benefit Plan and (D) any notice to or from the IRS or any office or representative of the Department of Labor relating to any unresolved compliance issues in respect of such Parent Benefit Plan.
(iii) Except as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on Parent, (A) each Parent 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 thereunder, (B) each Parent Benefit Plan intended to be qualified under Section 401(a) of the Code has received a favorable determination or opinion letter as to its qualifications from the IRS or is entitled to rely on an advisory or opinion letter as to its qualifications 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 adversely affect the qualified status of any such plan, (C) neither Parent nor any of its Subsidiaries has engaged in a transaction that has resulted in, or would reasonably be expected to result in, the assessment of a civil penalty upon Parent or any of its Subsidiaries pursuant to Section 409 or 502(i) of ERISA or a tax imposed pursuant to Section 4975 or 4976 of the Code that has not been satisfied in full, (D) there does not now exist, nor, to the knowledge of Parent, do any circumstances exist that would reasonably be expected to result in, any Controlled Group Liability that would be a liability of Parent, any of its Subsidiaries or any of their respective ERISA Affiliates, (E) all payments required to be made by or with respect to each Parent Benefit Plan (including all contributions, insurance premiums or intercompany charges) with respect to all prior periods have been timely made or paid by Parent or its Subsidiaries in accordance with the provisions of each of the Parent 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 Parent in accordance with GAAP and (F) there are no pending or, to the knowledge of Parent, threatened claims by or on behalf of any Parent Benefit Plan, by any employee or beneficiary covered under any Parent Benefit Plan or otherwise involving any Parent Benefit Plan or any trusts related thereto (other than routine claims for benefits).
(iv) None of Parent, any of its Subsidiaries or any of their respective ERISA Affiliates 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 plan subject to Title IV or Section 302 of ERISA or Section 412 or Section 430 of the Code, (B) a “multiple employer welfare arrangementplans” (as defined in Section 3(403(2) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”)), a maintained or contributed to by the Company for the benefit of any of the Company or the Subsidiaries’ officers or employees (“multiple employer planPension Plans”) and all “employee welfare benefit plans” (as defined in Section 413(c) of the Code) or a “multiemployer plan” (as defined in Section 3(373(1) of ERISA), bonus, stock option, stock purchase, deferred compensation plans or (C) arrangements and other employee fringe benefit plans maintained, or contributed to, by the Company or the Subsidiaries for the benefit of any plan or arrangement which provides for post-employment or post-retirement medical or welfare benefits for retired or former employees or beneficiaries or dependents thereof, except pursuant to Section 4980B of the Code officers or other applicable Lawemployees of the Company or the Subsidiaries (all the foregoing, including Pension Plans, being herein called “Benefit Plans”).
(vb) With respect to each Parent Each Benefit Plan that is subject to Title IV or Section 302 has been administered in all material respects in accordance with its terms. The Company and all the Benefit Plans are in compliance in all material respects with the applicable provisions of ERISA or Section 412 or 430 of the Code (eachERISA, a “Parent Title IV Plan”): (A) there does not exist any failure to meet the “minimum funding standard” of Section 412 of the Code or 302 of ERISA (whether or not waived), (B) no such plan is in “at-risk” status for purposes of Section 430 of the Code, (C) the present value of accrued benefits under such Parent Title IV Planall other applicable laws and all applicable collective bargaining agreements. All material reports, based upon the actuarial assumptions used for funding purposes in the most recent actuarial report prepared by such Parent Title IV Plan’s actuary returns and similar documents with respect to such Parent Title IV Planthe Benefit Plans required to be filed with any governmental entity or distributed to any Benefit Plan participant have been duly and timely filed or distributed. There are no actions or proceedings pending, did notor, as of its latest valuation date, exceed the then current fair market value of the assets of such Parent Title IV Plan allocable to such accrued benefits, (D) no reportable event within the meaning of Section 4043(c) of ERISA has occurred, (E) all premiums to the PBGC have been timely paid in fullCompany’s Knowledge, (F) no liability (other than for premiums to the PBGC) under Title IV of ERISA has been threatened against or is expected to be incurred by Parent or involving any of its ERISA Affiliates, and (G) the PBGC has not instituted proceedings to terminate any such Parent Title IV Benefit Plan and, to the knowledge of ParentCompany’s Knowledge, there are no circumstances exist which could serve as a basis investigations by any governmental entity or other claims (except routine claims for benefits payable in the institution of such proceedings.
(vi) Except as set forth on Section 3.2(j)(vi) normal operation of the Parent Disclosure Letter, neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby (either alone Benefit Plans) pending or in conjunction with threatened against or involving any other event) will (A) increase any benefits otherwise payable or trigger any other obligation under any Parent Benefit Plan, (B) result in any acceleration of the time of payment, funding or vesting of any such benefits or (C) result in any limitation on the right of Parent or any of its Subsidiaries to amend, merge, terminate or receive a reversion of assets from any Parent Benefit Plan or related trust.
(vii) No Parent asserting any rights to benefits under any Benefit Plan provides for Plan. To the gross-up or reimbursement of Taxes under Section 409A or 4999 Company’s Knowledge, there are no unasserted claims of the Code type that would be required to be disclosed in Schedule 5.14 if pending or otherwisethreatened that are considered probable of assertion and that if asserted would have at least a reasonable possibility of an adverse determination.
Appears in 1 contract
Benefit Plans. (a) Schedule 3.14(a) sets forth a true and complete list of all material “employee benefit plans” within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (ERISA), and all other material written compensation and benefit plans, agreements, policies or arrangements (i) Section 3.2(j)(i) of the Parent Disclosure Letter contains a trueestablished, complete and correct list of each Benefit Plan sponsoredmaintained, maintained sponsored or contributed by Parent or any of its Subsidiaries, or which Parent or any of its Subsidiaries is obligated to sponsor, maintain or contribute to, (or with respect to which Parent any obligation to contribute has been undertaken) by the Company or its Subsidiaries otherwise on behalf of any employee, director or other individual service provider of the Company or its Subsidiaries or their beneficiaries, or (ii) with respect to which the Company or its Subsidiaries has any material liability on behalf of any such employee, director or other individual service provider or beneficiary (the “Parent each, a Company Benefit Plans”Plan). No Parent The Company is in compliance with all applicable Laws for each Company Benefit Plan that is established or maintained outside of the United States or primarily for the benefit of current or former employees of Parent or any of its Subsidiaries residing who are regularly employed outside of the United StatesStates (each, a Foreign Benefit Plan).
(iib) Parent has delivered or Complete and accurate copies of all Company Benefit Plans and all material related trust agreements, insurance contracts and summary plan descriptions for each Company Benefit Plan, the most recently filed Form 5500 for each Company Benefit Plan that is an “employee benefit plan” as defined in Section 3(3) of ERISA (and subject to Title I thereof) and the annual information forms for any Foreign Benefit Plan and, in respect of any Foreign Benefit Plan where actuarial valuations are required by applicable Law, the most recent such valuation, have been made available to the Company prior to the date of this Agreement a true, correct and complete copy of each Parent Benefit Plan currently in effect and, with respect thereto, if applicable, (A) all amendments, the current trust (or other funding vehicle) agreements, and the most recent summary plan descriptions, (B) 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 Parent Benefit Plan, (C) the most recent determination letter from the IRS (if applicable) for such Parent Benefit Plan and (D) any notice to or from the IRS or any office or representative of the Department of Labor relating to any unresolved compliance issues in respect of such Parent Benefit PlanBuyer.
(iiic) Except as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on Parent, (A) each Parent 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 thereunder, (B) each Parent Each Company Benefit Plan intended to be qualified qualify under Section 401(a) of the Code has received a favorable determination letter (or the prototype plan upon which it is based has received an opinion letter as to its qualifications letter) from the IRS Internal Revenue Service upon which it may rely regarding its qualified status under the Code, and, to the Knowledge of the Company, no event has occurred, that could cause the loss of such qualification or the imposition of any material penalty or Tax liability. Each Foreign Benefit Plan that is required to be registered under any non-U.S. Law has received registration letters (or other confirmation of registration) from the applicable Governmental Entity to the effect that such Foreign Benefit Plan is so registered. With respect to any Foreign Benefit Plan that is or has qualified for favorable Tax treatment in the jurisdiction in which it is operated, such Foreign Benefit Plan has not ceased to so qualify and, to the Knowledge of the Company, no event has occurred, which could cause such favorable treatment to be withdrawn.
(d) No Company Benefit Plan is a “multiemployer plan” (within the meaning of Section 3(37) of ERISA) or is entitled otherwise a plan which is subject to rely on an advisory Section 412 of the Code, Section 302 of ERISA or opinion letter as to its qualifications issued Title IV of ERISA, and neither the Company nor any ERISA Affiliate has had any liability 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 adversely affect the qualified status of any such plan, plan at any time within the past six (C6) neither Parent nor any years. Any liability of the Company under a multiemployer plan that is a Foreign Benefit Plan is limited to the contribution obligation under a collective bargaining agreement to which the Company or its Subsidiaries has engaged are a party. For purposes of the foregoing, ERISA Affiliate means a corporation which is or was at any time a member of a controlled group of corporations with the Company within the meaning of Code Section 414(b), a trade or business which is or was under common control with the Company within the meaning of Code Section 414(c), or a member of an affiliated service group with the Company within the meaning of Code Sections 414(m) or (o).
(e) Except as would not result in a transaction that has resulted inMaterial Adverse Effect, or would reasonably be expected to result in, the assessment of a civil penalty upon Parent or any of its Subsidiaries pursuant to Section 409 or 502(i) of ERISA or a tax imposed pursuant to Section 4975 or 4976 of the Code that has not been satisfied in full, (D) there does not now exist, nor, to the knowledge of Parent, do any circumstances exist that would reasonably be expected to result in, any Controlled Group Liability that would be a liability of Parent, any of its Subsidiaries or any of their respective ERISA Affiliates, (E) all payments required to be made by or with respect to each Parent Company Benefit Plan or by Law (including including, without limitation, all contributions, insurance premiums or intercompany charges) with respect to all prior periods have been timely made or paid by Parent or its Subsidiaries provided for in accordance with the provisions of each of the Parent Company Benefit Plans and Plans, applicable Law and GAAP (or, to the extent not required applicable with respect to be made any Foreign Benefit Plan, IFRS).
(f) No material proceeding has been asserted or paid on or before the date hereof, have been reflected on the books and records of Parent in accordance with GAAP and (F) there are no pending instituted or, to the knowledge Knowledge of Parentthe Company, threatened claims by or on behalf in writing against any of any Parent Company Benefit Plan, by any employee or beneficiary covered under any Parent Benefit Plan or otherwise involving any Parent Benefit Plan or any trusts related thereto Plans (other than routine claims for benefitsbenefits and appeals of such claims), any trustee or fiduciaries thereof, or any of the assets of any trust of any of Company Benefit Plans.
(ivg) None Except as would not result in material liability, each Company Benefit Plan complies in form and has been maintained and operated in all respects in accordance with its terms and applicable Law, including, without limitation, ERISA and the Code.
(h) To the Knowledge of Parentthe Company, no non-exempt “prohibited transaction,” within the meaning of Section 4975 of the Code and Section 406 of ERISA, has occurred or is reasonably expected to occur with respect to any Company Benefit Plan.
(i) No Company Benefit Plan is under, and neither the Company nor any of its Subsidiaries Subsidiaries, has received any notice of, an audit or investigation by the Internal Revenue Service, Department of Labor or any other Governmental Entity, and no such completed audit, if any, has resulted in the imposition of their respective ERISA Affiliates maintainsany material Tax or penalty or the requirement to make material payments under, contributes or implement material changes to, any Company Benefit Plan.
(j) No Company Benefit Plan provides post-retirement health and welfare benefits to any employee of the Company or participates inits Subsidiaries, 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 plan subject to Title IV or except as required under Section 302 of ERISA or Section 412 or Section 430 4980B of the Code, (B) a “multiple employer welfare arrangement” (as defined in Section 3(40) Part 6 of ERISA), a “multiple employer plan” (as defined in Section 413(c) Title I of the Code) ERISA or a “multiemployer plan” (as defined in Section 3(37) of ERISA), or (C) any plan or arrangement which provides for post-employment or post-retirement medical or welfare benefits for retired or former employees or beneficiaries or dependents thereof, except pursuant to Section 4980B of the Code or other applicable Law.
(v) With respect to each Parent Benefit Plan that is subject to Title IV or Section 302 of ERISA or Section 412 or 430 of the Code (each, a “Parent Title IV Plan”): (A) there does not exist any failure to meet the “minimum funding standard” of Section 412 of the Code or 302 of ERISA (whether or not waived), (B) no such plan is in “at-risk” status for purposes of Section 430 of the Code, (C) the present value of accrued benefits under such Parent Title IV Plan, based upon the actuarial assumptions used for funding purposes in the most recent actuarial report prepared by such Parent Title IV Plan’s actuary with respect to such Parent Title IV Plan, did not, as of its latest valuation date, exceed the then current fair market value of the assets of such Parent Title IV Plan allocable to such accrued benefits, (D) no reportable event within the meaning of Section 4043(c) of ERISA has occurred, (E) all premiums to the PBGC have been timely paid in full, (F) no liability (other than for premiums to the PBGC) under Title IV of ERISA has been or is expected to be incurred by Parent or any of its ERISA Affiliates, and (G) the PBGC has not instituted proceedings to terminate any such Parent Title IV Plan and, to the knowledge of Parent, no circumstances exist which could serve as a basis for the institution of such proceedings.
(vik) Except as set forth on Section 3.2(j)(vi) of the Parent Disclosure LetterSchedule 3.14(k), neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby (either alone by this Agreement alone, or in conjunction combination with any other event) event (where such other event would not alone have an effect described in this sentence), will (A) increase any benefits otherwise payable or trigger any other obligation under any Parent Benefit Plan, (B) result in any acceleration of not accelerate the time of payment, funding payment or vesting or increase the amount, or require the funding, of compensation or benefits due to any such benefits employee, director or (C) result in any limitation on other individual service provider of the right of Parent Company or any of its Subsidiaries to amend, merge, terminate or receive a reversion of assets from under any Parent Company Benefit Plan or related trustan obligation to employ any such person for any particular length of time.
(viil) No Parent compensatory amount that would be received as a result of the consummation of the transactions contemplated by this Agreement by any employee or independent contractor of the Company or its Subsidiaries under any Company Benefit Plan provides for would reasonably be expected to be nondeductible by reason of Section 280G of the gross-up or reimbursement Code.
(m) Each Company Benefit Plan that constitutes a “nonqualified deferred compensation plan” within the meaning of Taxes under Section 409A or 4999 of the Code and that is subject to Section 409A of the Code has been operated and maintained in all material respects in operational and documentary compliance with Section 409A of the Code and applicable guidance thereunder during the respective time periods in which such operational or otherwisedocumentary compliance has been required. There is no contract to which the Company or any of its Subsidiaries is a party or by which it is bound to compensate any employee for excise Taxes paid pursuant to Section 409A of the Code.
Appears in 1 contract
Benefit Plans. (ia) Section 3.2(j)(iAll “employee benefit plans” (within the meaning of section 3(3) of the Parent Disclosure Letter contains a trueERISA) and all stock purchase, complete stock option, severance, employment, change-in-control, fringe benefit, bonus, incentive, deferred compensation, employee loan, and correct list all other employee benefit plans, agreements, programs, policies or other arrangements, and whether or not subject to ERISA, under which any employee, former employee, director, officer, independent contractor or consultant of each Benefit Plan sponsored, maintained or contributed by Parent or any of its Subsidiaries, or which Parent or any of its Subsidiaries is obligated to sponsor, maintain or contribute to, or with respect to which Parent PSB or its Subsidiaries otherwise has any present or future right to benefits or under which PSB or its Subsidiaries has any present or future liability (are referred to herein as the “Parent Benefit PSB Plans”). No Parent Benefit .” Each material PSB Plan is established or maintained outside of identified in the United States or for the benefit of current or former employees of Parent or any of its Subsidiaries residing outside of the United StatesPSB Disclosure Letter.
(iib) Parent With respect to each material PSB Plan, PSB has delivered furnished or made available to the Company prior to the date of this Agreement River Financial a truecurrent, correct accurate and complete copy of each Parent Benefit Plan currently in effect thereof and, with respect theretoto the extent applicable: (i) any related trust agreement or other funding instrument, (ii) the most recent determination or opinion letter of the IRS, if applicable, (Aiii) all amendments, the current trust (or other funding vehicle) agreements, and the most recent summary plan descriptionsdescription, (iv) any other written communication (or a description of any oral communication) by PSB or its Subsidiaries to employees of PSB or its Subsidiaries, including concerning the extent of any post-retirement medical or life insurance benefits provided under a PSB Plan, and (v) for the most recent year (A) the Form 5500 and attached schedules, (B) the most recent annual report (Form 5500 series including, where applicable, all schedules audited financial statements and actuarial and accountants’ reports) filed with the Department of Labor and the most recent actuarial report or other financial statement relating to such Parent Benefit Plan, (C) the most recent determination letter from the IRS (if applicable) for such Parent Benefit Plan and (D) any notice to or from the IRS or any office or representative of the Department of Labor relating to any unresolved compliance issues in respect of such Parent Benefit Planactuarial valuation reports.
(iiic) Except as would not reasonably be expected With respect to haveeach PSB Plan, except to the extent that the inaccuracy of any of the representations set forth in this Section, individually or in the aggregate, have not had a Material Adverse Effect on Parent, Effect:
(Ai) each Parent Benefit PSB Plan has been maintained established and administered in compliance accordance with its terms and in compliance with the applicable Law, including, but not limited to, provisions of ERISA and the Code and in each case other applicable Law, and all contributions required to be made under the regulations thereunder, terms of any PSB Plan have been timely made;
(Bii) each Parent Benefit PSB Plan intended to be qualified under Section 401(a) of the Code has received a favorable determination or determination, advisory and/or opinion letter letter, as to its qualifications applicable, from the IRS that it is so qualified and, to the knowledge of PSB, nothing has occurred, whether by action or is entitled failure to rely on an advisory or opinion act, since the date of such letter as to its qualifications 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 adversely affect cause the loss of such qualified status of such PSB Plan;
(iii) there is no Litigation (including any such planinvestigation, (Caudit or other administrative proceeding) neither Parent nor any by the Department of its Subsidiaries has engaged in a transaction that has resulted in, or would reasonably be expected to result inLabor, the assessment of a civil penalty upon Parent PBGC, the IRS or any of its Subsidiaries pursuant other Agency or by any plan participant or beneficiary pending or threatened relating to Section 409 or 502(i) of ERISA or a tax imposed pursuant to Section 4975 or 4976 of the Code that has not been satisfied in full, (D) there does not now exist, nor, to the knowledge of Parent, do any circumstances exist that would reasonably be expected to result inPSB Plans, any Controlled Group Liability that would be a liability of Parent, any of its Subsidiaries or any of their respective ERISA Affiliates, (E) all payments required to be made by or fiduciaries thereof with respect to each Parent Benefit Plan (including all contributions, insurance premiums their duties to PSB Plans or intercompany charges) with respect to all prior periods have been timely made or paid by Parent or its Subsidiaries in accordance with the provisions assets of each any of the Parent 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 Parent in accordance with GAAP and (F) there are no pending or, to the knowledge of Parent, threatened claims by or on behalf of any Parent Benefit Plan, by any employee or beneficiary covered trusts under any Parent Benefit Plan or otherwise involving any Parent Benefit Plan or any trusts related thereto PSB Plans (other than routine claims for benefits).) nor are there facts or circumstances that exist that could reasonably give rise to any such Litigation. No written or oral communication has been received from the PBGC in respect of any PSB 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 plan in connection with the transactions contemplated herein; and
(iv) None no “reportable event” (as such term is defined in Section 4043 of Parent, any of its Subsidiaries or any of their respective ERISA Affiliates maintains, contributes to, or participates in, or has ever during the past six ERISA) that could reasonably be expected to result in liability; no nonexempt “prohibited transaction” (6) years maintained, contributed to, or participated in, or otherwise has any obligation or liability as such term is defined in connection with: (A) a plan subject to Title IV or Section 302 406 of ERISA or and Section 412 or Section 430 4975 of the Code, (B) a ); and no “multiple employer welfare arrangementaccumulated funding deficiency” (as defined in Section 3(40) 302 of ERISA), a “multiple employer plan” (as defined in ERISA and Section 413(c) 412 of the Code) or a failure to timely satisfy any “multiemployer planminimum funding standard” (as defined in within the meaning of Section 3(37) 302 of ERISAERISA or Sections 412 or 430 of the Code), in each case whether or not waived, has occurred with respect to any PSB Plan.
(Ci) Each PSB Plan pursuant to which PSB or any plan of its Subsidiaries could incur any current or arrangement which provides for projected liability in respect of post-employment or post-retirement medical health, medical, or welfare life insurance benefits for current, former, or retired employees of PSB or former employees or beneficiaries or dependents thereof, any of its Subsidiaries (except pursuant as required to avoid an excise Tax under Section 4980B of the Code or other otherwise except as may be required by applicable Law) (“retiree medical benefits”), and (ii) the provisions of each PSB Plan which provide retiree medical benefits may be terminated at any time by PSB or its Subsidiaries without liability to PSB or its Subsidiaries.
(ve) With respect to each Parent Benefit Plan that is subject to Title IV or Section 302 of ERISA or Section 412 or 430 of the Code (each, a “Parent Title IV Plan”): (A) there does not exist any failure to meet the “minimum funding standard” of Section 412 of the Code or 302 of ERISA (whether or not waived), (B) no such plan is in “at-risk” status for purposes of Section 430 of the Code, (C) the present value of accrued benefits under such Parent Title IV Plan, based upon the actuarial assumptions used for funding purposes in the most recent actuarial report prepared by such Parent Title IV Plan’s actuary with respect to such Parent Title IV Plan, did not, as of its latest valuation date, exceed the then current fair market value of the assets of such Parent Title IV Plan allocable to such accrued benefits, (D) no reportable event within the meaning of Section 4043(c) of ERISA has occurred, (E) all premiums to the PBGC have been timely paid in full, (F) no liability (other than for premiums to the PBGC) under Title IV of ERISA has been or is expected to be incurred by Parent or Neither PSB nor any of its ERISA AffiliatesSubsidiaries 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 a result of the transactions contemplated by this Agreement, and (G) the PBGC has not instituted proceedings to terminate any such Parent Title IV Plan and, to the knowledge of Parent, no circumstances exist which could serve as a basis for the institution of such proceedings.
(vi) Except as set forth on Section 3.2(j)(vi) of the Parent Disclosure Letter, neither the execution and delivery of this Agreement, PSB shareholder approval of this Agreement nor the consummation of the transactions contemplated hereby (either alone or in conjunction with any other event) will (A) result in severance pay or any increase in severance pay upon any benefits otherwise payable or trigger any other obligation under any Parent Benefit Plantermination of employment after the date of this Agreement, (B) accelerate the time of payment or vesting or result in any acceleration 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 time of paymentPSB Plans, funding or vesting of any such benefits or (C) result in any limitation on limit or restrict the right of Parent PSB to merge, amend, or terminate any of the PSB Plans, (D) cause PSB to record additional compensation expense on its Subsidiaries income statement with respect to amendany outstanding stock option or other equity-based award, merge, terminate or receive a reversion (E) result in the payment of assets from any Parent Benefit Plan or related trust.
(vii) No Parent Benefit Plan provides for the gross-up or reimbursement of Taxes payments which would not be deductible under Section 409A or 4999 280G of the Code or otherwiseCode.
Appears in 1 contract
Benefit Plans. (ia) Section 3.2(j)(i) Except for the Existing Plans, , the Company does not maintain any Benefit Plan. The Seller has delivered to Purchaser true and correct copies of each of the Parent Disclosure Letter contains a trueExisting Plans for which written documentation exists, complete together with copies of any summary plan or similar description thereof and correct list the most recent actuarial reports, reviewed financial statements and Form 5500 and schedules, if any, with respect thereto. Each of each the Existing Plans is in compliance in all respects with applicable Law, including without limitation, the Code and ERISA, and any Benefit Plan sponsored, maintained or contributed terminated by Parent or any of its Subsidiaries, or which Parent or any of its Subsidiaries is obligated to sponsor, maintain or contribute to, or with respect to which Parent or its Subsidiaries otherwise has any liability (the “Parent Benefit Plans”). No Parent Benefit Plan is established or maintained outside of the United States or for the benefit of current or former employees of Parent or any of its Subsidiaries residing outside of the United States.
(ii) Parent has delivered or made available to the Company prior to during the five-year period ending with the date of this Agreement a true, correct and complete copy of each Parent Benefit Plan currently in effect and, with respect thereto, if applicable, (A) all amendments, the current trust (or other funding vehicle) agreements, and the most recent summary plan descriptions, (B) 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 Parent Benefit Plan, (C) the most recent determination letter from the IRS (if applicable) for such Parent Benefit Plan and (D) any notice to or from the IRS or any office or representative of the Department of Labor relating to any unresolved compliance issues in respect of such Parent Benefit Plan.
(iii) Except as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on Parent, (A) each Parent Benefit Plan has been maintained and administered was in compliance with its terms such Law and was terminated in compliance with applicable such Law, including, but not limited to, ERISA and . All of the Code and in each case the regulations thereunder, (B) each Parent Benefit Plan Existing Plans which are intended to be qualified under meet the requirements of Section 401(a301(a) of the Code have been determined by the Internal Revenue Service to be “qualified” within the meaning of Section 301(a) of the Code or timely application has received a favorable determination or opinion letter as to its qualifications from the IRS or is entitled to rely on an advisory or opinion letter as to its qualifications issued with respect to an IRS approved master and prototype or volume submitter planbeen made therefor, and there are no existing circumstances or any events that have occurred that facts Known to the Seller which would reasonably be expected to adversely affect the qualified status of such Existing Plans. The Company is not in default in any such plan, (C) neither Parent nor respect in performing its obligations under any of its Subsidiaries has engaged in a transaction that has resulted inthe Existing Plans, or would reasonably be expected to result in, the assessment of a civil penalty upon Parent or any of its Subsidiaries pursuant to Section 409 or 502(i) of ERISA or a tax imposed pursuant to Section 4975 or 4976 of the Code that has not been satisfied in full, (D) there does not now exist, nor, to the knowledge of Parent, do any circumstances exist that would reasonably be expected to result in, any Controlled Group Liability that would be a liability of Parent, any of its Subsidiaries or any of their respective ERISA Affiliates, (E) all payments required to be made by or with respect to each Parent Benefit Plan (including and all contributions, insurance premiums payments, liabilities or intercompany charges) with respect obligations under any Existing Plans that are required to all prior periods have been timely made or paid by Parent or its Subsidiaries in accordance with the provisions of each of the Parent Benefit Plans and applicable Law or, to the extent not required to be made or paid on or before the date hereof, hereof have been reflected paid or that are required to have been accrued on the date hereof on the books and records of Parent in accordance account of the Company by GAAP applied consistently with GAAP and the past practice of the Company for year-end financial statements have been so accrued.
(Fb) there are no pending orWith respect to each Existing Plan, all reports required under ERISA or any other applicable Law or regulation to the knowledge of Parent, threatened claims be filed by or on behalf of any Parent Benefit Plan, by any employee or beneficiary covered under any Parent Benefit such Plan or otherwise involving any Parent Benefit Plan or any trusts related thereto (other than routine claims for benefits)with the relevant governmental authority the failure of which to file could reasonably result in liability to the Company have been duly filed and all such reports are true and correct as of the date given.
(ivc) None of Parent, Neither the Company nor any of its Subsidiaries ERISA Affiliates nor any Existing Plan has engaged in a “prohibited transaction” (as such term is defined in Section 3975 of the Code and Sections 306 and 308 of ERISA), which would subject the Company (after giving effect to any exemption) or any of their respective ERISA Affiliates maintains, contributes to, Existing Plan to the tax 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 plan subject to Title IV or penalty on prohibited transactions imposed by Section 302 of ERISA or Section 412 or Section 430 3975 of the Code, Section 502 of ERISA or any other liability.
(Bd) Except for the Company’s voluntary discontinuance of a non-matching 401-K Plan, due to five (5) years employee non-participation, no Existing Plan has been terminated, nor has any “multiple employer welfare arrangementaccumulated funding deficiency” (as defined in Section 3(40312(a) of the Code) been incurred (without regard to any waiver granted under Section 312 of the Code), and no funding waiver from the Internal Revenue Service has been received or requested with respect to any Existing Plan and neither the Company nor any of its ERISA Affiliates failed to make any contributions or to pay any amounts due and owing as required by Section 312 of the Code, Section 302 of ERISA or the terms of any Existing Plan prior to the due date of such contribution under Section 312 of the Code or Section 302 of ERISA, nor has there been any reportable event or any event requiring disclosure under Section 3031(c)(3)(C), 3063(a) or 3068(f) of ERISA with respect to any Existing Plan.
(e) The value of the assets of each Existing Plan which is a “defined benefit” plan (as defined in Section 3(35) of ERISA), a ) equaled or exceeded the present value of the “multiple employer planbenefit liabilities” (as defined in Section 413(c3001(a)(16) of ERISA) of each such plan as of the end of the preceding plan year, using the plan’s actuarial assumptions as in effect for such plan year.
(f) There are no claims (other than claims for benefits in the normal course), actions or lawsuits asserted or instituted against, and there are no pending or to the Knowledge of the Seller threatened litigation or claims against, the assets of any Existing Plan or against any fiduciary of such Existing Plan with respect to the operation of such Existing Plan, which, if adversely determined, could have an adverse effect on the business, operations, properties, assets or condition (financial or otherwise) of the CodeCompany.
(g) Except as specified otherwise in Schedule 3.24 attached to this Agreement, each of the Existing Plans can be terminated by the Company within a period of 30 days following the Closing Date, without payment of any additional compensation or amount or the additional vesting or acceleration of any benefits under any of such plans, and none of the transactions contemplated by this Agreement shall result in the acceleration of any payments under any Existing Plan.
(h) Neither the Company nor any of its ERISA Affiliates has incurred (a) any liability to the PBGC (other than routine claims and premium payments), (b) any withdrawal liability (and no event has occurred which, with the giving of notice under Section 3219 of ERISA, would result in such liability) under Section 3201 of ERISA as a “result of a complete or partial withdrawal (within the meaning of Section 3203 or 3205 of ERISA) from a multiemployer plan” (as defined plan described in Section 3(37) of ERISA)ERISA or (c) any liability under ERISA Section 3062 to the PBGC, or (C) any plan or arrangement which provides for post-employment or post-retirement medical or welfare benefits for retired or former employees or beneficiaries or dependents thereof, except pursuant to a trustee appointed under Section 4980B 3032 of the Code or other applicable LawERISA.
(vi) With respect Neither the Company nor any of its ERISA Affiliates nor any organization to each Parent Benefit Plan that which the Company or any of its ERISA Affiliates is subject to Title IV a successor or parent corporation (as described in Section 302 3069(a) of ERISA or ERISA) has engaged in a transaction described in Section 412 or 430 3069 of the Code ERISA.
(each, a “Parent Title IV Plan”): (Aj) there The Company does not exist maintain and has not established any failure to meet the “minimum funding standardwelfare benefit plan” of Section 412 of the Code or 302 of ERISA (whether or not waived), (B) no such plan is in “at-risk” status for purposes of Section 430 of the Code, (C) the present value of accrued benefits under such Parent Title IV Plan, based upon the actuarial assumptions used for funding purposes in the most recent actuarial report prepared by such Parent Title IV Plan’s actuary with respect to such Parent Title IV Plan, did not, as of its latest valuation date, exceed the then current fair market value of the assets of such Parent Title IV Plan allocable to such accrued benefits, (D) no reportable event within the meaning of Section 4043(c3(1) of ERISA), other than those listed on Schedule 1.1 to this Agreement, which provides for continuing benefits or coverage for any participant or any beneficiary of a participant after such participant’s termination of employment except as may be required by the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”), and the regulations thereunder.
(k) The Company and each of its ERISA Affiliates maintaining a “welfare benefit plan” (within the meaning Section 3(1) of ERISA) has occurredcomplied with all applicable notice and continuation coverage requirements of COBRA and the regulations thereunder such that there would not result any tax, (E) all premiums penalty or liability to the PBGC have been timely paid in fullCompany.
(l) Neither the Company nor any of its ERISA Affiliates has any liability as a successor of any other organization to any Benefit Plan (or beneficiary, (Fsponsor, trustee or fiduciary of such plan) no pursuant to successor liability (other than for premiums to the PBGC) under rules of Title IV of ERISA has been or is expected to be incurred by Parent or any of its ERISA Affiliates, and federal common law. (G) the PBGC has not instituted proceedings to terminate any such Parent Title IV Plan and, to the knowledge of Parent, no circumstances exist which could serve as a basis for the institution of such proceedings.
(vim) Except as set forth on Section 3.2(j)(vi) of the Parent Disclosure Letter, 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) increase any benefits otherwise payable or trigger any other obligation under any Parent Benefit Plan, (B) result in any acceleration of the time of payment, funding or vesting of any such benefits or (C) result in any limitation on the right of Parent or any of its Subsidiaries to amend, merge, terminate or receive a reversion of assets from any Parent Benefit Plan or related trust.
(vii) No Parent Benefit Plan provides for the gross-up or reimbursement of Taxes under Section 409A or 4999 of the Code or otherwise.3.25
Appears in 1 contract
Benefit Plans. (ia) Section 3.2(j)(i) Schedule 5.12 sets forth a list and brief ------------- description of all Benefit Plans maintained or contributed to by the Parent Disclosure Letter contains a Company for the benefit of any of its officers or other employees. The Company has heretofore delivered to Cymedix true, complete and correct list copies of (i) each Benefit Plan sponsoredPlan, maintained or contributed by Parent or any of its Subsidiaries, or which Parent or any of its Subsidiaries is obligated to sponsor, maintain or contribute to, or with respect to which Parent or its Subsidiaries otherwise has any liability (the “Parent Benefit Plans”). No Parent Benefit Plan is established or maintained outside of the United States or for the benefit of current or former employees of Parent or any of its Subsidiaries residing outside of the United States.
(ii) Parent has delivered or made available to the Company prior to the date of this Agreement a true, correct and complete copy of each Parent Benefit Plan currently in effect and, with respect thereto, if applicable, (A) all amendments, the current trust (or other funding vehicle) agreements, and the most recent summary plan descriptions, (B) the most recent annual report (on 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 Internal Revenue Service with respect to such Parent each Benefit PlanPlan (if required), (Ciii) the most recent determination letter from the IRS (if applicable) summary plan description for such Parent each Benefit Plan for which a summary plan description is required and (Div) any notice to or from the IRS or any office or representative of the Department of Labor each trust agreement, group annuity contract and other financing and funding arrangement relating to any unresolved compliance issues in respect of such Parent Benefit Plan.
(iiib) Except as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on Parent, (A) each Parent Each Benefit Plan maintained or contributed to by the Company has been maintained and administered in compliance all material respects in accordance with its terms terms. The Company and all of its Benefit Plans are in compliance in all material respects with the applicable Law, including, but not limited to, provisions of ERISA and the Code Code. All material reports, returns and in each case the regulations thereunder, (B) each Parent Benefit Plan intended to be qualified under Section 401(a) of the Code has received a favorable determination or opinion letter as to its qualifications from the IRS or is entitled to rely on an advisory or opinion letter as to its qualifications issued similar documents 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 adversely affect the qualified status of any such plan, (C) neither Parent nor any of its Subsidiaries has engaged in a transaction that has resulted in, or would reasonably be expected to result in, the assessment of a civil penalty upon Parent or any of its Subsidiaries pursuant to Section 409 or 502(i) of ERISA or a tax imposed pursuant to Section 4975 or 4976 of the Code that has not been satisfied in full, (D) there does not now exist, nor, to the knowledge of Parent, do any circumstances exist that would reasonably be expected to result in, any Controlled Group Liability that would be a liability of Parent, any of its Subsidiaries or any of their respective ERISA Affiliates, (E) all payments Benefit Plans required to be made by filed with any Governmental Authority or with respect distributed to each Parent any Benefit Plan (including all contributions, insurance premiums or intercompany charges) with respect to all prior periods participant have been duly and timely made filed or paid by Parent or its Subsidiaries in accordance with the provisions of each of the Parent 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 Parent in accordance with GAAP and (F) there distributed. There are no lawsuits, actions, termination proceedings or other proceedings pending or, to the knowledge of Parentthe Company, threatened claims by against or on behalf of any Parent Benefit Plan, by any employee or beneficiary covered under any Parent Benefit Plan or otherwise involving any Parent Benefit Plan or any trusts related thereto (other than routine claims for benefits).
(iv) None of Parent, any of its Subsidiaries or any of their respective ERISA Affiliates 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 plan subject to Title IV or Section 302 of ERISA or Section 412 or Section 430 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 plan” (as defined in Section 3(37) of ERISA), or (C) any plan or arrangement which provides for post-employment or post-retirement medical or welfare benefits for retired or former employees or beneficiaries or dependents thereof, except pursuant to Section 4980B of the Code or other applicable Law.
(v) With respect to each Parent Benefit Plan that is subject to Title IV or Section 302 of ERISA or Section 412 or 430 of the Code (each, a “Parent Title IV Plan”): (A) there does not exist any failure to meet the “minimum funding standard” of Section 412 of the Code or 302 of ERISA (whether or not waived), (B) no such plan is in “at-risk” status for purposes of Section 430 of the Code, (C) the present value of accrued benefits under such Parent Title IV Plan, based upon the actuarial assumptions used for funding purposes in the most recent actuarial report prepared by such Parent Title IV Plan’s actuary with respect to such Parent Title IV Plan, did not, as of its latest valuation date, exceed the then current fair market value of the assets of such Parent Title IV Plan allocable to such accrued benefits, (D) no reportable event within the meaning of Section 4043(c) of ERISA has occurred, (E) all premiums to the PBGC have been timely paid in full, (F) no liability (other than for premiums to the PBGC) under Title IV of ERISA has been or is expected to be incurred by Parent or any of its ERISA Affiliates, and (G) the PBGC has not instituted proceedings to terminate any such Parent Title IV Plan Plans and, to the knowledge of Parentthe Company, there are no circumstances exist which could serve as investigations by any Governmental Authority or other claims (except claims for benefits payable in the normal operation of the Benefit Plans) pending or threatened against or involving any of its Benefit Plans or asserting any rights to benefits under any Benefit Plan that individually or in the aggregate would have a basis for Material Adverse Effect. To the institution knowledge of such proceedingsthe Company, there are no unasserted claims pending or threatened that if asserted would have at least a reasonable possibility of an adverse determination.
(vic) With respect to all Benefit Plans maintained or contributed to by the Company, (i) all contributions to and payments from the Benefit Plans required thereby or by ERISA section 302 or Code section 512 have been timely made, (ii) there has been no application for or waiver of the minimum funding standards imposed by Code section 512 and (iii) no Pension Plan has an Aaccumulated funding deficiency@ within the meaning of Code section 412(a) as of the most recent plan year.
(d) No Aprohibited transaction,@ as defined in Code section 4975 or ERISA section 406, has occurred that involves the assets of any Benefit Plan and that could subject the Company or any of its employees or, to the knowledge of the Company, a trustee, administrator or other fiduciary of any trusts created under any of its Benefit Plans to the tax or penalty on prohibited transactions imposed by ERISA section 4975 or the sanctions imposed under Title I of ERISA. No Pension Plan maintained by the Company has been terminated, nor has there been any Areportable event,@ as defined in ERISA section 4043 and the regulations thereunder, with respect thereto. Neither the Company nor any trustee, administrator or other fiduciary of any of its Benefit Plans nor any agent of any of the foregoing has engaged in any transaction or acted or failed to act in a manner that could subject the Company to any liability for breach of fiduciary duty under ERISA or any other applicable law.
(e) At no time during the last five years has the Company (i) been required to contribute to any multiemployer plan, as defined in ERISA section 4001(a)(3), for the benefit of any of its officers or other employees of the Company, (ii) incurred any withdrawal liability, within the meaning of ERISA section 4201, with respect to any that multiemployer plan, which liability has not been fully paid as of the date hereof, or (iii) announced an intention to withdraw, but not yet completed such withdrawal, from that multiemployer plan. If the Company were to make a complete withdrawal from any multiemployer plan, within the meaning of ERISA section 4203, the withdrawal liability would not exceed $50,000 in the aggregate.
(f) With respect to any Benefit Plan of the Company that is an employee welfare benefit plan, except as disclosed in Schedule 5.12, (i) it is ------------- not unfunded or funded through a welfare benefits fund, as defined in Code section 419(e), (ii) it organized as a group health plan, as defined in Code section 5000(b)(1), it complies in all material respects with the applicable requirements of Code section 4980B(f) and (iii) it may be amended or terminated without material liability to the Company.
(g) The Company has no current or projected liability or contingent obligation in respect of medical or other benefits for its retired or former employees.
(h) Except as set forth on Section 3.2(j)(viin Schedule 5.12, (i) no employee or former ------------- employee of the Parent Disclosure LetterCompany will become entitled to any bonus, neither the execution and delivery of this Agreement nor the consummation retirement, severance, job security or similar benefit or any enhanced benefit solely as a result of the transactions contemplated hereby (either hereby, alone or in conjunction with any other eventevents or occurrences, and (ii) will (A) increase no amount payable to any benefits otherwise payable or trigger any other obligation employee under any Parent Benefit Plan, Plan or other arrangement of the Company will fail to be deductible by reason of Code section 280G.
(Bi) The Company has not (i) engaged in a transaction described in ERISA section 4069 that could subject it to liability at any time after the date hereof or (ii) engaged in any act or omission that could result in any acceleration of fines, penalties, taxes or related charges under ERISA.
(j) No compensation payable by the time of payment, funding or vesting of any such benefits or (C) result in any limitation on the right of Parent or Company to any of its Subsidiaries to amendemployees under any existing contract, merge, terminate or receive a reversion of assets from any Parent Benefit Plan or related trust.
other employment arrangement or understanding (vii) No Parent Benefit Plan provides for the gross-up or reimbursement of Taxes under Section 409A or 4999 including by reason of the transactions contemplated hereby) would be subject to disallowance under Code or otherwisesection 162(m).
Appears in 1 contract
Samples: Merger Agreement (International Nursing Services Inc)
Benefit Plans. (ia) Section 3.2(j)(i3.13(a) of the Parent Company Disclosure Letter contains a true, complete and correct list lists each of each Benefit Plan sponsored, maintained or contributed by Parent or any of its Subsidiaries, or which Parent or any of its Subsidiaries is obligated to sponsor, maintain or contribute to, or with respect to which Parent or its Subsidiaries otherwise has any liability (the “Parent Benefit Plans”). No Parent Benefit Plan is established or maintained outside , and separately indicates which of the United States or for Benefit Plans are multiemployer plans within the benefit meaning of current or former employees Section 3(37) of Parent or any of its Subsidiaries residing outside ERISA (“Company Multiemployer Plans”) and which of the United States.
(ii) Parent Benefit Plans are Foreign Plans. Other than Company Multiemployer Plans, the Company has delivered furnished or made available to Parent copies of the Company prior to the date of this Agreement a true, correct Benefit Plans and complete copy of each Parent Benefit Plan currently in effect and, with respect thereto, if applicable, (A) all amendments, the current trust (or other funding vehicle) agreements, and the most recent summary plan descriptions, (B) the most recent annual report (Form 5500 series includingamendments thereto together with, where applicable, all schedules and actuarial and accountants’ reports) filed with the Department of Labor and the each Benefit Plan’s most recent actuarial report or other financial statement relating to such Parent Benefit PlanForm 5500, (Csummary plan description and any summaries of material modifications thereto. Section 3.13(a) the most recent determination letter from the IRS (if applicable) for such Parent Benefit Plan and (D) any notice to or from the IRS or any office or representative of the Department Company Disclosure Letter identifies each of Labor relating the Benefit Plans that is (i) an ERISA Plan that is intended to any unresolved compliance issues in respect be qualified under Section 401(a) of such Parent Benefit Planthe Code or (ii) a Foreign Plan that provides for defined benefit pension benefits.
(iiib) Except as would not reasonably be expected to haveTo the Knowledge of the Company, individually or in the aggregate, a Material Adverse Effect on Parent, all Benefit Plans other than Company Multiemployer Plans (A“Company Benefit Plans”) each Parent Benefit Plan has been maintained and administered are in compliance in all material respects with its terms and with applicable LawERISA, including, but not limited to, ERISA and the Code and in each case the regulations thereunder, (B) each Parent other applicable Laws. Each Company Benefit Plan that is intended to be qualified under Section 401(a) of the Code has received a favorable determination or opinion letter as to its qualifications from the IRS or Internal Revenue Service that the Benefit Plan is entitled to rely on an advisory or opinion letter as to its qualifications issued with respect to an IRS approved master so qualified and prototype or volume submitter planall related trusts are exempt from U.S. federal income taxation under Section 501(a) of the Code, and there are no existing neither the Company nor any of its Subsidiaries, as applicable, is aware of any circumstances or any events that have occurred that reasonably would reasonably be expected to adversely affect cause the qualified status loss of any such planqualification.
(c) As of the date hereof, there is no material pending or, to the Knowledge of the Company threatened, litigation relating to the Company Benefit Plans, other than routine claims for benefits.
(Cd) neither Parent Neither the Company nor any of its Subsidiaries has engaged in any express commitment to modify, change or terminate any Company Benefit Plan, other than with respect to a transaction that has resulted inmodification, change or termination required by ERISA or the Code, or would any other Applicable Law or administrative changes that do not materially increase the liabilities or obligations under any such plans.
(e) To the Company’s Knowledge, no condition exists, and no event has occurred, with respect to any Company Multiemployer Plan that could reasonably be expected to result in, the assessment present a material risk of a civil penalty upon Parent complete or any partial withdrawal under subtitle E of its Subsidiaries pursuant to Section 409 or 502(i) Title IV of ERISA or a tax imposed pursuant to Section 4975 or 4976 that could result in any liability of the Code that has not been satisfied in full, (D) there does not now exist, nor, to the knowledge of Parent, do any circumstances exist that would reasonably be expected to result in, any Controlled Group Liability that would be a liability of ParentCompany, any of its Subsidiaries or any of their respective ERISA AffiliatesAffiliates in respect of such Company Multiemployer Plan that could, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, and neither the Company and its Subsidiaries nor any ERISA Affiliate has, within the preceding six years, withdrawn in a complete or partial withdrawal from any multiemployer plan (Eas defined in section 3(37) all payments required to be made by of ERISA) or incurred any material liability under section 4204 of ERISA that has not been satisfied in full.
(f) No Company Benefit Plan provides welfare benefits, including death or medical benefits (whether or not insured), with respect to each Parent Benefit Plan (including all contributionscurrent or former employees of the Company, insurance premiums or intercompany charges) with respect to all prior periods have been timely made or paid by Parent or its Subsidiaries or any ERISA Affiliate after retirement or other termination of service (other than (i) coverage mandated by applicable Laws, (ii) death benefits or retirement benefits under any “employee pension plan,” as that term is defined in accordance with the provisions Section 3(2) of each of the Parent Benefit Plans and applicable Law orERISA or under any analogous Foreign Plan, to the extent not required to be made or paid on or before the date hereof, have been reflected (iii) deferred compensation benefits accrued as liabilities on the books and records of Parent in accordance with GAAP and (F) there are no pending or, to the knowledge of Parent, threatened claims by or on behalf of any Parent Benefit Plan, by any employee or beneficiary covered under any Parent Benefit Plan or otherwise involving any Parent Benefit Plan or any trusts related thereto (other than routine claims for benefits).
(iv) None of ParentCompany, any of its Subsidiaries or any of their respective an ERISA Affiliates 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 plan subject to Title IV or Section 302 of ERISA or Section 412 or Section 430 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 plan” (as defined in Section 3(37) of ERISA)Affiliate, or (Civ) any plan or arrangement benefits, the full direct cost of which provides for post-employment or post-retirement medical or welfare benefits for retired is borne by the current or former employees employee (or beneficiaries or dependents beneficiary thereof, except pursuant to Section 4980B of the Code or other applicable Law)).
(v) With respect to each Parent Benefit Plan that is subject to Title IV or Section 302 of ERISA or Section 412 or 430 of the Code (each, a “Parent Title IV Plan”): (A) there does not exist any failure to meet the “minimum funding standard” of Section 412 of the Code or 302 of ERISA (whether or not waived), (B) no such plan is in “at-risk” status for purposes of Section 430 of the Code, (C) the present value of accrued benefits under such Parent Title IV Plan, based upon the actuarial assumptions used for funding purposes in the most recent actuarial report prepared by such Parent Title IV Plan’s actuary with respect to such Parent Title IV Plan, did not, as of its latest valuation date, exceed the then current fair market value of the assets of such Parent Title IV Plan allocable to such accrued benefits, (D) no reportable event within the meaning of Section 4043(c) of ERISA has occurred, (E) all premiums to the PBGC have been timely paid in full, (F) no liability (other than for premiums to the PBGC) under Title IV of ERISA has been or is expected to be incurred by Parent or any of its ERISA Affiliates, and (G) the PBGC has not instituted proceedings to terminate any such Parent Title IV Plan and, to the knowledge of Parent, no circumstances exist which could serve as a basis for the institution of such proceedings.
(vig) Except as set forth on Section 3.2(j)(vi3.13(g) of the Parent Company Disclosure Letter, neither the negotiation and execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby (will, either alone or in conjunction combination with any other event) will (A) increase any benefits otherwise payable or trigger any other obligation under any Parent Benefit Plan, (Bi) result in entitle any acceleration current or former employee, officer, consultant or director of the time of paymentCompany, funding or vesting of any such benefits or (C) result in any limitation on the right of Parent or any of its Subsidiaries or any ERISA Affiliate to amendseverance pay or any other similar termination payment, merge(ii) accelerate the time of payment or vesting, or increase the amount of or otherwise enhance any benefit due any such employee, officer, consultant or director, (iii) result in payments under any of the Benefit Plans which would not be deductible under Section 162(m) or Section 280G of the Code, or (iv) limit, in any way, the Surviving Corporation’s ability to amend or terminate or receive a reversion of assets from any Parent Benefit Plan or related trustPlan.
(viih) No Parent Except for Company Multiemployer Plans, at no time in the six year period preceding the Closing Date has the Company, any of its Subsidiaries or any ERISA Affiliate ever, maintained, established, sponsored, participated in or contributed to any ERISA Plan that is subject to Title IV of ERISA.
(i) Except as would not reasonably be expected to have a Company Material Adverse Effect, (i) each Benefit Plan provides for that is a Foreign Plan and related trust, if any, complies with and has been administered in compliance with (A) the gross-up or reimbursement of Taxes under Section 409A or 4999 Laws of the Code applicable foreign country and (B) their terms and the terms of any collective bargaining, collective labor or otherwiseworks council agreements and, in each case, neither the Company nor any of its Subsidiaries has received any written notice from any governmental authority questioning or challenging such compliance, (ii) each Benefit Plan that is a Foreign Plan which, under the Laws of the applicable foreign country, is required to be registered or approved by any governmental authority, has been so registered or approved, and (iii) all contributions to each Benefit Plan that is a Foreign Plan required to be made by the Company or its Subsidiaries through the Closing Date have been or shall be made or, if applicable, shall be accrued in accordance with country-specific accounting practices.
Appears in 1 contract
Benefit Plans. (ia) Schedule 2.06(a) includes a list of each material "employee pension benefit plan" (as defined in Section 3.2(j)(i3(2) of the Parent Disclosure Letter contains Employee Retirement Income Security Act of 1974, as amended ("ERISA")) (a true"PENSION PLAN"), complete material "employee welfare benefit plan" (as defined in Section 3(1) of ERISA) (a "WELFARE PLAN") and correct list of each Benefit Plan sponsoredother material plan, arrangement or policy relating to stock options, stock purchases, deferred compensation, severance, fringe benefits or other employee benefits, in each case maintained or contributed by Parent the Company or any of its Subsidiariessubsidiaries for the benefit of any present or former directors, officers or which Parent employees of the Company or any of its Subsidiaries is obligated to sponsor, maintain or contribute to, or with respect to which Parent or its Subsidiaries otherwise has any liability subsidiaries (all the “Parent Benefit Plans”foregoing being herein called "COMPANY BENEFIT PLANS"). No Parent Benefit Plan is established or maintained outside of the United States or for the benefit of current or former employees of Parent or any of its Subsidiaries residing outside of the United States.
(ii) Parent Seller has delivered or made available to the Purchaser copies of (i) each Company prior to the date of this Agreement a true, correct and complete copy of each Parent Benefit Plan currently in effect and, with respect thereto, if applicablePlan, (A) all amendments, the current trust (or other funding vehicle) agreements, and the most recent summary plan descriptions, (Bii) the most recent annual report (on Form 5500 series including, where applicable, all schedules and actuarial and accountants’ reports) filed with the Department of Labor and the most recent actuarial Internal Revenue Service ("IRS") with respect to each Company Benefit Plan (if any such report or other financial statement relating to such Parent Benefit Planwas required), (Ciii) the most recent summary plan description for each Company Benefit Plan for which such a summary plan description is required and (iv) each trust agreement and group annuity contract relating to any Company Benefit Plan.
(b) The Company's 401(k) Plan (as defined in Section 4.06(d)) has been administered substantially in accordance with its terms, except where the failure to be so administered would not reasonably be expected to have a Company Material Adverse Effect (as defined in Section 8.05(b)). The Company and its subsidiaries and the Company's 401(k) Plan are in substantial compliance with all applicable provisions of ERISA and the Code (as defined in Section 2.13(a)), except for instances of possible non compliance that would not reasonably be expected to have a Company Material Adverse Effect. The Company's 401(k) Plan has received a favorable determination letter from the IRS (if applicabledated November 26, 1997, to the effect that it is qualified and exempt from Federal Income Taxes under Sections 401(a) for such Parent Benefit Plan and (D) any notice to or from the IRS or any office or representative 501(a), respectively, of the Department Code, and no such determination letter has been revoked nor, to the knowledge of Labor the Company, has revocation been threatened. Except as would not reasonably be expected to have a Company Material Adverse Effect, there is no pending or, to the knowledge of Seller, threatened litigation relating to any unresolved compliance issues in respect of such Parent the Company Benefit PlanPlans.
(iiic) Except as would not reasonably be expected to have, individually or in the aggregate, have a Company Material Adverse Effect on ParentEffect, neither the Company nor any person or entity that, together with the Company or any of its subsidiaries, is treated as a single employer (a) "COMMONLY CONTROLLED ENTITY") under Section 414(b), (A) each Parent 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 thereunderc), (Bm) each Parent Benefit Plan intended to be qualified under Section 401(aor (o) of the Code has received a favorable determination or opinion letter as to its qualifications from the IRS or is entitled to rely on an advisory or opinion letter as to its qualifications 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 adversely affect the qualified status of any such plan, (C) neither Parent nor any of its Subsidiaries has engaged in a transaction that has resulted in, incurred or would reasonably be expected to result in, the assessment incur any liability under Title IV of a civil penalty upon Parent or any of its Subsidiaries pursuant to Section 409 or 502(iERISA.
(d) of ERISA or a tax imposed pursuant to Section 4975 or 4976 of the Code that has Except as would not been satisfied in full, (D) there does not now exist, nor, to the knowledge of Parent, do any circumstances exist that would reasonably be expected to result inhave a Company Material Adverse Effect, any Controlled Group Liability that would be a liability of Parent, any of its Subsidiaries or any of their respective ERISA Affiliates, (E) all payments required to be made by or with respect to each Parent Company Benefit Plan (including all contributions, insurance premiums or intercompany charges) with respect to all prior periods have been timely made or paid by Parent or its Subsidiaries in accordance with the provisions of each of the Parent Benefit Plans and applicable Law orthat is a Welfare Plan, to the extent not required to be made or paid on or before applicable, complies in all material respects with the date hereof, have been reflected on the books and records applicable requirements of Parent in accordance with GAAP and (F) there are no pending or, to the knowledge of Parent, threatened claims by or on behalf of any Parent Benefit Plan, by any employee or beneficiary covered under any Parent Benefit Plan or otherwise involving any Parent Benefit Plan or any trusts related thereto (other than routine claims for benefits).
(iv) None of Parent, any of its Subsidiaries or any of their respective ERISA Affiliates 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 plan subject to Title IV or Section 302 of ERISA or Section 412 or Section 430 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(c4980B(f) of the Code) or a “multiemployer plan” (as defined in Section 3(37) of ERISA), or (C) any plan or arrangement which provides for post-employment or post-retirement medical or welfare benefits for retired or former employees or beneficiaries or dependents thereof, except pursuant to Section 4980B of the Code or other applicable Law.
(v) With respect to each Parent Benefit Plan that is subject to Title IV or Section 302 of ERISA or Section 412 or 430 of the Code (each, a “Parent Title IV Plan”): (A) there does not exist any failure to meet the “minimum funding standard” of Section 412 of the Code or 302 of ERISA (whether or not waived), (B) no such plan is in “at-risk” status for purposes of Section 430 of the Code, (C) the present value of accrued benefits under such Parent Title IV Plan, based upon the actuarial assumptions used for funding purposes in the most recent actuarial report prepared by such Parent Title IV Plan’s actuary with respect to such Parent Title IV Plan, did not, as of its latest valuation date, exceed the then current fair market value of the assets of such Parent Title IV Plan allocable to such accrued benefits, (D) no reportable event within the meaning of Section 4043(c) of ERISA has occurred, (E) all premiums to the PBGC have been timely paid in full, (F) no liability (other than for premiums to the PBGC) under Title IV of ERISA has been or is expected to be incurred by Parent or any of its ERISA Affiliates, and (G) the PBGC has not instituted proceedings to terminate any such Parent Title IV Plan and, to the knowledge of Parent, no circumstances exist which could serve as a basis for the institution of such proceedings.
(vie) Except as set forth on Section 3.2(j)(vi) in Schedule 2.06(e), no employee of the Parent Disclosure Letter, neither the execution and delivery Company or any of this Agreement nor the consummation of the transactions contemplated hereby (either alone its subsidiaries will be entitled to any additional benefits or in conjunction with any other event) will (A) increase any benefits otherwise payable or trigger any other obligation under any Parent Benefit Plan, (B) result in any acceleration of the time of payment, funding payment or vesting of any such benefits or (C) result in under any limitation on the right of Parent or any of its Subsidiaries to amend, merge, terminate or receive a reversion of assets from any Parent Company Benefit Plan or related trust.
(vii) No Parent Benefit Plan provides for the gross-up or reimbursement of Taxes under Section 409A or 4999 as a result of the Code or otherwisetransactions contem plated by this Agreement.
Appears in 1 contract
Benefit Plans. (ia) Section 3.2(j)(iSet forth on Schedule 4.18(a) of the Parent Company Disclosure Letter contains Schedules is a true, true and complete and correct list of each material Benefit Plan sponsored, maintained or contributed by Parent or any of its Subsidiaries, or which Parent or any a Target Company as of its Subsidiaries is obligated to sponsor, maintain or contribute to, or with respect to which Parent or its Subsidiaries otherwise has any liability (the “Parent Benefit Plans”). No Parent Benefit Plan is established or maintained outside of the United States or for the benefit of current or former employees of Parent or any of its Subsidiaries residing outside of the United States.
(ii) Parent has delivered or made available to the Company prior to the date of this Agreement (each, a true, correct and complete copy of each Parent Benefit Plan currently in effect and, with respect thereto, if applicable, (A) all amendments, the current trust (or other funding vehicle) agreements, and the most recent summary plan descriptions, (B) 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 Parent “Company Benefit Plan, (C) the most recent determination letter from the IRS (if applicable) for such Parent Benefit Plan and (D) any notice to or from the IRS or any office or representative of the Department of Labor relating to any unresolved compliance issues in respect of such Parent Benefit Plan”).
(iiib) Except as would not reasonably be expected to have, individually or in the aggregate, have a Target Company Material Adverse Effect on ParentEffect, (Ai) each Parent of the Company Benefit Plan Plans has been maintained operated and administered in accordance with its terms, and is in compliance with its terms and with all applicable Law, including, but not limited to, ERISA and the Code and in all contributions to each case the regulations thereunder, (B) each Parent such Company Benefit Plan intended to be qualified under Section 401(a) of the Code has received a favorable determination or opinion letter as to its qualifications from the IRS or is entitled to rely on an advisory or opinion letter as to its qualifications issued with respect to an IRS approved master and prototype or volume submitter planhave been timely made, and there are no existing circumstances or any events that have occurred that would reasonably be expected to adversely affect the qualified status of any such plan, (C) neither Parent nor any of its Subsidiaries has engaged in a transaction that has resulted in, or would reasonably be expected to result in, the assessment of a civil penalty upon Parent or any of its Subsidiaries pursuant to Section 409 or 502(i) of ERISA or a tax imposed pursuant to Section 4975 or 4976 of the Code that has not been satisfied in full, (D) there does not now exist, norand, to the knowledge Knowledge of Parentany Target Company, do any circumstances exist no event, transaction or condition has occurred or exists that would reasonably be expected result in any Liability to result in, any Controlled Group Liability that would be a liability of Parent, any of its Subsidiaries or any of their respective ERISA Affiliates, Target Company under such Company Benefit Plan; (E) all payments required to be made by or with respect to each Parent Benefit Plan (including all contributions, insurance premiums or intercompany charges) with respect to all prior periods have been timely made or paid by Parent or its Subsidiaries in accordance with the provisions of each of the Parent 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 Parent in accordance with GAAP and (Fii) there are no pending or, to the knowledge Knowledge of Parentthe Target Company, threatened in writing Actions involving any Company Benefit Plan (except for routine claims by or on behalf for benefits payable in the normal operation of any Parent Company Benefit Plan) and to the Knowledge of the Target Company, no facts or circumstances exist that could give rise to any such Actions; (iii) no Company Benefit Plan is under investigation or audit by any Governmental Authority and, to the Knowledge of any Target Company, no such investigation or audit is contemplated or under consideration; and (iv) each Target Company and each of its Subsidiaries is in compliance with all applicable Laws and Contracts relating to its provision of any form of Social Insurance, and has paid, or made provision for the payment of, all Social Insurance contributions required under applicable Law and Contracts.
(c) Each Company Benefit Plan which is intended to be “qualified” within the meaning of Section 401(a) of the Code (i) has been determined by the IRS to be so qualified (or is based on a prototype plan which has received a favorable opinion letter) during the period from its adoption to the date of this Agreement and (ii) its related trust has been determined to be exempt from taxation under Section 501(a) of the Code or the Target Companies have requested an initial favorable IRS determination of qualification and/or exemption within the period permitted by applicable Law. To the Knowledge of any Target Company, no fact exists which could adversely affect the qualified status of such Company Benefit Plans or the exempt status of such trusts.
(d) With respect to each Company Benefit Plan, by any employee or beneficiary covered under any Parent the Company has provided to Purchaser accurate and complete copies, if applicable, of: (i) all material Company Benefit Plan documents related trust agreements or otherwise involving annuity Contracts (including any Parent Benefit Plan amendments, modifications or supplements thereto); (ii) all summary plan descriptions and material modifications thereto; (iii) the three (3) most recent Forms 5500, if applicable, and annual report, including all schedules thereto; (iv) the most recent annual and periodic accounting of plan assets, if applicable; (v) the three (3) most recent nondiscrimination testing reports; (vi) the most recent determination letter or opinion letter received from the IRS, if any; (vii) the most recent actuarial valuation, if any; and (viii) all material communications with any trusts related thereto Governmental Authority within the last three (other than routine claims for benefits)3) years.
(ive) None of ParentExcept as would not have a Target Company Material Adverse Effect, any of its Subsidiaries or any of their respective ERISA Affiliates 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 withwith respect to each Company Benefit Plan: (Ai) a plan subject to Title IV or no breach of fiduciary duty has occurred; and (ii) no prohibited transaction, as defined in Section 302 406 of ERISA or Section 412 or Section 430 4975 of the Code, has occurred, excluding transactions effected pursuant to a statutory or administration exemption.
(Bf) Except as disclosed in the Schedule 4.18(f) of the Company Disclosure Schedules, (i) no Company Benefit Plan is a “multiple employer welfare arrangement” (as defined in Section 3(40) of ERISA), a “multiple employer benefit plan” (as defined in Section 413(c414(j) of the Code) or ), a “multiemployer plan” (as defined in Section 3(37) of ERISA)) or a “multiple employer plan” (as described in Section 413(c) of the Code) or is otherwise subject to Title IV of ERISA or Section 412 of the Code; (ii) no Target Company has incurred any Liability or otherwise could have any Liability, contingent or otherwise, under Title IV of ERISA and no condition presently exists that is expected to cause such Liability to be incurred; and (iii) no Target Company currently maintains or has ever maintained, or is required currently or has ever been required to contribute to or otherwise participate in, a multiple employer welfare arrangement or voluntary employees’ beneficiary association as defined in Section 501(c)(9) of the Code.
(Cg) There is no arrangement under any Company Benefit Plan with respect to any employee that will result in the payment of any amount that by operation of Section 280G of the Code would not be deductible by the Target Companies and no arrangement exists pursuant to which a Target Company will be required to “gross up” or otherwise compensate any person because of the imposition of any excise tax on a payment to such person under to Sections 409A or 4999 of the Code.
(h) With respect to each Company Benefit Plan which is a “welfare plan” (as described in Section 3(1) of ERISA): (i) no such plan or arrangement which provides for post-employment or post-retirement medical or welfare death benefits for retired with respect to current or former employees or beneficiaries or dependents thereof, except pursuant to of a Target Company beyond their termination of employment (other than coverage mandated by Law. Each Target Company has complied with the provisions of Section 601 et seq. of ERISA and Section 4980B of the Code or other applicable Lawin all material respects.
(vi) With respect to each Parent Benefit Plan that is subject to Title IV or Section 302 of ERISA or Section 412 or 430 of the Code (each, a “Parent Title IV Plan”): (A) there does not exist any failure to meet the “minimum funding standard” of Section 412 of the Code or 302 of ERISA (whether or not waived), (B) no such plan is in “at-risk” status for purposes of Section 430 of the Code, (C) the present value of accrued benefits under such Parent Title IV Plan, based upon the actuarial assumptions used for funding purposes in the most recent actuarial report prepared by such Parent Title IV Plan’s actuary with respect to such Parent Title IV Plan, did not, as of its latest valuation date, exceed the then current fair market value of the assets of such Parent Title IV Plan allocable to such accrued benefits, (D) no reportable event within the meaning of Section 4043(c) of ERISA has occurred, (E) all premiums to the PBGC have been timely paid in full, (F) no liability (other than for premiums to the PBGC) under Title IV of ERISA has been or is expected to be incurred by Parent or any of its ERISA Affiliates, and (G) the PBGC has not instituted proceedings to terminate any such Parent Title IV Plan and, to the knowledge of Parent, no circumstances exist which could serve as a basis for the institution of such proceedings.
(vi) Except as set forth on Section 3.2(j)(vi) of the Parent Disclosure Letter, neither the execution and delivery of this Agreement nor the The consummation of the transactions contemplated hereby Mergers will not: (either alone i) entitle any individual to severance pay, unemployment compensation or in conjunction with any other eventbenefits or compensation; or (ii) will (A) increase any benefits otherwise payable or trigger any other obligation under any Parent Benefit Plan, (B) result in any acceleration of accelerate the time of paymentpayment or vesting, funding or vesting increase the amount of any such benefits compensation due, or (C) result in respect of, any limitation on the right of Parent or any of its Subsidiaries to amend, merge, terminate or receive a reversion of assets from any Parent Benefit Plan or related trustindividual.
(vii) No Parent Benefit Plan provides for the gross-up or reimbursement of Taxes under Section 409A or 4999 of the Code or otherwise.
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Benefit Plans. (i) Section 3.2(j)(i4.2(j)(i) of the Parent Disclosure Letter contains sets forth a true, true and complete and correct list of each Benefit Plan sponsored, maintained or contributed by Parent or any of its Subsidiaries, or which Parent or any of its Subsidiaries is obligated to sponsor, maintain or contribute to, or with respect to which Parent or its Subsidiaries otherwise has any liability (the “Parent Benefit Plans”). No material Parent Benefit Plan is established or, in the case of employment or maintained outside of offer letters or agreements, forms thereof that are substantially the United States or for the benefit of current or former employees of same as any individual agreements. With respect to each material Parent or any of its Subsidiaries residing outside of the United States.
(ii) Benefit Plan, Parent has delivered or made available available, upon request, to the Company prior to the date complete and accurate copies of this Agreement a true, correct and complete copy of each (A) such Parent Benefit Plan currently in effect and, with respect thereto, if to the extent applicable, (A) all amendments, the current trust (or other funding vehicle) agreements, and the most recent summary plan descriptionsdescription thereof, (B) the most recent annual report (Form 5500 series includingeach trust, where applicableinsurance, all schedules and actuarial and accountants’ reports) filed with the Department of Labor and the most recent actuarial report annuity or other financial statement relating to such Parent Benefit Planfunding contract related thereto, (C) the most recent determination letter from the IRS (if applicable) for such Parent Benefit Plan audited financial statements and actuarial or other valuation reports prepared with respect thereto, (D) any notice the most recent annual report on Form 5500 required to or from be filed with the IRS with respect thereto and (E) the most recently received IRS determination letter or any office or representative of the Department of Labor relating to any unresolved compliance issues in respect of such Parent Benefit Planopinion, if applicable.
(iiiii) Except as would not reasonably be expected to haveas, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect on Parent, (A) each of the Parent Benefit Plan Plans has been maintained operated and administered in compliance with its terms and in accordance with applicable LawApplicable Laws, includingincluding ERISA, but not limited to, ERISA and the Code and in each case the regulations thereunder, ; (B) no Parent Benefit Plan provides welfare benefits, including death or medical benefits (whether or not insured), with respect to current or former employees or directors of Parent 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 Parent or its subsidiaries as of the Effective Time pursuant to each Parent 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 IFRS; (D) neither Parent nor any of its subsidiaries has engaged in a transaction in connection with which Parent 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 Parent, 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 Parent Benefit Plans or any trusts related thereto.
(iii) Except as set forth on Section 4.2(j)(iii) of the Parent Disclosure Letter, none of Parent, any of its subsidiaries or any of 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 none of Parent, any of its subsidiaries or any of their respective ERISA Affiliates has, within the preceding six years, withdrawn in a complete or partial withdrawal from any Multiemployer Plan or incurred any liability under Section 4202 of ERISA.
(iv) Except as, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect on Parent, each of the Parent Benefit Plans intended to be qualified under “qualified” within the meaning of Section 401(a) of the Code has received a favorable determination or opinion letter as to its qualifications from the IRS or Code, (A) is entitled to rely on an advisory or opinion letter as to its qualifications issued with respect to an IRS approved master and prototype or volume submitter plan, so qualified and there are no existing circumstances or any events that have occurred that would reasonably be expected to adversely affect the qualified status of any such plan, (C) neither Parent nor any of its Subsidiaries has engaged in a transaction that has resulted in, or would reasonably be expected to result in, the assessment of a civil penalty upon Parent or any of its Subsidiaries pursuant to Section 409 or 502(i) of ERISA or a tax imposed pursuant to Section 4975 or 4976 of the Code that has not been satisfied in full, (D) there does not now exist, nor, to the knowledge of Parent, do any circumstances exist that would reasonably be expected to result in, any Controlled Group Liability that would be a liability of Parent, any of its Subsidiaries or any of their respective ERISA Affiliates, (E) all payments required to be made by or with respect to each Parent Benefit Plan (including all contributions, insurance premiums or intercompany charges) with respect to all prior periods have been timely made or paid by Parent or its Subsidiaries in accordance with the provisions of each of the Parent Benefit Plans plan 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 Parent in accordance with GAAP and (F) there are no pending or, to the knowledge of Parent, threatened claims by or on behalf of any Parent Benefit Plan, by any employee or beneficiary covered under any Parent Benefit Plan or otherwise involving any Parent Benefit Plan or any trusts related thereto (other than routine claims for benefits).
(iv) None of Parent, any of its Subsidiaries or any of their respective ERISA Affiliates 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 plan subject to Title IV or Section 302 of ERISA or Section 412 or Section 430 of the Code, (B) has received a “multiple employer welfare arrangement” (favorable determination letter or opinion letter as defined in Section 3(40) of ERISA), a “multiple employer plan” (as defined in Section 413(c) of the Code) or a “multiemployer plan” (as defined in Section 3(37) of ERISA), or (C) any plan or arrangement which provides for post-employment or post-retirement medical or welfare benefits for retired or former employees or beneficiaries or dependents thereof, except pursuant to Section 4980B of the Code or other applicable Lawits qualification.
(v) With respect to Section 4.2(j)(v) of the Parent Disclosure Letter sets forth each Parent Benefit Plan that is subject to Section 302 or Title IV or Section 302 of ERISA or Section 412 412, 430 or 430 4971 of the Code (each, a “Parent Title IV Plan”): ). With respect to each Parent Title IV Plan, except for matters that, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect on Parent, (A) there does not exist any failure to meet accumulated funding deficiency within the “minimum funding standard” meaning of Section 412 of the Code or Section 302 of ERISA (ERISA, whether or not waived), (B) no such plan Parent Title IV Plan is currently in “at-at risk” status for purposes within the meaning of Section 430 of the CodeCode or Section 303(i) of ERISA, (C) the present value of accrued benefits under such Parent Title IV Plan, based upon the actuarial assumptions used for funding purposes in the most recent actuarial report prepared by such Parent Title IV Plan’s actuary with respect to such Parent Title IV Plan, did not, as of its latest valuation date, exceed the then current fair market value of the assets of such Parent 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, (D) none of Parent, 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) under Title IV of ERISA has been or or, to the knowledge of Parent, is expected to be incurred by Parent or any of its ERISA Affiliates, subsidiaries and (G) the PBGC has not instituted proceedings to terminate any such Parent Title IV Plan andPlan. Except for matters that, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect on Parent, 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 knowledge Closing of Parent, no circumstances exist 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 Parent Title IV Plan, or any material change in the manner in which could serve as a contributions to any Parent Title IV Plan are made or the basis for the institution of on which such proceedingscontributions are determined.
(vi) Except as set forth on Section 3.2(j)(vi) of the Parent Disclosure Letter, neither Neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby Transactions (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 Parent or its subsidiaries under any Parent Benefit Plan or otherwise, (B) increase any benefits otherwise payable or trigger any other obligation under any Parent Benefit Plan, Plan or (BC) result in any acceleration of the time of payment, funding or vesting of any such benefits or (C) result in any limitation on the right of Parent or any of its Subsidiaries to amend, merge, terminate or receive a reversion of assets from any Parent Benefit Plan or related trustbenefits.
(vii) No Parent Benefit Plan provides for the person is entitled to receive any additional payment (including any Tax gross-up or reimbursement other payment) from Parent or any of its subsidiaries as a result of the imposition of the excise Taxes under required by Section 409A 4999 or 4999 Section 4985 of the Code or otherwiseany Taxes required by Section 409A or Section 457A of the Code.
(viii) Except as, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect on Parent, all Parent 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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Samples: Merger Agreement (IHS Inc.)
Benefit Plans. (ia) Set forth in Section 3.2(j)(i) 4.19 of the Parent Company Disclosure Letter contains Schedules is a true, true and complete and correct list of each Benefit Plan sponsoredof a Target Company or Medical Corporation (each, maintained a “Company Benefit Plan”). With respect to each Company Benefit Plan, there are no funded benefit obligations for which contributions have not been made or contributed properly accrued and there are no unfunded benefit obligations that have not been accounted for by Parent or any of its Subsidiariesreserves, or which Parent otherwise properly footnoted in accordance with GAAP on the Company Financials. No Target Company or Medical Corporation is or has in the past been a member of a “controlled group” for purposes of Section 414(b), (c), (m) or (o) of the Code, nor does any of its Subsidiaries is obligated to sponsor, maintain Target Company or contribute to, or Medical Corporation have any Liability with respect to which Parent any collectively-bargained for plans, whether or its Subsidiaries otherwise has any liability not subject to the provisions of ERISA.
(the “Parent Benefit Plans”). No Parent b) Each Company Benefit Plan is established or maintained outside and has been operated at all times in compliance with all applicable Laws in all material respects, including ERISA and the Code. Each Company Benefit Plan which is intended to be “qualified” within the meaning of Section 401(a) of the United States Code (i) has been determined by the IRS to be so qualified (or for is based on a prototype plan which has received a favorable opinion letter) during the benefit period from its adoption to the Agreement Date and (ii) its related trust has been determined to be exempt from taxation under Section 501(a) of the Code or the Target Companies or Medical Corporation have requested an initial favorable IRS determination of qualification and/or exemption within the period permitted by applicable Law. To the Company’s Knowledge, no fact exists which could adversely affect the qualified status of such Company Benefit Plans or the exempt status of such trusts.
(c) With respect to each Company Benefit Plan which covers any current or former employees officer, director, consultant or employee (or beneficiary thereof) of Parent a Target Company or any of its Subsidiaries residing outside of the United States.
(ii) Parent has delivered or made available to Medical Corporation, the Company prior has provided to the date of this Agreement a true, correct Purchaser accurate and complete copy of each Parent Benefit Plan currently in effect and, with respect theretocopies, if applicable, of: (Ai) all Company Benefit Plan documents and agreements and related trust agreements or annuity Contracts (including any amendments, modifications or supplements thereto); (ii) all summary plan descriptions and summary of material modifications thereto; (iii) the current trust three (or other funding vehicle3) agreementsmost recent Forms 5500, if applicable, and the most recent summary plan descriptionsannual report, including all schedules thereto; (Biv) the most recent annual report and periodic accounting of plan assets; (Form 5500 series including, where applicable, all schedules and actuarial and accountants’ reportsv) filed with the Department of Labor and the three (3) most recent actuarial report or other financial statement relating to such Parent Benefit Plan, nondiscrimination testing reports; (Cvi) the most recent determination letter received from the IRS IRS, if any; (if applicablevii) for such Parent Benefit Plan the most recent actuarial valuation; and (Dviii) all material communications with any notice to or from Governmental Authority within the IRS or any office or representative of the Department of Labor relating to any unresolved compliance issues in respect of such Parent Benefit Planlast three (3) years.
(iiid) Except as would not reasonably be expected With respect to have, individually or in the aggregate, a Material Adverse Effect on Parent, each Company Benefit Plan: (Ai) each Parent such Company Benefit Plan has been maintained administered and administered enforced in compliance all material respects in accordance with its terms and with applicable Lawterms, including, but not limited to, ERISA and the Code and in each case the regulations thereunder, ERISA; (Bii) each Parent Benefit Plan intended to be qualified under Section 401(ano breach of fiduciary duty has occurred; (iii) of the Code has received a favorable determination or opinion letter as to its qualifications from the IRS or no Action is entitled to rely on an advisory or opinion letter as to its qualifications 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 adversely affect the qualified status of any such plan, (C) neither Parent nor any of its Subsidiaries has engaged in a transaction that has resulted inpending, or would reasonably be expected to result in, the assessment of a civil penalty upon Parent or any of its Subsidiaries pursuant to Section 409 or 502(i) of ERISA or a tax imposed pursuant to Section 4975 or 4976 of the Code that has not been satisfied in full, (D) there does not now exist, nor, to the knowledge of Parent, do any circumstances exist that would reasonably be expected to result in, any Controlled Group Liability that would be a liability of Parent, any of its Subsidiaries or any of their respective ERISA Affiliates, (E) all payments required to be made by or with respect to each Parent Benefit Plan (including all contributions, insurance premiums or intercompany charges) with respect to all prior periods have been timely made or paid by Parent or its Subsidiaries in accordance with the provisions of each of the Parent 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 Parent in accordance with GAAP and (F) there are no pending or, to the knowledge of ParentCompany’s Knowledge, threatened claims by or on behalf of any Parent Benefit Plan, by any employee or beneficiary covered under any Parent Benefit Plan or otherwise involving any Parent Benefit Plan or any trusts related thereto (other than routine claims for benefitsbenefits arising in the ordinary course of administration).
; (iv) None of Parentno prohibited transaction, any of its Subsidiaries or any of their respective ERISA Affiliates 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 as defined in connection with: (A) a plan subject to Title IV or Section 302 406 of ERISA or Section 412 or Section 430 4975 of the Code, has occurred, excluding transactions effected pursuant to a statutory or administration exemption; and (Bv) all contributions and premiums due through the Closing Date have been made in all material respects as required under ERISA or have been fully accrued in all material respects on the Company Financials.
(e) No Company Benefit Plan is a “multiple employer welfare arrangement” (as defined in Section 3(40) of ERISA), a “multiple employer benefit plan” (as defined in Section 413(c414(j) of the Code) or ), a “multiemployer plan” (as defined in Section 3(37) of ERISA)) or a “multiple employer plan” (as described in Section 413(c) of the Code) or is otherwise subject to Title IV of ERISA or Section 412 of the Code, and no Target Company or Medical Corporation has incurred any Liability or otherwise could have any Liability, contingent or otherwise, under Title IV of ERISA and no condition presently exists that is expected to cause such Liability to be incurred. No Company Benefit Plan will become a multiple employer plan with respect to any Target Company or Medical Corporation immediately after the Closing Date. No Target Company or Medical Corporation currently maintains or has ever maintained, or (Cis required currently or has ever been required to contribute to or otherwise participate in, a multiple employer welfare arrangement or voluntary employees’ beneficiary association as defined in Section 501(c)(9) any plan or arrangement which provides for post-employment or post-retirement medical or welfare benefits for retired or former employees or beneficiaries or dependents thereof, except pursuant to Section 4980B of the Code or other applicable LawCode.
(vf) No arrangement exists pursuant to which a Target Company or Medical Corporation will be required to “gross up” or otherwise compensate any person because of the imposition of any excise tax on a payment to such person.
(g) With respect to each Parent Company Benefit Plan which is a “welfare plan” (as described in Section 3(1) of ERISA): (i) no such plan provides medical or death benefits with respect to current or former employees of a Target Company or Medical Corporation beyond their termination of employment (other than coverage mandated by Law, which is paid solely by such employees); and (ii) there are no reserves, assets, surplus or prepaid premiums under any such plan. The Target Company and Medical Corporations have complied in all material respects with the provisions of Section 601 et seq. of ERISA and Section 4980B of the Code.
(h) Each Company Benefit Plan satisfies the requirements of the Patient Protection and Affordable Care Act of 2010 (the “PPACA”), such that there is no reasonable expectation that any Tax or penalty could be imposed pursuant to the PPACA that relates to such group health plan. To the Knowledge of the Company, no condition exists that could cause any Target Company or Medical Corporation to have any Liability for any assessable payment under Section 4980H of the Code. To the Knowledge of the Company, no event has occurred, or condition exists, that could subject any Target Company or Medical Corporation to any Liability on account of a violation of the health care requirements of Part 6 or 7 of Title I of ERISA or Section 4980B or 4980D of the Code. Each Target Company and Medical Corporation has maintained records that are sufficient to satisfy the reporting requirements under Sections 6055 and 6056 of the Code, to the extent required, for all periods of time up to and through the Closing Date. No Target Company or Medical Corporation has modified the employment or service terms of any employee or service provider for the purpose of excluding such employee or service provider from full-time status for purposes of PPACA.
(i) Except as set forth in Section 4.19(i) of the Company Disclosure Schedules, the consummation of the transactions contemplated by this Agreement and the Ancillary Documents will not: (i) entitle any individual to severance pay, unemployment compensation or other benefits or compensation (except as set forth in Section 4.19 of the Company Disclosure Schedules); (ii) accelerate the time of payment or vesting, or increase the amount of any compensation due, or in respect of, any individual; or (iii) result in or satisfy a condition to the payment of compensation that would, in combination with any other payment, result in an “excess parachute payment” within the meaning of Section 280G of the Code. No Target Company or Medical Corporation has incurred any Liability for any Tax imposed under Chapter 43 of the Code or civil liability under Section 502(i) or (l) of ERISA.
(j) All Company Benefit Plans can be terminated at any time prior to the Closing Date without resulting in any Liability to the Surviving Corporation or Purchaser or their respective Affiliates for any additional contributions, penalties, premiums, fees, fines, excise taxes or any other charges or liabilities.
(k) Each Company Benefit Plan that is subject to Title IV or Section 302 of ERISA or Section 412 or 430 409A of the Code (each, a “Parent Title IV Section 409A Plan”): (A) there does not exist any failure to meet as of the “minimum funding standard” Closing Date is indicated as such in Section 4.19(k) of the Company Disclosure Schedules. No options or other equity-based awards have been issued or granted by the Company that are, or are subject to, a Section 409A Plan. Each Section 409A Plan has been administered in compliance, and is in documentary compliance, in all material respects, with the applicable provisions of Section 412 of the Code or 302 of ERISA (whether or not waived), (B) no such plan is in “at-risk” status for purposes of Section 430 409A of the Code, (C) the present value of accrued benefits under such Parent Title IV Plan, based upon the actuarial assumptions used for funding purposes in the most recent actuarial report prepared by such Parent Title IV Plan’s actuary regulations thereunder and other official guidance issued thereunder. No Target Company or Medical Corporation has any obligation to any employee or other service provider with respect to such Parent Title IV Plan, did not, as of its latest valuation date, exceed the then current fair market value any Section 409A Plan that may be subject to any Tax under Section 409A of the assets Code. No payment to be made under any Section 409A Plan is, or to the Knowledge of such Parent Title IV Plan allocable the Company will be, subject to such accrued benefits, (D) no reportable event within the meaning penalties of Section 4043(c) of ERISA has occurred, (E) all premiums to the PBGC have been timely paid in full, (F) no liability (other than for premiums to the PBGC) under Title IV of ERISA has been or is expected to be incurred by Parent or any of its ERISA Affiliates, and (G) the PBGC has not instituted proceedings to terminate any such Parent Title IV Plan and, to the knowledge of Parent, no circumstances exist which could serve as a basis for the institution of such proceedings.
(vi) Except as set forth on Section 3.2(j)(vi409A(a)(1) of the Parent Disclosure LetterCode. There is no Contract or plan to which any Target Company or Medical Corporation is a party or by which it is bound to compensate any employee, neither the execution and delivery of this Agreement nor the consummation consultant or director for penalty taxes paid pursuant to Section 409A of the transactions contemplated hereby (either alone or in conjunction with any other event) will (A) increase any benefits otherwise payable or trigger any other obligation under any Parent Benefit Plan, (B) result in any acceleration of the time of payment, funding or vesting of any such benefits or (C) result in any limitation on the right of Parent or any of its Subsidiaries to amend, merge, terminate or receive a reversion of assets from any Parent Benefit Plan or related trustCode.
(vii) No Parent Benefit Plan provides for the gross-up or reimbursement of Taxes under Section 409A or 4999 of the Code or otherwise.
Appears in 1 contract
Benefit Plans. (ia) Section 3.2(j)(i3.17(a) of the Parent Seller Disclosure Letter contains Schedules sets forth a true, complete and correct list of each Purchased Entity Benefit Plan sponsored, maintained or contributed by Parent or any of its Subsidiaries, or which Parent or any of its Subsidiaries is obligated to sponsor, maintain or contribute to, or with respect to which Parent or its Subsidiaries otherwise has any liability (the “Parent Benefit Plans”)Plan. No Parent Benefit Plan is established or maintained outside of the United States or for the benefit of current or former employees of Parent or any of its Subsidiaries residing outside of the United States.
(ii) Parent has delivered or made available to the Company prior to the date of this Agreement a true, The VDR Storage Device contains correct and complete copy copies of each Parent Purchased Entity Benefit Plan currently in effect (or, if no such copy exists, a written description thereof) and, with respect thereto, if to the extent applicable, (A) all amendments, the current any related trust (agreement or other funding vehicle) agreements, instrument and the most recent summary plan descriptions, (B) the most recent annual report (Form 5500 series including, where applicable, all schedules audited financial statements and actuarial and accountants’ reports) filed with the Department of Labor and the most recent actuarial report or other financial statement valuation reports relating to such Parent Benefit Plan, (C) the most recent determination letter from the IRS (if applicable) for such Parent Benefit Plan and (D) any notice to or from the IRS or any office or representative of the Department of Labor relating to any unresolved compliance issues in respect of such Parent Purchased Entity Benefit Plan.
(iiib) No Purchased Entity Benefit Plan is subject to Title IV of ERISA or intended to be qualified within the meaning of Section 401(a) of the Code. Except as would not reasonably be expected to haveexpected, individually or in the aggregate, to be material to the Business and the Purchased Entities, taken as a Material Adverse Effect on Parentwhole, (A) each Parent Seller 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 thereunder, (B) each Parent Benefit Plan that is intended to be qualified under Section 401(a) of the Code has received is subject to a favorable determination or opinion letter as to its qualifications from the IRS or is entitled to rely on an advisory or opinion letter as to its qualifications issued with respect to an IRS approved master and prototype or volume submitter planIRS, and there are no existing circumstances or any events event has occurred and no condition exists that have occurred that would could reasonably be expected to adversely affect or result in the qualified status revocation of any such plandetermination.
(c) Except as would not reasonably be expected, individually or in the aggregate, to be material to the Business and the Purchased Entities, taken as a whole, (Ci) neither Parent nor any of each Seller Benefit Plan has been established, maintained, funded and operated in compliance with its Subsidiaries has engaged in a transaction that has resulted in, or would reasonably be expected to result in, the assessment of a civil penalty upon Parent or any of its Subsidiaries pursuant to Section 409 or 502(i) of ERISA or a tax imposed pursuant to Section 4975 or 4976 of the Code that has not been satisfied in full, terms and applicable Law; (D) there does not now exist, nor, to the knowledge of Parent, do any circumstances exist that would reasonably be expected to result in, any Controlled Group Liability that would be a liability of Parent, any of its Subsidiaries or any of their respective ERISA Affiliates, (Eii) all payments contributions, distributions, premiums and expenses required to be made by Law or with respect to each Parent by the terms of a Seller Benefit Plan (including all contributions, insurance premiums or intercompany charges) with respect to all prior periods have been timely made or paid by Parent or its Subsidiaries in accordance with the provisions of each of the Parent 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 Parent in accordance with GAAP made; and (Fiii) there are is no pending or, to the knowledge Knowledge of ParentSeller, threatened claims by Proceeding or on behalf of audit relating to any Parent Benefit Plan, by any employee or beneficiary covered under any Parent Seller Benefit Plan or otherwise involving any Parent Benefit Plan or any trusts related thereto (other than routine claims for benefits).
(ivd) None of ParentNo Purchased Entity has Liability with respect to (i) a Multiemployer Plan, any of its Subsidiaries or any of their respective ERISA Affiliates 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: (Aii) a plan that is subject to Section 302 or Title IV or Section 302 of ERISA or Section 412 412, 430 or Section 430 4971 of the Code, Code or (Biii) 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 plan” (as defined in Section 3(37) of ERISA), or (C) any plan or arrangement which . No Seller Benefit Plan provides for post-employment or post-retirement medical or retiree welfare benefits for retired or former employees or beneficiaries or dependents thereofbenefits, except pursuant to Section 4980B of the Code or other extent required by applicable Law.
(v) With . Following the Closing, neither Purchaser nor any Purchased Entity shall have any Liability in respect to each Parent of any Seller Benefit Plan that is subject to Title IV or Section 302 of ERISA or Section 412 or 430 of the Code (each, not a “Parent Title IV Plan”): (A) there does not exist any failure to meet the “minimum funding standard” of Section 412 of the Code or 302 of ERISA (whether or not waived), (B) no such plan is in “at-risk” status for purposes of Section 430 of the Code, (C) the present value of accrued benefits under such Parent Title IV Purchased Entity Benefit Plan, based upon the actuarial assumptions used for funding purposes except expressly assumed in the most recent actuarial report prepared by such Parent Title IV Plan’s actuary accordance with respect to such Parent Title IV Plan, did not, as Article VI of its latest valuation date, exceed the then current fair market value of the assets of such Parent Title IV Plan allocable to such accrued benefits, (D) no reportable event within the meaning of Section 4043(c) of ERISA has occurred, (E) all premiums to the PBGC have been timely paid in full, (F) no liability (other than for premiums to the PBGC) under Title IV of ERISA has been or is expected to be incurred by Parent or any of its ERISA Affiliates, and (G) the PBGC has not instituted proceedings to terminate any such Parent Title IV Plan and, to the knowledge of Parent, no circumstances exist which could serve as a basis for the institution of such proceedingsthis Agreement.
(vie) Except as set forth on Section 3.2(j)(vi) of the Parent Disclosure Letter, neither Neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby Transaction will (either alone or in conjunction with any other event) will (Ai) result in any payment becoming due to any Business Employee, Former Business Employee or other service provider of the Business with respect to which a Purchased Entity has any liability, (ii) increase any benefits otherwise payable to any Business Employee, Former Business Employee or trigger other service provider of the Business with respect to which a Purchased Entity has any other obligation under any Parent Benefit Planliability, (Biii) result in any the acceleration of the time of payment, funding or vesting of any such compensation or benefits to any Business Employee, Former Business Employee or other service provider of the Business with respect to which a Purchased Entity has any liability, (iv) limit or restrict the right of any Purchased Entity to merge, amend, or terminate any Purchased Entity Benefit Plan or (Cv) result in any limitation on forgiveness of indebtedness to any Business Employee, Former Business Employee or other service provider of the right Business with respect to which a Purchased Entity has any liability.
(f) No amount that could be received (whether in cash or property or the vesting of Parent property), as a result of the consummation of the Transaction contemplated hereby (either alone or upon the occurrence of any additional or subsequent event) (i) has resulted or could reasonably be expected to result, individually or in the aggregate (but excluding any payment pursuant to any Contract or other arrangement entered into by Purchaser or any of its Subsidiaries to amendAffiliates), mergein the payment of any “excess parachute payment” within the meaning of Section 280G of the Code (or any corresponding provision of state, terminate local or receive a reversion foreign income Tax Law) in connection with the Transaction, or (ii) would not be deductible by reason of assets from any Parent Benefit Plan or related trust.
(vii) No Parent Benefit Plan provides for the gross-up or reimbursement of Taxes under Section 409A or 4999 280G of the Code or otherwisewould be subject to an excise tax under Section 4999 of the Code.
(g) Except as would not reasonably be expected, individually or in the aggregate, to be material to the Business and the Purchased Entities, taken as a whole, each Seller Benefit Plan that is subject to the Laws of a jurisdiction outside of the United States or that covers any Business Employee, Former Business Employee or other service provider of the Business residing or working outside the United States (a “Foreign Benefit Plan”), that is required to be registered or approved by any Governmental Entity has been so registered and approved and has been maintained in good standing with applicable requirements of Law, and, if intended to qualify for special Tax treatment, has so qualified for special Tax treatment. No Foreign Benefit Plan is a defined benefit plan (as defined in ERISA, whether or not subject to ERISA), seniority premium, termination indemnity, provident fund, gratuity or similar plan or arrangement or has any material unfunded or underfunded liabilities. Except as would not reasonably be expected, individually or in the aggregate, to be material to the Business and the Purchased Entities, taken as a whole, all Foreign Benefit Plans that are required to be funded, are fully funded, and adequate reserves have been established with respect to any Foreign Benefit Plan that is not required to be funded.
Appears in 1 contract
Benefit Plans. (i) Section 3.2(j)(i) of the Parent Disclosure Letter contains a true, complete and correct list of each Benefit Plan sponsored, maintained or contributed by Parent or any of its Subsidiaries, or which Parent or any of its Subsidiaries is obligated to sponsor, maintain or contribute to, or As applicable with respect to which Parent each Benefit Plan, the Company has made available to Buyer, as applicable, true and complete copies of (A) each Benefit Plan, including all amendments thereto, and in the case of an unwritten Benefit Plan, a written description thereof, (B) all trust documents, investment management contracts, custodial agreements and insurance contracts relating thereto, (C) the current summary plan description and each summary of material modifications thereto, (D) the most recently filed annual reports (Form 5500 and all schedules thereto), (E) the most recent Internal Revenue Service (“IRS”) determination or its Subsidiaries otherwise has opinion letter and each currently pending application to the IRS for a determination letter and (F) all records, notices and filings concerning IRS or Department of Labor audits or investigations, non-exempt “prohibited transactions” within the meaning of Section 406 of ERISA or Section 4975 of the Code that could reasonably be expected to result in any liability (to the Company and “Parent Benefit Plans”). No Parent Benefit Plan is established or maintained outside reportable events” within the meaning of the United States or for the benefit Section 4043 of current or former employees of Parent or any of its Subsidiaries residing outside of the United StatesERISA.
(ii) Parent has delivered or made available The Company and each ERISA Affiliate are in compliance in all material respects with the provisions of ERISA, the Code and all other laws applicable to the Company prior Benefit Plans. Each Benefit Plan has been maintained, operated and administered in compliance in all material respects with its terms and any related documents or agreements and the applicable provisions of ERISA, the Code and all other laws. No Benefit Plan is maintained outside the jurisdiction of the United States. All contributions to the date of this Agreement a true, correct and complete copy of each Parent Benefit Plan currently in effect and, with respect thereto, if applicable, (A) all amendments, the current trust (or other funding vehicle) agreementsPlans, and all payments under the most recent summary plan descriptionsBenefit Plans, (B) for any period ending before the most recent annual report (Form 5500 series includingClosing Date that are not yet, where applicablebut will be, all schedules required to be made by the Company are properly accrued and actuarial and accountants’ reports) filed with reflected on the Department of Labor and the most recent actuarial report or other financial statement relating to such Parent Benefit Plan, (C) the most recent determination letter from the IRS (if applicable) for such Parent Benefit Plan and (D) any notice to or from the IRS or any office or representative statements of the Department of Labor relating to any unresolved compliance issues in respect of such Parent Benefit PlanCompany.
(iii) Except as would not The Benefit Plans which are “employee pension benefit plans” within the meaning of Section 3(2) of ERISA and which are intended to meet the qualification requirements of Section 401(a) of the Code (each a “Pension Plan”) have obtained a favorable determination or opinion letter from the IRS regarding their qualified status, and there are no facts or circumstances that could reasonably be expected to have, individually or result in the aggregatedisqualification of any such plan or the loss of tax-exempt status under Section 501(a) of the Code for any related trust.
(iv) No Benefit Plan is now or at any time has been subject to Part 3, Subtitle B of Title I of ERISA or Title IV of ERISA. Neither the Company nor any ERISA Affiliate has ever contributed to, or been required to contribute to, any “multiemployer plan” (within the meaning of Section 3(37) of ERISA) and neither the Company nor any ERISA Affiliate has any liability (contingent or otherwise) relating to the withdrawal or partial withdrawal from a Material Adverse Effect on Parentmultiemployer plan.
(v) There are no pending audits or investigations by any Governmental Entity involving any Benefit Plan, and no pending or, to the Company’s knowledge, threatened claims (except for individual claims for benefits payable in the normal operation of the Benefit Plans), suits or proceedings involving any Benefit Plan, any fiduciary thereof or service provider thereto, nor to the Company’s knowledge, is there any reasonable basis for any such claim, suit or proceeding.
(vi) Neither the Company or any ERISA Affiliate, nor to the Company’s knowledge, any fiduciary, trustee or administrator of any Benefit Plan, has engaged in or, in connection with Sellers’ execution of, and performance of the transactions contemplated by this Agreement, will the Company or any ERISA Affiliate, or, to the Company’s knowledge, any fiduciary, trustee or administrator of any Benefit Plan, engage in, any transaction with respect to any Benefit Plan which could be reasonably expected to subject any such Benefit Plan, the Company or any ERISA Affiliate to a tax, penalty or liability for a non-exempt “prohibited transaction” under Section 406 of ERISA or Section 4975 of the Code.
(vii) The Company and each ERISA Affiliate have complied in all material respects with the notice and continuation coverage requirements of Section 4980B of the Code and the regulations thereunder and the provisions of the American Recovery and Reinvestment Act of 2009 relating to COBRA assistance with respect to each Benefit Plan that is a group health plan within the meaning of Section 5000(b)(1) of the Code. Each Benefit Plan is in compliance in all material respects with the applicable provisions of the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) and the regulations issued thereunder, to the extent applicable.
(viii) No Benefit Plan provides benefits, including, without limitation, death or medical benefits, beyond termination of service or retirement other than (A) each Parent 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 thereunder, coverage mandated by law or (B) each Parent death or retirement benefits under a Benefit Plan intended to be qualified under Section 401(a) of the Code Code, and neither the Company nor any ERISA Affiliate has received made a favorable determination written or opinion letter oral representation to any current or former employee promising or guaranteeing any such benefits.
(ix) Except as to its qualifications from set forth in Section 3.24(b)(ix) of the IRS Disclosure Letter, the Sellers’ execution of, and performance of the transactions contemplated by, this Agreement will not constitute an event under any Benefit Plan that will result in any payment (whether as severance pay or is entitled to rely on an advisory otherwise), acceleration, vesting or opinion letter as to its qualifications issued increase in benefits with respect to an IRS approved master and prototype any current or volume submitter plan, and there are no existing circumstances or any events that have occurred that would reasonably be expected to adversely affect the qualified status of any such plan, (C) neither Parent nor any of its Subsidiaries has engaged in a transaction that has resulted in, or would reasonably be expected to result in, the assessment of a civil penalty upon Parent or any of its Subsidiaries pursuant to Section 409 or 502(i) of ERISA or a tax imposed pursuant to Section 4975 or 4976 former employee of the Code that has not been satisfied in full, (D) there does not now exist, nor, to the knowledge of Parent, do any circumstances exist that would reasonably be expected to result in, any Controlled Group Liability that would be a liability of Parent, any of its Subsidiaries or any of their respective ERISA Affiliates, (E) all payments required to be made by or with respect to each Parent Benefit Plan (including all contributions, insurance premiums or intercompany charges) with respect to all prior periods have been timely made or paid by Parent or its Subsidiaries in accordance with the provisions of each of the Parent 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 Parent in accordance with GAAP and (F) there are no pending or, to the knowledge of Parent, threatened claims by or on behalf of any Parent Benefit Plan, by any employee or beneficiary covered under any Parent Benefit Plan or otherwise involving any Parent Benefit Plan or any trusts related thereto (other than routine claims for benefits)Company.
(ivx) None of Parent, any of its Subsidiaries or any of their respective ERISA Affiliates 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 plan subject to Title IV or Section 302 of ERISA or Section 412 or Section 430 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 plan” (as defined in Section 3(37) of ERISA), or (C) any plan or arrangement which provides for post-employment or post-retirement medical or welfare benefits for retired or former employees or beneficiaries or dependents thereof, except pursuant to Section 4980B of the Code or other applicable Law.
(v) With respect to each Parent Each Benefit Plan that is subject to Title IV or Section 302 of ERISA or Section 412 or 430 of the Code (each, constitutes a “Parent Title IV Plan”): (A) there does not exist any failure to meet the “minimum funding standardnon-qualified deferred compensation plan” of Section 412 of the Code or 302 of ERISA (whether or not waived), (B) no such plan is in “at-risk” status for purposes of Section 430 of the Code, (C) the present value of accrued benefits under such Parent Title IV Plan, based upon the actuarial assumptions used for funding purposes in the most recent actuarial report prepared by such Parent Title IV Plan’s actuary with respect to such Parent Title IV Plan, did not, as of its latest valuation date, exceed the then current fair market value of the assets of such Parent Title IV Plan allocable to such accrued benefits, (D) no reportable event within the meaning of Section 4043(c) 409A of ERISA has occurred, (E) the Code complies in all premiums material respects both in form and operation with the requirements of Section 409A of the Code so that no amounts paid pursuant to the PBGC have been timely paid in full, (F) no liability (other than for premiums to the PBGC) under Title IV of ERISA has been or is expected to be incurred by Parent or any of its ERISA Affiliates, and (G) the PBGC has not instituted proceedings to terminate any such Parent Title IV Benefit Plan and, is subject to tax under Section 409A of the knowledge of Parent, no circumstances exist which could serve as a basis for the institution of such proceedingsCode.
(vixi) Except Neither the Company nor any ERISA Affiliate has any commitment to modify or amend any Benefit Plan (except as set forth on Section 3.2(j)(vi) required by law or to retain the tax qualified status of any Benefit Plan). Neither the Company nor any ERISA Affiliate has any commitment to establish any new program or arrangement that would be a Benefit Plan if it had been established as of the Parent Disclosure Letter, 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) increase any benefits otherwise payable or trigger any other obligation under any Parent Benefit Plan, (B) result in any acceleration of the time of payment, funding or vesting of any such benefits or (C) result in any limitation on the right of Parent or any of its Subsidiaries to amend, merge, terminate or receive a reversion of assets from any Parent Benefit Plan or related trustdate hereof.
(viixii) No Parent The assets of each Benefit Plan provides for which provide retirement, medical, life insurance or similar benefits following termination of employment or retirement are at least equal to the gross-up or reimbursement liabilities of Taxes under Section 409A or 4999 of the Code or otherwisesuch Benefit Plan.
Appears in 1 contract
Benefit Plans. (ia) Section 3.2(j)(iSet forth on Schedule 5.19(a) of the Parent Disclosure Letter contains is a true, true and complete and correct list of each Benefit Plan sponsoredof a Target Company (each, maintained a “Company Benefit Plan”). With respect to each Company Benefit Plan, there are no funded benefit obligations for which contributions have not been made or contributed properly accrued and there are no unfunded benefit obligations that have not been accounted for by Parent or any of its Subsidiariesreserves, or which Parent otherwise properly footnoted in accordance with GAAP on the Company Financials. No Target Company is or has in the past been a member of a “controlled group” for purposes of Section 414(b), (c), (m) or (o) of the Code, nor does any of its Subsidiaries is obligated to sponsor, maintain or contribute to, or Target Company have any Liability with respect to which Parent any collectively-bargained for plans, whether or its Subsidiaries otherwise has any liability (not subject to the “Parent Benefit Plans”)provisions of ERISA. No Parent written statement or the to the Knowledge of the Sellers, oral statement, has been made by any Target Company to any Person with regard to any Company Benefit Plan that was not in accordance with the Company Benefit Plan in any material respect.
(b) Each Company Benefit Plan is established or maintained outside and has been operated at all times in compliance with all applicable Laws in all material respects, including ERISA and the Code. Each Company Benefit Plan which is intended to be “qualified” within the meaning of Section 401(a) of the United States Code (i) has been determined by the IRS to be so qualified (or for is based on a prototype plan which has received a favorable opinion letter) during the benefit of current or former employees of Parent or any of period from its Subsidiaries residing outside of the United States.
(ii) Parent has delivered or made available to the Company prior adoption to the date of this Agreement and (ii) its related trust has been determined to be exempt from taxation under Section 501(a) of the Code or the Target Companies have requested an initial favorable IRS determination of qualification and/or exemption within the period permitted by applicable Law. To the knowledge of the Sellers, no fact exists which could adversely affect the qualified status of such Company Benefit Plans or the exempt status of such trusts.
(c) With respect to each Company Benefit Plan which covers any current or former officer, manager, consultant or employee (or beneficiary thereof) of a trueTarget Company, correct the Sellers have provided to Purchaser accurate and complete copy of each Parent Benefit Plan currently in effect and, with respect theretocopies, if applicable, of: (Ai) all Company Benefit Plan texts and agreements and related trust agreements or annuity Contracts (including any amendments, modifications or supplements thereto); (ii) all summary plan descriptions and material modifications thereto; (iii) the current trust three (or other funding vehicle3) agreementsmost recent Forms 5500, if applicable, and the most recent summary plan descriptionsannual report, including all schedules thereto; (Biv) the most recent annual report and periodic accounting of plan assets; (Form 5500 series including, where applicable, all schedules and actuarial and accountants’ reportsv) filed with the Department of Labor and the three (3) most recent actuarial report or other financial statement relating to such Parent Benefit Plan, nondiscrimination testing reports; (Cvi) the most recent determination letter received from the IRS (IRS, if applicable) for such Parent Benefit Plan any; and (Dvii) any notice to or from the IRS or any office or representative of the Department of Labor relating to any unresolved compliance issues in respect of such Parent Benefit Planmost recent actuarial valuation.
(iiid) Except as would not reasonably be expected With respect to have, individually or in the aggregate, a Material Adverse Effect on Parent, each Company Benefit Plan: (Ai) each Parent such Company Benefit Plan has been maintained administered and administered enforced in compliance all material respects in accordance with its terms and with applicable Lawterms, including, but not limited to, ERISA and the Code and in each case the regulations thereunder, ERISA; (Bii) each Parent Benefit Plan intended to be qualified under Section 401(ano breach of fiduciary duty has occurred; (iii) of the Code has received a favorable determination or opinion letter as to its qualifications from the IRS or no Action is entitled to rely on an advisory or opinion letter as to its qualifications 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 adversely affect the qualified status of any such plan, (C) neither Parent nor any of its Subsidiaries has engaged in a transaction that has resulted inpending, or would reasonably be expected to result in, the assessment of a civil penalty upon Parent or any of its Subsidiaries pursuant to Section 409 or 502(i) of ERISA or a tax imposed pursuant to Section 4975 or 4976 of the Code that has not been satisfied in full, (D) there does not now exist, nor, to the knowledge of Parent, do any circumstances exist that would reasonably be expected to result in, any Controlled Group Liability that would be a liability of Parent, any of its Subsidiaries or any of their respective ERISA Affiliates, (E) all payments required to be made by or with respect to each Parent Benefit Plan (including all contributions, insurance premiums or intercompany charges) with respect to all prior periods have been timely made or paid by Parent or its Subsidiaries in accordance with the provisions of each of the Parent 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 Parent in accordance with GAAP and (F) there are no pending or, to the knowledge of ParentSellers’ Knowledge, threatened claims by or on behalf of any Parent Benefit Plan, by any employee or beneficiary covered under any Parent Benefit Plan or otherwise involving any Parent Benefit Plan or any trusts related thereto (other than routine claims for benefitsbenefits arising in the ordinary course of administration).
; (iv) None of Parentno prohibited transaction, any of its Subsidiaries or any of their respective ERISA Affiliates 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 as defined in connection with: (A) a plan subject to Title IV or Section 302 406 of ERISA or Section 412 or Section 430 4975 of the Code, has occurred, excluding transactions effected pursuant to a statutory or administration exemption; and (Bv) all contributions and premiums due through the date hereof have been made in all material respects as required under ERISA or have been fully accrued in all material respects on the Company Financials.
(e) No Company Benefit Plan is (i) a “multiple employer welfare arrangement” (as defined in Section 3(40) of ERISA), a “multiple employer benefit plan” (as defined in Section 413(c414(j) of the Code), (ii) or a “multiemployer plan” (as defined in Section 3(37) of ERISA)) or (iii) a “multiple employer plan” (as described in Section 413(c) of the Code) or (iv) otherwise subject to Title IV of ERISA or Section 412 of the Code. No Target Company nor any ERISA Affiliate has incurred any Liability or to the Knowledge of the Sellers, otherwise could have any Liability, contingent or otherwise, under Title IV of ERISA and to the Knowledge of the Sellers, no condition presently exists that is expected to cause such Liability to be incurred. No Target Company currently maintains or has ever maintained, or is required currently or has ever been required to contribute to or otherwise participate in, a multiple employer welfare arrangement or voluntary employees’ beneficiary association as defined in Section 501(c)(9) of the Code.
(Cf) There is no arrangement under any Company Benefit Plan with respect to any employee that would result in the payment of any amount that by operation of Sections 280(G) or 162(m) of the Code would not be deductible by the Target Companies and no arrangement exists pursuant to which a Target Company will be required to “gross up” or otherwise compensate any Person because of the imposition of any excise tax on a payment to such Person.
(g) With respect to each Company Benefit Plan which is a “welfare plan” (as described in Section 3(1) of ERISA): (i) no such plan or arrangement which provides for post-employment or post-retirement medical or welfare death benefits for retired with respect to current or former employees of a Target Company beyond their termination of employment (other than coverage mandated by Law, which is paid solely by such employees); and (ii) there are no reserves, assets, surplus or beneficiaries prepaid premiums under any such Company Benefit Plan. Each Target Company has complied with the provisions of Section 601 et seq. of ERISA and Section 4980B of the Code.
(h) The consummation of the transactions contemplated by this Agreement and the Ancillary Documents will not: (i) entitle any individual to severance pay, unemployment compensation or dependents thereofother benefits or compensation; (ii) accelerate the time of payment or vesting, except pursuant or increase the amount of any compensation due, or in respect of, any individual; or (iii) result in or satisfy a condition to the payment of compensation that would, in combination with any other payment, result in an “excess parachute payment” within the meaning of Section 280G of the Code. No Target Company has incurred any Liability for any Tax imposed under Chapter 43 of the Code or civil liability under Section 502(i) or (l) of ERISA.
(i) Except to the extent required by Section 4980B of the Code or similar state Law, no Target Company provides health or 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 applicable Lawtermination of employment or service.
(vj) With respect Based on the language of each Company Benefit Plan, all Company Benefit Plans can be terminated at any time as of or after the Closing Date without resulting in any Liability to each Parent the Surviving Subsidiary or Pubco or their respective Affiliates for any additional contributions, penalties, premiums, fees, fines, excise taxes or any other charges or liabilities.
(k) Each Company Benefit Plan that is subject to Title IV or Section 302 of ERISA or Section 412 or 430 409A of the Code (each, a “Parent Title IV Section 409A Plan”): (A) there does not exist is indicated as such in Schedule 5.19(k). No options to purchase Company Interests or any failure to meet other equity-based awards have been issued or granted by a Target Company that are, or are subject to, a Section 409A Plan. Each Section 409A Plan has been administered in material compliance, and is in documentary material compliance, with the “minimum funding standard” applicable provisions of Section 412 of the Code or 302 of ERISA (whether or not waived), (B) no such plan is in “at-risk” status for purposes of Section 430 409A of the Code, (C) the present value of accrued benefits under such Parent Title IV Plan, based upon the actuarial assumptions used for funding purposes in the most recent actuarial report prepared by such Parent Title IV Plan’s actuary regulations thereunder and other official guidance issued thereunder. No Target Company has any obligation to any employee or other service provider with respect to such Parent Title IV Plan, did not, as of its latest valuation date, exceed the then current fair market value any Section 409A Plan that may be subject to any Tax under Section 409A of the assets Code. No payment to be made under any Section 409A Plan is, or to the Knowledge of such Parent Title IV Plan allocable the Sellers will be, subject to such accrued benefits, (D) no reportable event within the meaning penalties of Section 4043(c) of ERISA has occurred, (E) all premiums to the PBGC have been timely paid in full, (F) no liability (other than for premiums to the PBGC) under Title IV of ERISA has been or is expected to be incurred by Parent or any of its ERISA Affiliates, and (G) the PBGC has not instituted proceedings to terminate any such Parent Title IV Plan and, to the knowledge of Parent, no circumstances exist which could serve as a basis for the institution of such proceedings.
(vi) Except as set forth on Section 3.2(j)(vi409A(a)(1) of the Parent Disclosure LetterCode. There is no Contract or Company Benefit Plan to which any Target Company is a party or by which it is bound to compensate any employee, neither the execution and delivery of this Agreement nor the consummation consultant or director for any Taxes or interest imposed pursuant to Section 409A of the transactions contemplated hereby (either alone or in conjunction with any other event) will (A) increase any benefits otherwise payable or trigger any other obligation under any Parent Benefit Plan, (B) result in any acceleration of the time of payment, funding or vesting of any such benefits or (C) result in any limitation on the right of Parent or any of its Subsidiaries to amend, merge, terminate or receive a reversion of assets from any Parent Benefit Plan or related trustCode.
(vii) No Parent Benefit Plan provides for the gross-up or reimbursement of Taxes under Section 409A or 4999 of the Code or otherwise.
Appears in 1 contract
Samples: Business Combination Agreement (Relativity Acquisition Corp)
Benefit Plans. (ia) Section 3.2(j)(i5.11(a) of the Parent Company Disclosure Letter contains a true, true and complete and correct list of each Benefit Plan under which (i) any current or former employee, director or consultant of the Company (the “Company Employees”) has any present or future right to benefits and which are contributed to, sponsored by or maintained by the Company or (ii) the Company has had or has any present or future liability (other than liability relating to such Benefit Plan investing in any entity sponsored, maintained or contributed managed by Parent or any of its Subsidiaries, or which Parent or any of its Subsidiaries is obligated to sponsor, maintain or contribute to, or with respect to which Parent the Company or its Subsidiaries Affiliates or otherwise has any liability (being a Client of the Company or its Affiliates). All such Benefit Plans shall be collectively referred to as the “Parent Company Benefit Plans”). No Parent Benefit Plan is established or maintained outside of the United States or for the benefit of current or former employees of Parent or any of its Subsidiaries residing outside of the United States.
(iib) Parent With respect to each Company Benefit Plan the Company has delivered or made available to the Company prior to the date of this Agreement Purchaser a truecurrent, correct accurate and complete copy of each Parent Benefit Plan currently in effect (or, to the extent no such copy exists, an accurate description) thereof and, with respect thereto, if to the extent applicable, : (Ai) all amendments, the current any related trust (agreement or other funding vehicle) agreements, and the most recent summary plan descriptions, instrument; (B) 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 Parent Benefit Plan, (Cii) the most recent determination letter from the IRS (letter, if applicable) for such Parent Benefit Plan and (D) any notice to or from the IRS or any office or representative of the Department of Labor relating to any unresolved compliance issues in respect of such Parent Benefit Plan.;
(iii) Except as would not reasonably be expected to have, individually or in any summary plan description; and (iv) for the aggregate, a Material Adverse Effect on Parent, two most recent years (A) each Parent the Form 5500 and attached schedules, (B) audited financial statements and (C) actuarial valuation reports, as applicable.
(i) Each Company Benefit Plan has been maintained established and administered in all material respects in accordance with its terms, and in material compliance with its terms and with the applicable Lawprovisions of ERISA, including, but not limited to, ERISA and the Code and in each case the regulations thereunder, other Applicable Laws; (Bii) each Parent Company Benefit Plan that is intended to be qualified under within the meaning of Section 401(a) of the Code has received a favorable determination letter or opinion letter as to its qualifications from the IRS or is entitled to rely on an advisory or opinion letter as to its qualifications issued with respect to an IRS approved master and prototype or volume submitter planform’s qualification, and there are no existing circumstances nothing has occurred, whether by action or any events failure to act, that have occurred that would could reasonably be expected to adversely affect cause the qualified status loss of any such plan, qualification; and (Ciii) neither Parent nor any of its Subsidiaries has engaged in a transaction that has resulted in, or would reasonably be expected to result in, the assessment of a civil penalty upon Parent or any of its Subsidiaries pursuant to Section 409 or 502(i) of ERISA or a tax imposed pursuant to Section 4975 or 4976 of the Code that Company has not been satisfied in full, (D) there does not now exist, nor, to the knowledge of Parent, do incurred any circumstances exist that would reasonably be expected to result in, any Controlled Group Liability that would be a liability of Parent, any of its Subsidiaries current or any of their respective ERISA Affiliates, (E) all payments required to be made by or with respect to each Parent Benefit Plan (including all contributions, insurance premiums or intercompany charges) with respect to all prior periods have been timely made or paid by Parent or its Subsidiaries in accordance with the provisions of each of the Parent 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 Parent in accordance with GAAP and (F) there are no pending or, to the knowledge of Parent, threatened claims by or on behalf of any Parent Benefit Plan, by any employee or beneficiary covered under any Parent Benefit Plan or otherwise involving any Parent Benefit Plan or any trusts related thereto (other than routine claims for benefits).
(iv) None of Parent, any of its Subsidiaries or any of their respective ERISA Affiliates 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 projected liability in connection with: (A) a plan subject to Title IV or Section 302 respect of ERISA or Section 412 or Section 430 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 plan” (as defined in Section 3(37) of ERISA), or (C) any plan or arrangement which provides for post-employment or post-retirement health, medical or welfare life insurance benefits for current, former or retired or former employees or beneficiaries or dependents thereofof Company, except pursuant as required to avoid an excise tax under Section 4980B of the Code or otherwise except as may be required pursuant to any other applicable Applicable Law.
(v) With respect to each Parent Benefit Plan that is subject to Title IV or Section 302 of ERISA or Section 412 or 430 of the Code (each, a “Parent Title IV Plan”): (A) there does not exist any failure to meet the “minimum funding standard” of Section 412 of the Code or 302 of ERISA (whether or not waived), (B) no such plan is in “at-risk” status for purposes of Section 430 of the Code, (C) the present value of accrued benefits under such Parent Title IV Plan, based upon the actuarial assumptions used for funding purposes in the most recent actuarial report prepared by such Parent Title IV Plan’s actuary with respect to such Parent Title IV Plan, did not, as of its latest valuation date, exceed the then current fair market value of the assets of such Parent Title IV Plan allocable to such accrued benefits, (D) no reportable event within the meaning of Section 4043(c) of ERISA has occurred, (E) all premiums to the PBGC have been timely paid in full, (F) no liability (other than for premiums to the PBGC) under Title IV of ERISA has been or is expected to be incurred by Parent or any of its ERISA Affiliates, and (G) the PBGC has not instituted proceedings to terminate any such Parent Title IV Plan and, to the knowledge of Parent, no circumstances exist which could serve as a basis for the institution of such proceedings.
(vi) Except as set forth on Section 3.2(j)(vi) of the Parent Disclosure Letter, 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) increase any benefits otherwise payable or trigger any other obligation under any Parent Benefit Plan, (B) result in any acceleration of the time of payment, funding or vesting of any such benefits or (C) result in any limitation on the right of Parent or any of its Subsidiaries to amend, merge, terminate or receive a reversion of assets from any Parent Benefit Plan or related trust.
(vii) No Parent Benefit Plan provides for the gross-up or reimbursement of Taxes under Section 409A or 4999 of the Code or otherwise.
Appears in 1 contract
Benefit Plans. (i) Section 3.2(j)(i) of the Parent Disclosure Letter contains a true, complete and correct list of each Each Westvaco Benefit Plan sponsoredhas been administered in accordance with its terms, maintained or contributed by Parent or except for any of its Subsidiaries, or which Parent or failures so to administer any of its Subsidiaries is obligated to sponsor, maintain or contribute to, or with respect to which Parent or its Subsidiaries otherwise has any liability (the “Parent Benefit Plans”). No Parent Westvaco Benefit Plan is established or maintained outside of the United States or for the benefit of current or former employees of Parent or any of its Subsidiaries residing outside of the United States.
(ii) Parent has delivered or made available to the Company prior to the date of this Agreement a true, correct and complete copy of each Parent Benefit Plan currently in effect and, with respect thereto, if applicable, (A) all amendments, the current trust (or other funding vehicle) agreements, and the most recent summary plan descriptions, (B) 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 Parent Benefit Plan, (C) the most recent determination letter from the IRS (if applicable) for such Parent Benefit Plan and (D) any notice to or from the IRS or any office or representative of the Department of Labor relating to any unresolved compliance issues in respect of such Parent Benefit Plan.
(iii) Except as would not reasonably be expected to have, that individually or in the aggregateaggregate would not have a material adverse effect on Westvaco. To the knowledge of Westvaco, a Material Adverse Effect on Parentthe Westvaco Benefit Plans have been operated, (A) each Parent Benefit Plan has been maintained and administered are, in compliance with its terms and with the applicable Lawprovisions of ERISA, including, but not limited to, ERISA and the Code and all other applicable laws and the terms of all Westvaco Collective Bargaining Agreements (as defined in each case this Section 4.2(k)), except for any failures to be in such compliance that individually or in the regulations thereunder, (B) each Parent aggregate would not have a material adverse effect on Westvaco. Each Westvaco Benefit Plan that is intended to be qualified under Section section 401(a) or 401(k) of the Code has received a favorable determination or opinion letter as to its qualifications from the IRS that it is so qualified and each trust established in connection with any Westvaco Benefit Plan that is intended to be exempt from federal income taxation under section 501(a) of the Code has received a determination letter from the IRS that such trust is so exempt. To the knowledge of Westvaco, no fact or is entitled to rely on an advisory or opinion event has occurred since the date of any determination letter as to its qualifications issued with respect to an from the 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 could affect adversely affect the qualified status of any such plan, (C) neither Parent nor any of its Subsidiaries has engaged in a transaction that has resulted in, or would reasonably be expected to result in, the assessment of a civil penalty upon Parent or any of its Subsidiaries pursuant to Section 409 or 502(i) of ERISA or a tax imposed pursuant to Section 4975 or 4976 of the Code that has not been satisfied in full, (D) there does not now exist, nor, to the knowledge of Parent, do any circumstances exist that would reasonably be expected to result in, any Controlled Group Liability that would be a liability of Parent, any of its Subsidiaries or any of their respective ERISA Affiliates, (E) all payments required to be made by or with respect to each Parent Benefit Plan (including all contributions, insurance premiums or intercompany charges) with respect to all prior periods have been timely made or paid by Parent or its Subsidiaries in accordance with the provisions of each of the Parent 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 Parent in accordance with GAAP and (F) there are no pending or, to the knowledge of Parent, threatened claims by or on behalf of any Parent Benefit Plan, by any employee or beneficiary covered under any Parent Westvaco Benefit Plan or otherwise involving the exempt status of any Parent Benefit Plan such trust except for facts or events that can be cured without any trusts related thereto (other than routine claims for benefits)material liability on the part of Westvaco and its subsidiaries.
(iv) None of Parent, any of its Subsidiaries or any of their respective ERISA Affiliates 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 plan subject to Title IV or Section 302 of ERISA or Section 412 or Section 430 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 plan” (as defined in Section 3(37) of ERISA), or (C) any plan or arrangement which provides for post-employment or post-retirement medical or welfare benefits for retired or former employees or beneficiaries or dependents thereof, except pursuant to Section 4980B of the Code or other applicable Law.
(vii) With respect to each Parent of the Westvaco Benefit Plan that Plans which is subject to Title IV or Section 302 of ERISA or Section 412 or 430 of the Code (eachERISA, a “Parent Title IV Plan”): (A) there does not exist any failure to meet the “minimum funding standard” of Section 412 of the Code or 302 of ERISA (whether or not waived), (B) no such plan is in “at-risk” status for purposes of Section 430 of the Code, (C) the present value of accrued benefits under such Parent Title IV Planplan, based upon the actuarial assumptions used for funding purposes in the most recent actuarial report prepared by such Parent Title IV Plan’s plan's actuary with respect to such Parent Title IV Planplan, did not, as of its latest valuation date, exceed the then current fair market value of the assets of such Parent Title IV Plan plan allocable to such accrued benefits, . No Westvaco Benefit Plan nor any trust established under a Westvaco Benefit Plan has incurred any "accumulated funding deficiency" (D) no reportable event within the meaning of Section 4043(c) as defined in section 302 of ERISA has occurredand section 412 of the Code), (E) all premiums whether or not waived, as of the last day of the most recent fiscal year of each of the Westvaco Benefit Plans ended prior to the PBGC have been timely paid in full, date of this Agreement.
(Fiii) no liability No Westvaco Benefit Plan provides medical benefits (whether or not insured) with respect to current or former employees after retirement or other termination of service (other than for premiums coverage mandated by applicable law or benefits, the full cost of which is borne by the current or former employee) other than individual arrangements the amounts of which are not material.
(iv) Westvaco has previously provided to the PBGC) under Title IV Mead a list of ERISA has been each collective bargaining or is expected other labor union contraxx xpplicable to be incurred persons employed by Parent Westvaco or any of its ERISA Affiliatessubsidiaries to which Westvaco or any of its subsidiaries is a party (each a "WESTVACO COLLECTIVE BARGAINING AGREEMENT"). No Westvaco Collective Bargaining Agreement is being negotiated or renegotiated by Westvaco or any of its subsidiaries. As of the date of this Agreement, and (G) the PBGC has not instituted proceedings to terminate there is no labor dispute, strike or work stoppage against Westvaco or any such Parent Title IV Plan andof its subsidiaries pending or, to the knowledge of ParentWestvaco, threatened that may interfere with the respective business activities of Westvaco or any of its subsidiaries, except where such dispute, strike or work stoppage individually or in the aggregate would not have a material adverse effect on Westvaco. As of the date of this Agreement, to the knowledge of Westvaco, none of Westvaco, any of its subsidiaries or any of their respective representatives or employees has committed any material unfair labor practice in connection with the operation of the respective businesses of Westvaco or any of its subsidiaries, and there is no circumstances exist which could serve as a basis for material charge or complaint against Westvaco or any of its subsidiaries by the institution of such proceedingsNational Labor Relations Board or any comparable Governmental Entity pending or threatened in writing.
(viv) Except as set forth on Section 3.2(j)(vi) No employee of Westvaco or any Westvaco subsidiary will be entitled to any material payment, additional benefits or any acceleration of the Parent Disclosure Lettertime of funding (through a grantor trust or otherwise), neither the execution and delivery payment or vesting of this Agreement nor the consummation any benefits under any Westvaco Benefit Plan as a result of the transactions contemplated hereby by this Agreement by virtue of their status as a "Change in Control" (including equivalent terms such as "Significant Change") within the meaning of the Westvaco Benefit Plans (either alone or in conjunction with any other eventevent such as a termination of employment).
(vi) will (A) increase Except as would not have a material adverse effect on Westvaco, there are no material unresolved claims or disputes under the terms of, or in connection with, any benefits otherwise payable or trigger any other obligation under any Parent Benefit Plan, (B) result in any acceleration of the time of payment, funding or vesting of any such benefits or (C) result in any limitation on the right of Parent or any of its Subsidiaries to amend, merge, terminate or receive a reversion of assets from any Parent Westvaco Benefit Plan (other than routine undisputed claims for benefits), and no action, legal or related trustotherwise, has been commenced with respect to any material claim.
(vii) No Parent To the knowledge of Westvaco, no non-exempt "prohibited transaction" (within the meaning of section 4975(c) of the Code) involving any Westvaco Benefit Plan provides has occurred that could subject Westvaco to any material tax penalty or other cost or liability (by indemnification or otherwise).
(viii) No liability under Title IV of ERISA has been incurred and not yet satisfied by Westvaco or any of its subsidiaries, or any trade or business (whether or not incorporated) that together with Westvaco or such subsidiary would have been deemed a "single employer" within the meaning of section 4001(b) of ERISA at any time within the six-year period ending on the Closing Date (a "WESTVACO ERISA AFFILIATE") since the effective date of ERISA that has not been satisfied in full. No condition exists that presents a material risk to Westvaco or any of its subsidiaries of incurring a liability under such Title, other than liability for premiums due the grossPension Benefit Guaranty Corporation. To the extent this representation applies to section 4064, 4069 or 4204 of Title IV of ERISA, it is made not only with respect to the Westvaco Benefit Plans, but also with respect to any employee benefit plan, program, agreement or arrangement subject to Title IV of ERISA to which Westvaco or any of its subsidiaries or a Westvaco ERISA Affiliate made, or was required to make, contributions during the six-up or reimbursement year period ending on the Closing Date.
(ix) To the knowledge of Taxes under Section 409A or 4999 Westvaco, all Westvaco Benefit Plans subject to the laws of any jurisdiction outside of the Code United States (i) have been maintained in accordance with all applicable requirements, (ii) if they are intended to qualify 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, as appropriate, based upon reasonable actuarial assumptions.
(x) Westvaco has taken such actions as are necessary to assure that no funding of any Westvaco grantor trust is required to occur in connection with the execution of this Agreement or otherwisethe consummation of the transactions contemplated hereby.
Appears in 1 contract
Samples: Merger Agreement (Westvaco Corp)
Benefit Plans. (i) Section 3.2(j)(i) of the Parent Disclosure Letter contains a true, complete and correct list of each Benefit Plan sponsored, maintained or contributed by Parent or any of its Subsidiaries, or which Parent or any of its Subsidiaries is obligated to sponsor, maintain or contribute to, or with respect to which Parent or its Subsidiaries otherwise has any liability (the “Parent Benefit Plans”). No Parent Benefit Plan is established or maintained outside of the United States or for the benefit of current or former employees of Parent or any of its Subsidiaries residing outside of the United States.
(ii) Parent has delivered or made available to the Company prior to the date of this Agreement a true, correct and complete copy of each Parent Benefit Plan currently in effect and, with respect thereto, if applicable, (A) all amendments, the current trust (or other funding vehicle) agreements, and the most recent summary plan descriptions, (B) 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 Parent Benefit Plan, (C) the most recent determination letter from the IRS (if applicable) for such Parent Benefit Plan and (D) any notice to or from the IRS or any office or representative of the Department of Labor relating to any unresolved compliance issues in respect of such Parent Benefit Plan.
(iii) Except as would not reasonably be expected to havebe material to the Company Group, individually or in the aggregateconsidered as one enterprise, a Material Adverse Effect on Parentall Benefit Plans have been operated, (A) each Parent Benefit Plan has been maintained maintained, funded and administered in compliance in all material respects with its their respective terms and with all applicable Lawlaws, including, but not limited to, including ERISA and the Code Code, and in each case the regulations thereunder, (B) each Parent no Benefit Plan intended to be qualified under Section 401(a) of the Code has received a favorable determination any unfunded or opinion letter as to its qualifications from the IRS or is entitled to rely on an advisory or opinion letter as to its qualifications issued with respect to an IRS approved master and prototype or volume submitter plan, and there underfunded liabilities. There are no existing circumstances or any events that have occurred that would reasonably be expected to adversely affect the qualified status of any such plan, (C) neither Parent nor any of its Subsidiaries has engaged in a transaction that has resulted inpending, or would reasonably be expected to result in, the assessment of a civil penalty upon Parent or any of its Subsidiaries pursuant to Section 409 or 502(i) of ERISA or a tax imposed pursuant to Section 4975 or 4976 of the Code that has not been satisfied in full, (D) there does not now exist, nor, to the knowledge of Parent, do any circumstances exist that would reasonably be expected to result in, any Controlled Group Liability that would be a liability of Parent, any of its Subsidiaries or any of their respective ERISA Affiliates, (E) all payments required to be made by or with respect to each Parent Benefit Plan (including all contributions, insurance premiums or intercompany charges) with respect to all prior periods have been timely made or paid by Parent or its Subsidiaries in accordance with the provisions of each of the Parent 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 Parent in accordance with GAAP and (F) there are no pending or, to the knowledge of ParentCompany Group, threatened material claims by or on behalf of any Parent Benefit Plan, by any employee or beneficiary covered under any Parent such Benefit Plan Plan, or otherwise involving any Parent such Benefit Plan or any trusts related thereto (other than routine claims for benefits).
(iv) None . No member of Parent, any of its Subsidiaries or the Company Group nor any of their respective ERISA Affiliates sponsors, maintains, contributes to or has any liability, contingent or otherwise, with respect to, or participates in, or has ever during the past six (6) years sponsored, maintained, contributed to or had any liability, contingent or otherwise, with respect to, or participated in, or otherwise has any obligation or liability in connection with: (A) a defined benefit pension plan subject to Title IV or Section 302 of ERISA or Section 412 or Section 430 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 plan” (as defined in Section 3(374001(a)(3) of ERISA), ) or (C) any plan or arrangement which provides for post-employment or post-retirement medical or welfare benefits for retired or former employees or beneficiaries or dependents thereof, except pursuant to Section 4980B of the Code or other applicable Law.
(v) With respect to each Parent Benefit Plan that is subject to Title IV or Section 302 of ERISA or Section 412 or 430 of the Code (each, a “Parent Title IV Plan”): multiple employer plan” (A) there does not exist any failure to meet the “minimum funding standard” of Section 412 of the Code or 302 of ERISA (whether or not waived), (B) no such plan is in “at-risk” status for purposes of Section 430 of the Code, (C) the present value of accrued benefits under such Parent Title IV Plan, based upon the actuarial assumptions used for funding purposes in the most recent actuarial report prepared by such Parent Title IV Plan’s actuary with respect to such Parent Title IV Plan, did not, as of its latest valuation date, exceed the then current fair market value of the assets of such Parent Title IV Plan allocable to such accrued benefits, (D) no reportable event within the meaning of Section 4043(c412(c) of ERISA the Code). No member of the Company Group has occurredany liability, (E) all premiums contingent or otherwise, to the PBGC have been timely paid in fullprovide any post-retirement life, (F) no liability (health or welfare benefits, other than liability for premiums to the PBGC) under continuation coverage described in Part 6 of Title IV I of ERISA has been or similar applicable state laws. No Benefit Plan is expected a “non-qualified deferred compensation plan” subject to Section 409A of the Code. Each Benefit Plan that is intended to be incurred by Parent qualified under Section 401(a) of the Code is the subject of a favorable determination or any of its ERISA Affiliates, and (G) opinion letter from the PBGC has not instituted proceedings Internal Revenue Service as to terminate any such Parent Title IV Plan qualification and, to the knowledge of Parentthe Company Group, no circumstances exist nothing has occurred, whether by action or failure to act, which could serve as a basis for the institution of would reasonably be expected to adversely affect such proceedings.
(vi) Except as set forth on Section 3.2(j)(vi) of the Parent Disclosure Letter, neither qualification. Neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby thereby (either whether alone or in conjunction with any other a subsequent event) will (A) entitle any employee or other service provider of the Company Group to any compensatory payment or benefit, increase the amount of any benefits otherwise payable compensatory payment or trigger benefit, accelerate the time of payment or vesting or result in the funding of any other obligation under any Parent Benefit Plancompensatory payment or benefit, (B) or result in any acceleration loan forgiveness. No member of the time of payment, funding or vesting of Company Group has any such benefits or (C) result in obligation to pay any limitation on the right of Parent or any of its Subsidiaries to amend, merge, terminate or receive a reversion of assets from any Parent Benefit Plan or related trust.
(vii) No Parent Benefit Plan provides for the tax gross-up or reimbursement of Taxes under Section 409A or 4999 of the Code or otherwisesimilar payments.
Appears in 1 contract
Samples: Securities Purchase Agreement (Plymouth Industrial REIT, Inc.)
Benefit Plans. (ia) Section 3.2(j)(iAll “employee benefit plans” (within the meaning of section 3(3) of the Parent Disclosure Letter contains a trueERISA) and all stock purchase, complete stock option, severance, employment, change-in-control, fringe benefit, bonus, incentive, deferred compensation and correct list all other employee benefit plans, agreements, programs, policies or other arrangements, whether or not subject to ERISA under which any employee, former employee, director, officer, independent contractor or consultant of each Benefit Plan sponsored, maintained or contributed by Parent or any of its Subsidiaries, or which Parent or any of its Subsidiaries is obligated to sponsor, maintain or contribute to, or with respect to which Parent Purchaser or its Subsidiaries otherwise has any present or future right to benefits or Purchaser or its Subsidiaries has any present or future liability (are referred to herein as the “Parent Benefit Purchaser Plans.”). No Parent Benefit Plan is established or maintained outside of the United States or for the benefit of current or former employees of Parent or any of its Subsidiaries residing outside of the United States.
(iib) Parent With respect to each material Purchaser Plan, to the extent requested by Company, Purchaser has delivered furnished or made available to the Company prior to the date of this Agreement Purchaser a truecurrent, correct accurate and complete copy of each Parent Benefit Plan currently in effect thereof and, with respect theretoto the extent applicable: (i) any related trust agreement or other funding instrument, (ii) the most recent determination or opinion letter of the IRS, if applicable, (Aiii) all amendments, the current trust (or other funding vehicle) agreements, and the most recent summary plan descriptionsdescription and (iv) for the most recent year (A) the Form 5500 and attached schedules, (B) the most recent annual report (Form 5500 series including, where applicable, all schedules audited financial statements and actuarial and accountants’ reports) filed with the Department of Labor and the most recent actuarial report or other financial statement relating to such Parent Benefit Plan, (C) the most recent determination letter from the IRS (if applicable) for such Parent Benefit Plan and (D) any notice to or from the IRS or any office or representative of the Department of Labor relating to any unresolved compliance issues in respect of such Parent Benefit Planactuarial valuation reports.
(iiic) Except as would not reasonably be expected With respect to haveeach Purchaser Plan, except to the extent that the inaccuracy of any of the representations set forth in this Section 4.10, individually or in the aggregate, have not had a Purchaser Material Adverse Effect on Parent, Effect:
(Ai) each Parent Benefit Purchaser Plan has been maintained established and administered in compliance accordance with its terms and in compliance with the applicable Law, including, but not limited to, provisions of ERISA and the Code Code, and in each case all contributions required to be made under the regulations thereunder, terms of any Purchaser Plan have been timely made;
(Bii) each Parent Benefit Purchaser Plan intended to be qualified under Section 401(a) of the Code (A) has received a favorable determination or determination, advisory and/or opinion letter letter, as to its qualifications applicable, from the IRS or that it is entitled so qualified and, to rely on an advisory or opinion the Knowledge of Purchaser, nothing has occurred since the date of such letter as to its qualifications 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 adversely affect cause the loss of such qualified status of such Purchaser Plan or (B) is a volume submitter or prototype plan whose sponsor obtained a favorable opinion letter and on which letter Purchaser is permitted to rely; and
(iii) there is no Action (including any such planinvestigation, (Caudit or other administrative proceeding) neither Parent nor by the Department of Labor, the PBGC, the IRS or any of its Subsidiaries has engaged in a transaction that has resulted inother Governmental Entity or by any plan participant or beneficiary pending, or would reasonably be expected to result in, the assessment of a civil penalty upon Parent or any of its Subsidiaries pursuant to Section 409 or 502(i) of ERISA or a tax imposed pursuant to Section 4975 or 4976 of the Code that has not been satisfied in full, (D) there does not now exist, nor, to the knowledge Knowledge of ParentPurchaser, do any circumstances exist that would reasonably be expected threatened, relating to result inPurchaser Plans, any Controlled Group Liability that would be a liability of Parent, any of its Subsidiaries or any of their respective ERISA Affiliates, (E) all payments required to be made by or fiduciaries thereof with respect to each Parent Benefit Plan (including all contributions, insurance premiums their duties to Purchaser Plans or intercompany charges) with respect to all prior periods have been timely made or paid by Parent or its Subsidiaries in accordance with the provisions assets of each any of the Parent 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 Parent in accordance with GAAP and (F) there are no pending or, to the knowledge of Parent, threatened claims by or on behalf of any Parent Benefit Plan, by any employee or beneficiary covered trusts under any Parent Benefit Plan or otherwise involving any Parent Benefit Plan or any trusts related thereto Purchaser Plans (other than routine claims for benefits).
(iv) None of Parent, any of its Subsidiaries or any of their respective ERISA Affiliates 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 plan subject to Title IV or Section 302 of ERISA or Section 412 or Section 430 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 plan” (as defined in Section 3(37) of ERISA), or (C) any plan or arrangement which provides for post-employment or post-retirement medical or welfare benefits for retired or former employees or beneficiaries or dependents thereof, except pursuant to Section 4980B of the Code or other applicable Law.
(v) With respect to each Parent Benefit Plan that is subject to Title IV or Section 302 of ERISA or Section 412 or 430 of the Code (each, a “Parent Title IV Plan”): (A) there does not exist any failure to meet the “minimum funding standard” of Section 412 of the Code or 302 of ERISA (whether or not waived), (B) no such plan is in “at-risk” status for purposes of Section 430 of the Code, (C) the present value of accrued benefits under such Parent Title IV Plan, based upon the actuarial assumptions used for funding purposes in the most recent actuarial report prepared by such Parent Title IV Plan’s actuary with respect to such Parent Title IV Plan, did not, as of its latest valuation date, exceed the then current fair market value of the assets of such Parent Title IV Plan allocable to such accrued benefits, (D) no reportable event within the meaning of Section 4043(c) of ERISA has occurred, (E) all premiums to the PBGC have been timely paid in full, (F) no liability (other than for premiums to the PBGC) under Title IV of ERISA has been or is expected to be incurred by Parent or any of its ERISA Affiliates, and (G) the PBGC has not instituted proceedings to terminate any such Parent Title IV Plan andnor, to the knowledge Knowledge of ParentPurchaser, no are there facts or circumstances that exist which that could serve as a basis for the institution of such proceedings.
(vi) Except as set forth on Section 3.2(j)(vi) of the Parent Disclosure Letter, 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) increase any benefits otherwise payable or trigger any other obligation under any Parent Benefit Plan, (B) result in any acceleration of the time of payment, funding or vesting of reasonably give rise to any such benefits or (C) result in any limitation on the right of Parent or any of its Subsidiaries to amend, merge, terminate or receive a reversion of assets from any Parent Benefit Plan or related trustActions.
(vii) No Parent Benefit Plan provides for the gross-up or reimbursement of Taxes under Section 409A or 4999 of the Code or otherwise.
Appears in 1 contract
Samples: Merger Agreement (Iberiabank Corp)
Benefit Plans. (ia) Set forth on Section 3.2(j)(i5.19(a) of the Parent Company Disclosure Letter contains Schedules is a true, true and complete and correct list of each Benefit material Foreign Plan sponsored, maintained or contributed by Parent of the Company or any of its SubsidiariesTarget Company (each, or which Parent or any of its Subsidiaries is obligated to sponsor, maintain or contribute to, or with respect to which Parent or its Subsidiaries otherwise has any liability (the a “Parent Company Benefit PlansPlan”). No Parent Benefit Plan is established or maintained outside Except as set forth on Section 5.19(a) of the United States Company Disclosure Schedules, neither the Company nor any Target Company maintains or contributes to (or has an obligation to contribute to) any Benefit Plan, whether or not subject to ERISA, that is maintained for the benefit of current or former any employees of Parent or any of its Subsidiaries residing outside of who provide services in the United States.
(iib) Parent With respect to each Company Benefit Plan, the Company has delivered or made available to the Company prior to the date of this Agreement a true, correct SPAC accurate and complete copy of each Parent Benefit Plan currently in effect and, with respect theretocopies, if applicable, (A) all amendments, of the current trust (or other funding vehicle) agreementsplan documents and written descriptions of any material Company Benefit Plans which are not in writing, and the most recent summary plan descriptions, (B) 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 and all material communications in the past three (3) years with any Governmental Authority concerning any matter that is still pending or other financial statement relating to such Parent Benefit Plan, (C) for which the most recent determination letter from the IRS (if applicable) for such Parent Benefit Plan and (D) any notice to or from the IRS Company or any office or representative of the Department of Labor relating to Target Company has any unresolved compliance issues in respect of such Parent Benefit Planoutstanding material Liability.
(iiic) Except as would not reasonably be expected to have, individually or in Neither the aggregate, a Material Adverse Effect on Parent, (A) each Parent 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 thereunder, (B) each Parent Benefit Plan intended to be qualified under Section 401(a) of the Code has received a favorable determination or opinion letter as to its qualifications from the IRS or is entitled to rely on an advisory or opinion letter as to its qualifications 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 adversely affect the qualified status of any such plan, (C) neither Parent Company nor any of its Subsidiaries Target Company has engaged in a transaction that ever maintained or sponsored or has resulted in, any current or would reasonably be expected to result in, the assessment of a civil penalty upon Parent contingent material liability or any of its Subsidiaries pursuant to Section 409 or 502(i) of ERISA or a tax imposed pursuant to Section 4975 or 4976 of the Code that has not been satisfied in full, (D) there does not now exist, nor, to the knowledge of Parent, do any circumstances exist that would reasonably be expected to result in, any Controlled Group Liability that would be a liability of Parent, any of its Subsidiaries or any of their respective ERISA Affiliates, (E) all payments required to be made by obligation under or with respect to each Parent Benefit Plan (including all contributions, insurance premiums or intercompany charges) with respect to all prior periods have been timely made or paid by Parent or its Subsidiaries in accordance with the provisions of each of the Parent 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 Parent in accordance with GAAP and (F) there are no pending or, to the knowledge of Parent, threatened claims by or on behalf of any Parent Benefit Plan, by any employee or beneficiary covered under any Parent Benefit Plan or otherwise involving any Parent Benefit Plan or any trusts related thereto (other than routine claims for benefits).
(iv) None of Parent, any of its Subsidiaries or any of their respective ERISA Affiliates 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: (Ai) a plan subject to Title IV or Section 302 of ERISA or Section 412 or Section 430 of the Code, (B) a any “multiple employer welfare arrangement” (as defined in Section 3(40) of ERISA), a “multiple employer benefit plan” (as defined in Section 413(c3(35) of ERISA, whether or not subject thereto) or that is or was subject to Section 412 of the Code, Section 302 of ERISA or Title IV of ERISA; or (ii) or a “multiemployer plan” (as defined in Section 3(37) of ERISA), . Neither the Company nor any Target Company has any current or contingent liability by reason of at any time within the past six (C6) years being treated as a single employer with any plan or arrangement which provides for post-employment or post-retirement medical or welfare benefits for retired or former employees or beneficiaries or dependents thereof, except pursuant to other Person under Section 4980B 414 of the Code or other applicable LawCode.
(vd) With respect Except as would not reasonably be expected to each Parent Benefit Plan that is subject to Title IV or Section 302 of ERISA or Section 412 or 430 of the Code (each, have a “Parent Title IV Plan”): (A) there does not exist any failure to meet the “minimum funding standard” of Section 412 of the Code or 302 of ERISA (whether or not waived), (B) no such plan is in “at-risk” status for purposes of Section 430 of the Code, (C) the present value of accrued benefits under such Parent Title IV Plan, based upon the actuarial assumptions used for funding purposes in the most recent actuarial report prepared by such Parent Title IV Plan’s actuary Material Adverse Effect with respect to the Company, each Company Benefit Plan: (i) such Parent Title IV PlanCompany Benefit Plan has been administered and enforced in all material respects in accordance with its terms and the requirements of all applicable Laws, did notand has been maintained, as of its latest valuation datewhere required, exceed the then current fair market value of the assets of such Parent Title IV Plan allocable to such accrued benefits, in good standing in all material respects with applicable regulatory authorities and Governmental Authorities; (Dii) no reportable event within breach of fiduciary duty that would result in material Liability to the meaning of Section 4043(c) of ERISA Company or any Target Company has occurred; (iii) no Action that would result in a material Liability to the Company or any Target Company is pending, or to the Company’s Knowledge, threatened (Eother than routine claims for benefits arising in the ordinary course of administration); and (iv) all contributions, premiums and other payments (including any special contribution, interest or penalty) required to the PBGC be made with respect to a Company Benefit Plan have been timely paid made in fullall material respects. Neither the Company nor any Target Company has incurred any material obligation in connection with the termination of, (F) no liability (other than for premiums to the PBGC) under Title IV of ERISA has been or is expected to be incurred by Parent or withdrawal from, any of its ERISA Affiliates, and (G) the PBGC has not instituted proceedings to terminate any such Parent Title IV Plan and, to the knowledge of Parent, no circumstances exist which could serve as a basis for the institution of such proceedingsCompany Benefit Plan.
(vie) Except as set forth on in Section 3.2(j)(vi5.19(e) of the Parent Company Disclosure LetterSchedules, neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby by this Agreement and the Ancillary Documents will not: (either alone i) entitle any individual to severance pay, material unemployment compensation or in conjunction with any other event) will (A) increase any material benefits otherwise payable or trigger any other obligation compensation under any Parent Company Benefit Plan, Plan or under any applicable Law; or (Bii) result in any acceleration of accelerate the time of paymentpayment or vesting, funding or vesting material increase the amount of any such benefits compensation or (C) result benefits, or in respect of, any limitation on director, employee or independent contractor of the right of Parent Company or any of its Subsidiaries to amend, merge, terminate or receive a reversion of assets from any Parent Benefit Plan or related trustTarget Company.
(viif) No Parent Benefit Plan provides for The consummation of the gross-up transactions contemplated by this Agreement and the Ancillary Documents will not result in the receipt (whether in cash, property or reimbursement the vesting of Taxes under property) by any “disqualified individual” or any “parachute payment” (as such terms are defined in Section 280G of the Code).
(g) Except as would not be reasonably likely to result in material Liability to the Company or any Target Company, no compensation has been or could reasonably be expected to be includable in the gross income of any current or former employee, director, officer or individual independent contractor of the Company or any Target Company as a result of the operation of Section 409A or 4999 of the Code Code.
(h) Except to the extent required by applicable Law, or otherwiseas would not be reasonably likely to result in material Liability to the Company, neither the Company nor any Target Company provides health or life insurance 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.
Appears in 1 contract
Samples: Business Combination Agreement (Rosecliff Acquisition Corp I)
Benefit Plans. (ia) Section 3.2(j)(iSet forth on Schedule 4.18(a) of the Parent Company Disclosure Letter contains Schedules is a true, true and complete and correct list of each Foreign Plan and Benefit Plan sponsoredmaintained, maintained sponsored or contributed to by Parent or any of its Subsidiaries, or which Parent or any of its Subsidiaries is obligated to sponsor, maintain or contribute to, a Target Company or with respect to which Parent or its Subsidiaries otherwise a Target Company has any liability Liability (the each, a “Parent Company Benefit PlansPlan”). No Parent Benefit Plan is established or maintained outside of the United States or for the benefit of current or former employees of Parent or any of its Subsidiaries residing outside of the United States.
(iib) Parent The Company has delivered or made available to the Company prior to the date of this Agreement a true, correct and complete copy of each Parent Benefit Plan currently in effect and, with respect theretoPurchaser, if applicable, copies of (Ai) all amendments, the current trust plan document for each Company Benefit Plan (or a written summary if a plan document is not available) and any amendments thereto, and any related insurance policies, trust agreements and other funding vehiclearrangements, (ii) agreements, and the most recent summary plan descriptionsdescription for each Company Benefit Plan for which such a summary plan description is required and any summary of material modifications thereto, (Biii) the most recent annual report (Form 5500 series includingfavorable determination, where opinion or advisory letter, as 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 Parent Benefit Plan, (C) the most recent determination letter from the IRS (if applicable) for such Parent Benefit Plan and (D) any notice with respect to or from the IRS or any office or representative of the Department of Labor relating to any unresolved compliance issues in respect of such Parent Benefit Plan.
(iii) Except as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on Parent, (A) each Parent 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 thereunder, (B) each Parent Company Benefit Plan intended to be qualified under Section 401(a) of the Code, (iv) the three (3) most recent annual reports (Form 5500 series) with respect to any Company Benefit Plan, (v) the most recent financial statements with respect to any Company Benefit Plan, (vi) all non-routine notices that were issued by, or non-routine correspondence received from, the IRS, U.S. Department of Labor, or any other Governmental Entity with respect to any Company Benefit Plan within the last three years, and (vii) any material associated administrative agreements with respect to any Company Benefit Plan, in each case, as of the date of this Agreement.
(c) Each Company Benefit Plan has been adopted, established, registered (where required) administered, maintained and operated in material compliance with its terms and the requirements of applicable Law. Each Company Benefit Plan that is intended to meet the requirements of a “qualified plan” under Section 401(a) of the Code has received a favorable determination or opinion letter as to its qualifications from the IRS Internal Revenue Service (“IRS”) or is entitled to rely on an advisory or opinion letter as to its qualifications issued with respect to an IRS approved master and in the form of a prototype or volume submitter planplan with respect to which the IRS has issued a favorable opinion or advisory letter, as applicable, and there are no existing circumstances or any events that have occurred that would reasonably be expected to adversely affect the qualified status of any such plan, (C) neither Parent nor any of its Subsidiaries has engaged in a transaction that has resulted in, or would reasonably be expected to result in, the assessment of a civil penalty upon Parent or any of its Subsidiaries pursuant to Section 409 or 502(i) of ERISA or a tax imposed pursuant to Section 4975 or 4976 Knowledge of the Code that Company, no event has not been satisfied in full, (D) there does not now exist, nor, to the knowledge of Parent, do any circumstances exist occurred and no condition exists that would reasonably be expected to result in, in the loss of any Controlled Group Liability that would be a liability such qualified status of Parent, any of its Subsidiaries such Company Benefit Plan. All contributions or any of their respective ERISA Affiliates, (E) all payments premiums required to be made remitted by the applicable Target Company under the terms of each Company Benefit Plan, or with respect to each Parent Benefit Plan (including by applicable Law, have in all contributions, insurance premiums or intercompany charges) with respect to all prior periods have material respects been remitted in a timely made or paid by Parent or its Subsidiaries fashion in accordance with applicable Law and the provisions of each terms of the Parent applicable Company Benefit Plan, and all Liabilities of the Target Companies related to all Company 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 fully and records of Parent accurately disclosed in accordance with GAAP and applicable accounting principles. No Target Company has incurred or is reasonably expected to incur any Liability for any Tax imposed under Chapter 43 of the Code or civil Liability under Section 502(i) or (F1) there are no pending or, to the knowledge of Parent, threatened claims by or on behalf of any Parent Benefit Plan, by any employee or beneficiary covered under any Parent Benefit Plan or otherwise involving any Parent Benefit Plan or any trusts related thereto (other than routine claims for benefits)ERISA.
(ivd) None of Parent, any of its Subsidiaries or any of their respective ERISA Affiliates maintains, contributes to, or participates in, or has ever during the past six No Company Benefit Plan is a (6i) years maintained, contributed to, or participated in, or otherwise has any obligation or liability in connection with: (A) a plan subject to Title IV or Section 302 of ERISA or Section 412 or Section 430 of the Code, (B) a “multiple employer welfare arrangement” (as defined in Section 3(40) of ERISA), a “multiple employer benefit plan” (as defined in Section 413(c3(35) of the CodeERISA) or a “multiemployer plan” (as defined in Section 3(374001(a) (3) of ERISA), or (C) any plan or arrangement which provides for post-employment or post-retirement medical or welfare benefits for retired or former employees or beneficiaries or dependents thereofin each case, except pursuant to Section 4980B of the Code or other applicable Law.
(v) With respect to each Parent Benefit Plan that is or was subject to Title IV or Section 302 of ERISA or Section 412 or 430 of the Code (each, a “Parent Title IV Plan”): (A) there does not exist any failure to meet the “minimum funding standard” of Section 412 of the Code or 302 Title IV of ERISA, (ii) multiple employer plan described in Section 413 of the Code or Section 210 of ERISA, (iii) nonqualified deferred compensation plan within the meaning of Section 409A(d)(l) of the Code, (iv) “multiple employer welfare arrangement” within the meaning of Section 3(40) of ERISA (whether or not waivedsubject thereto), (Bv) no such plan is in “at-risk” status for purposes provides medical or life insurance benefits beyond termination of Section 430 employment, except as required by applicable Law or until the end of the Codemonth of termination, or (Cvi) provides for any reimbursement, indemnity or gross-up to compensate an employee for any Tax Liability. No Target Company has any Liability under Title IV of ERISA or on account of at any time being considered a single employer under Section 414 of the present value Code with any other Person.
(e) The consummation of accrued the transactions contemplated by this Agreement and the Ancillary Documents will not: (i) entitle any director, employee or individual independent contractor of a Target Company to severance pay or other payment, benefits or compensation under any Company Benefit Plan; (ii) accelerate the time of payment or vesting, or increase the amount of any compensation due, or in respect of, any director, employee or individual independent contractor of a Target Company; (iii) give rise to any forgiveness of indebtedness of any director, employee or individual independent contractor of a Target Company for amounts due or owing to a Target Company; (iv) cause any Target Company to transfer or set aside any assets to fund any benefits under such Parent Title IV any Company Benefit Plan, based upon the actuarial assumptions used for funding purposes or (v) result in the most recent actuarial report prepared by such Parent Title IV Plan’s actuary with respect to such Parent Title IV Plan, did not, as of its latest valuation date, exceed the then current fair market value of the assets of such Parent Title IV Plan allocable to such accrued benefits, an excess parachute payment (D) no reportable event within the meaning of Section 4043(c280G of the Code) or limit the Tax deductibility of ERISA has occurred, any amount payable under any Company Benefit Plan by operation of Section 280G.
(Ef) all premiums to the PBGC have been timely paid in full, (F) There are no liability (other than for premiums to the PBGC) under Title IV of ERISA has been pending audits or is expected to be incurred investigations by Parent or any of its ERISA Affiliates, and (G) the PBGC has not instituted proceedings to terminate Governmental Authority involving any such Parent Title IV Company Benefit Plan and, to the knowledge Knowledge of Parentthe Company, no circumstances exist which could serve as a basis threatened or pending material claims (except for individual claims for benefits payable in the institution of such proceedings.
(vi) Except as set forth on Section 3.2(j)(vi) normal operations of the Parent Disclosure LetterCompany Benefit Plans, neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby (either alone as applicable), suits or in conjunction with proceedings involving any other event) will (A) increase any benefits otherwise payable or trigger any other obligation under any Parent Company Benefit Plan, (B) result in any acceleration nor, to the Knowledge of the time of paymentCompany, funding or vesting are there any facts which would reasonably be expected to give rise to any material liability in the event of any such benefits audit, investigation, claim, suit or (C) result in any limitation on the right of Parent or any of its Subsidiaries to amend, merge, terminate or receive a reversion of assets from any Parent Benefit Plan or related trustproceeding.
(vii) No Parent Benefit Plan provides for the gross-up or reimbursement of Taxes under Section 409A or 4999 of the Code or otherwise.
Appears in 1 contract
Samples: Business Combination Agreement (TradeUP Global Corp)
Benefit Plans. (ia) Section 3.2(j)(i4.9(a) of the Parent Company Disclosure Letter contains Schedule sets forth a true, complete and correct accurate list of each Benefit Plan sponsored, maintained or contributed by Parent or any of its Subsidiaries, or which Parent or any of its Subsidiaries is obligated to sponsor, maintain or contribute to, or with respect to which Parent or its Subsidiaries otherwise has any liability (the “Parent all material Benefit Plans”). No Parent Benefit Plan is established or maintained outside of the United States or for the benefit of current or former employees of Parent or any of its Subsidiaries residing outside of the United States.
(ii) Parent The Company has delivered or made available to the Company prior to the date of this Agreement a true, correct and complete copy of each Parent Benefit Plan currently in effect andParent, with respect to each such Benefit Plan (to the extent applicable thereto) copies of (i) the plan document, as currently in effect, or, if applicablesuch Benefit Plan is not in writing, a written description of such Benefit Plan; (A) all amendments, the current trust (or other funding vehicle) agreements, and the most recent summary plan descriptions, (Bii) the most recent annual report (Form 5500 series including, where applicable, and all schedules and actuarial and accountants’ reportsthereto) filed with the Department of Labor and the most recent actuarial report or other financial statement relating respect to such Parent Benefit Plan, ; (Ciii) the most recent determination summary plan description, and all summaries of material modifications related thereto, distributed with respect to such Benefit Plan; (iv) the most recent determination, opinion or advisory letter from issued by the IRS (if applicable) for with respect to such Parent Benefit Plan Plan; and (Dv) any notice governmental advisory opinions, rulings, compliance statements and closing agreements (other than determination, opinion or advisory letters issued by the IRS) issued during the last three (3) years with respect to or from the IRS or any office or representative of the Department of Labor relating such Benefit Plan, and pending requests related to any unresolved such advisory opinion, rulings, compliance issues in respect of such Parent Benefit Planstatements or closing agreements.
(iiib) Except as would not reasonably be expected to havenot, individually or in the aggregate, have a Company Material Adverse Effect on Parent, Effect: (Ai) each Parent Benefit Plan has been maintained and administered in compliance accordance with its terms and in compliance with applicable Law; (ii) to the knowledge of Company, includingnone of the Company, but any of its Subsidiaries or any other Person has engaged in a prohibited transaction, within the meaning of Section 406 of ERISA or Section 4975 of the Code, for which an exemption is not limited to, ERISA available with respect to any Benefit Plan; (iii) all contributions due from the Company or any of its Subsidiaries to the Benefit Plans on or before the Closing Date have been timely paid or properly accrued for on the Company’s financial statements; and (iv) neither the Company nor any of its Subsidiaries has incurred a Tax or penalty imposed by Section 4980F of the Code and in each case the regulations thereunder, or Section 502 of ERISA.
(Bc) each Parent Each Benefit Plan that is intended to be qualified under section 401(a) of the Code (i) is the subject of an unrevoked favorable determination letter from the IRS, (ii) has a request for such a letter pending with the IRS or has remaining a period of time under the Code or applicable Treasury regulations or IRS pronouncements in which to request, and make any amendments necessary to obtain, such a letter from the IRS, or (iii) is a prototype or volume submitter plan entitled, under applicable IRS guidance, to rely on the favorable opinion or advisory letter issued by the IRS to the sponsor of such prototype or volume submitter plan. To the knowledge of the Company, nothing has occurred which has resulted or which could reasonably be expected to result in the loss of the qualification of any such Benefit Plan under Section 401(a) of the Code has received a favorable determination or opinion letter as to its qualifications from the IRS or is entitled to rely on an advisory or opinion letter as to its qualifications 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 adversely affect the qualified status of any such plan, (C) neither Parent nor any of its Subsidiaries has engaged in a transaction that has resulted in, which requires or would reasonably be expected to result inrequire action under the employee plans compliance resolution programs of the IRS to preserve such qualification.
(d) No Benefit Plan is subject to Section 412 of the Code or Section 302 or Title IV of ERISA, and neither the assessment Company nor any ERISA Affiliate has any material liability with respect to any “employee benefit plan” within the meaning of Section 3(3) of ERISA that is subject to Section 412 of the Code or Section 302 or Title IV of ERISA. No Benefit Plan is a civil penalty upon Parent “multiemployer plan” within the meaning of Section 3(37) of ERISA (a “Multiemployer Plan”) and neither the Company nor any ERISA Affiliate has any material liability with respect to any Multiemployer Plan.
(e) With respect to each Benefit Plan that is subject to Title IV of ERISA or Section 412 of the Code: (i) no application for a funding waiver or an extension of any of its Subsidiaries amortization period pursuant to Section 409 412, Section 430 or 502(i) of ERISA or a tax imposed pursuant to Section 4975 or 4976 431 of the Code that has been made with respect to such Benefit Plan; (ii) the Pension Benefit Guaranty Corporation (“PBGC”) has not been satisfied in full, (D) there does not now exist, instituted proceedings nor, to the knowledge of Parentthe Company, do is there a reasonable basis for the commencement of any circumstances exist that would reasonably be expected to result in, such proceeding by the PBGC; and (iii) neither the Company nor any Controlled Group Liability that would be a ERISA Affiliate has incurred any liability of Parent, any of its Subsidiaries or any of their respective ERISA Affiliates, (E) all payments required to be made by or with respect to each Parent Benefit Plan (including all contributions, insurance premiums or intercompany charges) with respect to all prior periods have been timely made or paid by Parent or its Subsidiaries in accordance with the provisions of each of the Parent Benefit Plans and applicable Law or, to the extent PBGC that will not be satisfied prior to the Effective Time, other than required premium payments to be made or paid on or before the date hereof, have been reflected on the books and records of Parent in accordance with GAAP and PBGC that are not yet due.
(Ff) there are There is no pending or, to the knowledge of Parentthe Company, threatened claims by or on behalf of any Parent Benefit Plan, by any employee or beneficiary covered under any Parent Benefit Plan or otherwise involving any Parent Benefit Plan or any trusts related thereto (other than routine claims for benefits).
(iv) None of Parent, any of its Subsidiaries or any of their respective ERISA Affiliates 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 plan subject to Title IV or Section 302 of ERISA or Section 412 or Section 430 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 plan” (as defined in Section 3(37) of ERISA), or (C) any plan or arrangement which provides for post-employment or post-retirement medical or welfare benefits for retired or former employees or beneficiaries or dependents thereof, except pursuant to Section 4980B of the Code or other applicable Law.
(v) With respect to each Parent Benefit Plan that is subject to Title IV or Section 302 of ERISA or Section 412 or 430 of the Code (each, a “Parent Title IV Plan”): (A) there does not exist any failure to meet the “minimum funding standard” of Section 412 of the Code or 302 of ERISA (whether or not waived), (B) no such plan is in “at-risk” status for purposes of Section 430 of the Code, (C) the present value of accrued benefits under such Parent Title IV Plan, based upon the actuarial assumptions used for funding purposes in the most recent actuarial report prepared by such Parent Title IV Plan’s actuary with respect to such Parent Title IV Plan, did not, as of its latest valuation date, exceed the then current fair market value of the assets of such Parent Title IV Plan allocable to such accrued benefits, (D) no reportable event within the meaning of Section 4043(c) of ERISA has occurred, (E) all premiums Action relating to the PBGC have been timely paid Benefit Plans which is reasonably likely to result in fullmaterial liability, (F) no liability (other than for premiums to the PBGC) under Title IV of ERISA has been or is expected to be incurred by Parent or any of its ERISA Affiliates, and (G) the PBGC has not instituted proceedings to terminate any such Parent Title IV Plan and, to the knowledge of Parentthe Company, there is no circumstances exist which could serve as a reasonable basis for any such Action. Neither the institution Company nor any of its Subsidiaries has any material obligations for medical or life insurance benefits subsequent to termination of employment to employees or their beneficiaries under any Benefit Plan or collective bargaining agreement except (i) as required by applicable Laws, (ii) the continuation of coverage through the month of termination if required pursuant to such proceedingsBenefit Plan, (iii) disability benefits attributable to disabilities occurring prior to termination of employment with the Company and its Subsidiaries, and (iv) conversion rights.
(vig) Except as set forth on Section 3.2(j)(vi) of the Parent Disclosure Letter, neither Neither the execution and delivery of this Agreement, the adoption of this Agreement by the Company’s stockholders, nor the consummation of the transactions contemplated hereby (either alone hereby, whether individually or in conjunction combination with any other event) event (regardless of whether that other event has occurred or will occur), will (Ai) increase entitle any benefits otherwise payable or trigger any other obligation under any Parent Benefit Plan, (B) result in any acceleration employees of the time of payment, funding or vesting of any such benefits or (C) result in any limitation on the right of Parent Company or any of its Subsidiaries to amendseverance pay or any increase in severance pay upon any termination of employment after the date hereof, merge(ii) accelerate the time of payment or vesting or result in any payment or funding (through a grantor trust or otherwise) of or increase in compensation or benefits under any of the Benefit Plans, terminate (iii) result in payments under any of the Benefit Plans or receive a reversion of assets from any Parent Benefit Plan Contract or related trust.
(vii) No Parent Benefit Plan provides for the gross-up arrangement that would not be deductible or reimbursement of Taxes which deduction will be deferred under Section 409A 162, Section 404 or 4999 Section 280G of the Code or otherwisewould reimburse any Person for any excise or additional Taxes under Section 4999 or (iv) result in the payment of any “excess parachute payments” within the meaning of Section 280G of the Code (without regard to the exception set forth in Section 280G(b)(4) of the Code).
(h) Except as would not, individually or in the aggregate, have a Company Material Adverse Effect, each Benefit Plan subject to the laws of any jurisdiction outside of the United States (i) if intended to qualify for special tax treatment, meets all requirements for such treatment, (ii) does not have any unfunded liabilities determined in accordance with GAAP that have not been properly accrued on the Company’s financial statements or that will not be offset by insurance, and (iii) if required to be registered, has been registered with the appropriate regulatory authorities and has been maintained in good standing with the appropriate regulatory authorities.
(i) Each Employee Benefit Plan that constitutes a nonqualified deferred compensation plan within the meaning of Section 409A of the Code has been timely amended to comply with Section 409A of the Code and applicable guidance thereunder, including but not limited the final regulations promulgated thereunder.
(j) None of the assets of any Benefit Plan include any capital stock or other securities issued by the Company or any ERISA Affiliate.
Appears in 1 contract
Samples: Merger Agreement (Intermec, Inc.)
Benefit Plans. (a) Schedule 3.15(a)(i) sets forth a complete list of all material Benefit Plans, and Schedule 3.15(a)(ii) denotes each material Benefit Plan that is sponsored or maintained by any Acquired Company (each such Benefit Plan, an “Acquired Company Plan”).
(b) Correct and complete copies of the following have been made available to Buyer: (i) Section 3.2(j)(i) of the Parent Disclosure Letter contains a true, complete and correct list of each current plan document for each Benefit Plan sponsoredPlan, maintained (ii) the most recent determination letter, ruling or contributed notice issued by Parent or any of its Subsidiaries, or which Parent or any of its Subsidiaries is obligated to sponsor, maintain or contribute to, or Governmental Entity with respect to which Parent each Benefit Plan, if any, (iii) the Form 5500 Annual Reports (or its Subsidiaries otherwise has evidence of any liability (the “Parent Benefit Plans”). No Parent Benefit Plan is established or maintained outside of the United States or applicable exemption) for the benefit of current or former employees of Parent or any of its Subsidiaries residing outside of the United States.
three most recent plan years (ii) Parent has delivered or made available to the Company prior to the date of this Agreement a true, correct and complete copy of each Parent extent such forms are required for any Benefit Plan currently in effect and, with respect thereto, if applicablePlan), (Aiv) all amendments, the current trust (or other funding vehicle) agreements, and the most recent summary plan descriptions, description (Band any summaries of material modifications thereto) 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 Parent any Benefit Plan, (Cv) all current and prior trust agreements, insurance contracts, and other documents relating to the most recent determination letter from the IRS (if applicable) for such Parent funding or payment of benefits under any Benefit Plan Plan, and (Dvi) any notice to other documents, forms or from the IRS or any office or representative of the Department of Labor other instruments relating to any unresolved compliance issues in respect Benefit Plan reasonably requested by Buyer. A written description of such Parent Benefit Plan.
(iii) Except as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on Parent, (A) each Parent material terms of any unwritten Benefit Plan has been maintained made available to Buyer.
(c) Each Benefit Plan has been maintained, operated, funded and administered in material compliance with its terms and with any related documents or agreements and all applicable Law, Laws (including, but not limited toto the extent applicable, the applicable requirements of ERISA and the Code). There have been no prohibited transactions or breaches of any of the duties imposed on “fiduciaries” (within the meaning of Section 3(21) of ERISA) by ERISA with respect to the Benefit Plans that would result in any liability or excise tax under ERISA or the Code being imposed on any Acquired Company. No event has occurred, and in each case no conditions or circumstance exists, that would reasonably be expected to subject any Acquired Company or any Benefit Plan, to penalties or excise taxes under sections 4980D or 4980H of the regulations thereunder, Code.
(Bd) each Parent Each Benefit Plan intended to be qualified under Section 401(a) of the Code is so qualified and has received a favorable determination or opinion letter as to its qualifications from been determined by the IRS or is entitled to rely on an advisory or opinion letter as to its qualifications issued with respect to an IRS approved master and prototype or volume submitter planbe so qualified, and there are no existing circumstances or each trust created thereunder has been determined by the IRS to be exempt from tax under the provisions of Section 501(a) of the Code, and nothing has occurred since the date of any events that have occurred such determination that would reasonably be expected to adversely affect give the qualified status of IRS grounds to revoke such determination.
(e) Except as set forth in Schedule 3.15(e), neither any such plan, (C) neither Parent Acquired Company nor any member of its Subsidiaries the Controlled Group currently has, and at no time in the past has engaged had, an obligation to contribute to a “defined benefit plan” as defined in Section 3(35) of ERISA, a transaction that has resulted inpension plan subject to the funding standards of Section 302 of ERISA or Section 412 of the Code, or would reasonably be expected to result in, the assessment of a civil penalty upon Parent or any of its Subsidiaries pursuant to “multiemployer plan” as defined in Section 409 or 502(i3(37) of ERISA or a tax imposed pursuant to Section 4975 or 4976 414(f) of the Code that has not been satisfied in full, or a “multiple employer plan” within the meaning of Section 210(a) of ERISA or Section 413(c) of the Code.
(Df) there does not now exist, nor, With respect to each group health plan benefiting any current or former employee of an Acquired Company or any member of the knowledge of Parent, do any circumstances exist that would reasonably be expected to result in, any Controlled Group Liability that would be is subject to Section 4980B of the Code, each Acquired Company and each member of the Controlled Group has complied in all material respects with the continuation coverage requirements of Section 4980B of the Code and Part 6 of Subtitle B of Title I of ERISA.
(g) No Benefit Plan is or at any time was funded through a liability “welfare benefit fund” as defined in Section 419(e) of Parentthe Code, and no benefits under any Benefit Plan are or at any time have been provided through a voluntary employees’ beneficiary association (within the meaning of its Subsidiaries subsection 501(c)(9) of the Code) or a supplemental unemployment benefit plan (within the meaning of Section 501(c)(17) of the Code).
(h) There is no pending or Threatened assessment, complaint, proceeding, or investigation of any of their respective ERISA Affiliates, (E) all payments required to be made by kind in any court or government agency with respect to each Parent any Benefit Plan (including all contributions, insurance premiums or intercompany charges) with respect to all prior periods have been timely made or paid by Parent or its Subsidiaries in accordance with the provisions of each of the Parent 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 Parent in accordance with GAAP and (F) there are no pending or, to the knowledge of Parent, threatened claims by or on behalf of any Parent Benefit Plan, by any employee or beneficiary covered under any Parent Benefit Plan or otherwise involving any Parent Benefit Plan or any trusts related thereto (other than routine claims for benefits), nor, to Acquired Companies’ Knowledge, is there any basis for one.
(ivi) None With respect to any insurance policy providing funding for benefits under any Benefit Plan, (i) there is no liability of Parentany Acquired Company in the nature of a retroactive rate adjustment, any of its Subsidiaries or any of their respective ERISA Affiliates maintains, contributes toloss sharing arrangement, or participates inother actual or contingent liability, nor would there be any such liability if such insurance policy was terminated on the date hereof, and (ii) no insurance company issuing any such policy is in receivership, conservatorship, liquidation or has ever during similar proceeding and, to the past six Acquired Companies’ Knowledge, no such proceedings with respect to any such insurer are imminent.
(6j) years maintainedNo Benefit Plan provides benefits, contributed toincluding, without limitation, death or participated inmedical benefits, beyond termination of service or otherwise has retirement other than (i) coverage mandated by law or (ii) death or retirement benefits under any obligation or liability in connection with: (A) a plan subject Benefit Plan that is intended to Title IV or be qualified under Section 302 of ERISA or Section 412 or Section 430 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(c401(a) of the Code) or a “multiemployer plan” (as defined in Section 3(37) of ERISA), or (C) any plan or arrangement which provides for post-employment or post-retirement medical or welfare benefits for retired or former employees or beneficiaries or dependents thereof, except pursuant to Section 4980B of the Code or other applicable Law.
(v) With respect to each Parent Benefit Plan that is subject to Title IV or Section 302 of ERISA or Section 412 or 430 of the Code (each, a “Parent Title IV Plan”): (A) there does not exist any failure to meet the “minimum funding standard” of Section 412 of the Code or 302 of ERISA (whether or not waived), (B) no such plan is in “at-risk” status for purposes of Section 430 of the Code, (C) the present value of accrued benefits under such Parent Title IV Plan, based upon the actuarial assumptions used for funding purposes in the most recent actuarial report prepared by such Parent Title IV Plan’s actuary with respect to such Parent Title IV Plan, did not, as of its latest valuation date, exceed the then current fair market value of the assets of such Parent Title IV Plan allocable to such accrued benefits, (D) no reportable event within the meaning of Section 4043(c) of ERISA has occurred, (E) all premiums to the PBGC have been timely paid in full, (F) no liability (other than for premiums to the PBGC) under Title IV of ERISA has been or is expected to be incurred by Parent or any of its ERISA Affiliates, and (G) the PBGC has not instituted proceedings to terminate any such Parent Title IV Plan and, to the knowledge of Parent, no circumstances exist which could serve as a basis for the institution of such proceedings.
(vik) Except as set forth on Section 3.2(j)(vi) of the Parent Disclosure Letterin Schedule 3.15(k), neither the execution and delivery execution, delivery, or performance of this Agreement nor the consummation of the transactions contemplated hereby (either alone or in conjunction with any other event) Transactions will (Ai) increase any benefits otherwise payable or trigger any other obligation constitute a stated triggering event under any Parent Benefit Plan, (B) Plan that will result in any acceleration payment (whether of severance pay or otherwise) becoming due from an Acquired Company to any current or former officer, employee, director or consultant (or dependents of such Persons), or (ii) accelerate the time of paymentpayment or vesting, funding or vesting increase the amount of compensation due to any current or former officer, employee, director or consultant (or dependents of such Persons) of an Acquired Company.
(l) No Acquired Company has agreed or committed to institute any plan, program, arrangement or agreement for the benefit of employees or former employees of an Acquired Company other than the Benefit Plans, or to make any amendments to any of the Benefit Plans.
(m) Each Acquired Company has reserved all rights necessary to amend or terminate each of the Acquired Company Plans without the consent of any other Person.
(n) No Benefit Plan provides benefits to any individual who is not a current or former employee of an Acquired Company, or the dependents or other beneficiaries of any such benefits current or former employee.
(Co) No amount that could be received (whether in cash or property or the vesting of property) as a result in of any limitation on of the right Transactions by any employee, officer or director of Parent any Acquired Company or any of its Subsidiaries to amendAffiliates who is a “disqualified individual” (as such term is defined in Treasury Regulation Section 1.280G-1) under any employment, mergeseverance or termination agreement, terminate other compensation arrangement or receive a reversion of assets from any Parent Benefit Plan or related trustcurrently in effect would be characterized as an “excess parachute payment” (as such term is defined in Section 280G(b)(1) of the Code).
(viip) No Parent All (i) contributions and premium payments that are required to be paid with respect to, (ii) benefits, expenses, and other amounts due and payable under, and (iii) transfers or payments required to be made to, any Benefit Plan provides for have been made within the gross-up or reimbursement of Taxes under Section 409A or 4999 of time periods prescribed by ERISA, the Code or otherwiseby Contract (including any valid extensions), and all such amounts for any period ending on or before the applicable Closing Date that are not yet due have been made to each Benefit Plan.
Appears in 1 contract
Benefit Plans. (i) Section 3.2(j)(i3.2(i)(i) of the Parent Delta Disclosure Letter contains Schedule sets forth a true, true and complete and correct list of each material Benefit Plan with or for the benefit of any current or former foreign or domestic employee, officer or director of, or consultant to, Delta or any of its Subsidiaries or ERISA Affiliates that is sponsored, maintained or contributed to by Parent or any of its Subsidiaries, or which Parent Delta or any of its Subsidiaries is obligated to sponsor, maintain or contribute to, ERISA Affiliates or with respect to under which Parent or its Subsidiaries otherwise has any liability (the “Parent Benefit Plans”). No Parent Benefit Plan is established or maintained outside of the United States or for the benefit of current or former employees of Parent Delta or any of its Subsidiaries residing outside or ERISA Affiliates have any material obligations or liabilities (collectively, the “Delta Benefit Plans”) as of the United Statesdate hereof.
(ii) Parent Delta has delivered or made available to the Company prior to the date of this Agreement Northwest a true, correct and complete copy of each Parent Delta Benefit Plan currently in effect and, with respect thereto, if applicable, (A) all amendments, the current trust (or other funding vehicle) agreements, and the most recent summary plan descriptionsdescription, insurance contracts, (B) the most recent annual report (Form 5500 series including, where applicable, all schedules and actuarial and accountants’ reports) filed with the Department of Labor IRS and the most recent actuarial report or other financial statement relating to such Parent Delta Benefit Plan, Plan and (C) the most recent determination letter from the IRS (if applicable) for such Parent Benefit Plan and (D) any notice to or from the IRS or any office or representative of the Department of Labor relating to any unresolved compliance issues in respect of such Parent Delta Benefit Plan.
(iii) Except as would not reasonably be expected to havenot, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect on ParentDelta and its Subsidiaries, taken as a whole, (A) each Parent Delta Benefit Plan has been maintained operated and administered in compliance all respects with its terms and with applicable Applicable Law, including, but not limited to, ERISA and ERISA, the Code and in each case the regulations thereunder, ; (B) with respect to each Parent of the Delta Benefit Plan Plans intended to be qualified under Section 401(a) of the Code Code, the IRS has received issued a favorable determination or opinion letter as to its qualifications from the IRS or is entitled to rely on an advisory or opinion letter as to its qualifications issued with respect to an IRS approved master such plan and prototype or volume submitter planthe related trust that has not been revoked, and there are no existing circumstances or any events that have occurred that would could reasonably be expected to adversely affect the qualified status of any such plan, ; (C) neither Parent nor no Delta Benefit Plan is subject to Title IV or Section 302 and 303 of ERISA or Section 412, 430 or 4971 of the Code; (D) no Delta Benefit Plan provides benefits, including, without limitation, death or medical benefits (whether or not insured), with respect to current or former employees or directors of Delta or its Subsidiaries beyond their retirement or other termination of service, other than (1) coverage mandated by applicable law or (2) death benefits or retirement benefits under any “employee pension plan” (as such term is defined in Section 3(2) of ERISA); (E) no liability under Title IV of ERISA has been incurred by Delta, its Subsidiaries or any of their respective ERISA Affiliates that has not been satisfied in full, and no condition exists that presents a risk to Delta, its Subsidiaries or any of their respective ERISA Affiliates of incurring a liability thereunder (other than premiums payable to the Pension Benefit Guaranty Corporation); (F) except for Delta Benefit Plans for which an election for the alternative funding schedule under Section 402 of the Pension Protection Act of 2006 has been made, all contributions or other amounts payable by Delta or its Subsidiaries as of the Effective Time pursuant to each Delta Benefit Plan in respect of current or prior plan years have been timely paid or accrued in accordance with GAAP; (G) with respect to Delta Benefit Plans for which an election for the alternative funding schedule under Section 402 of the Pension Protection Act of 2006 has been made, all required contributions or other amounts payable by Delta or its Subsidiaries have been timely paid and each such Delta Benefit Plan is in compliance with Section 402 of the Pension Protection Act of 2006; (H) neither Delta nor its Subsidiaries has engaged in a transaction that has resulted in, in connection with which Delta or would reasonably its Subsidiaries could be expected subject to result in, the assessment of either a civil penalty upon Parent or any of its Subsidiaries assessed pursuant to Section 409 or 502(i) of ERISA or a tax imposed pursuant to Section 4975 or 4976 of the Code that has not been satisfied in full, (D) there does not now exist, nor, to the knowledge of Parent, do any circumstances exist that would reasonably be expected to result in, any Controlled Group Liability that would be a liability of Parent, any of its Subsidiaries or any of their respective ERISA Affiliates, (E) all payments required to be made by or with respect to each Parent Benefit Plan (including all contributions, insurance premiums or intercompany charges) with respect to all prior periods have been timely made or paid by Parent or its Subsidiaries in accordance with the provisions of each of the Parent 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 Parent in accordance with GAAP Code; and (FI) there are no pending or, to the knowledge of Parentpending, threatened or anticipated claims by or on behalf of any Parent Benefit Plan, by any employee or beneficiary covered under any Parent Benefit Plan or otherwise involving any Parent Benefit Plan or any trusts related thereto (other than routine claims for benefits)) by, on behalf of or against any of the Delta Benefit Plans or any trusts related thereto.
(iv) None of ParentExcept as set forth in the Delta CBAs, neither Delta nor any of its Subsidiaries (1) as of the date hereof, 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 ERISA Affiliates maintainsworkforces (or any part of them) or (2) has any express commitment, contributes whether legally enforceable or not, to, or participates in, or has ever during the past six (6) years maintained, contributed not to, modify, change or participated in, or otherwise has terminate any obligation or liability in connection with: (A) a plan subject to Title IV or Section 302 of ERISA or Section 412 or Section 430 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 plan” (as defined in Section 3(37) of ERISA), or (C) any plan or arrangement which provides for post-employment or post-retirement medical or welfare benefits for retired or former employees or beneficiaries or dependents thereof, except pursuant to Section 4980B of the Code or other applicable LawDelta Benefit Plan.
(v) With Section 3.2(i)(v) of the Delta Disclosure Schedule sets forth a true and complete list of each Multiemployer Plan to which Delta or any ERISA Affiliate of Delta contributes or is required to contribute, or to which, or with respect to each Parent Benefit which, Delta or any ERISA Affiliate of Delta has or could have any material liability (a “Delta Multiemployer Plan”). If any Delta Multiemployer Plan that is subject to Title IV or Section 302 of ERISA or Section 412 or 430 of the Code (eachERISA, a “Parent Title IV Plan”): then, (A) there does not exist neither Delta nor any failure to meet the ERISA Affiliate of Delta has made or suffered a “minimum funding standardcomplete withdrawal” or a “partial withdrawal,” as such terms are respectively defined in Sections 4203 and 4205 of Section 412 of the Code ERISA, from any such Delta Multiemployer Plan (or 302 of ERISA (whether or not waivedany liability resulting therefrom has been satisfied in full), (B) no event has occurred that presents a material risk of a complete or partial withdrawal from any such plan is in “at-risk” status for purposes of Section 430 of the CodeDelta Multiemployer Plan, (C) neither Delta nor any ERISA Affiliate of Delta has any contingent liability under Section 4204 of ERISA in respect of any such Delta Multiemployer Plan and (D) to the Knowledge of Delta no circumstances exist that present value a material risk that any such Delta Multiemployer Plan will go into reorganization. No Delta Benefit Plan subject to ERISA is a plan that has two or more contributing sponsors at least two of accrued benefits whom are not under such Parent Title IV Plancommon control, based upon within the actuarial assumptions used for funding purposes meaning of Section 4063 of ERISA.
(vi) Except as would not, individually or in the most recent actuarial report prepared by such Parent Title IV Plan’s actuary aggregate, reasonably be expected to have a Material Adverse Effect on Delta and its Subsidiaries, taken as a whole, with respect to each Delta Benefit Plan established or maintained outside of the United States for the benefit of employees of Delta or any Subsidiary of Delta residing outside the United States (each, a “Delta Foreign Plan”): (i) each Delta Foreign Plan is in compliance with the applicable provisions of the laws and regulations regarding employee benefits, mandatory contributions and retirement plans of each jurisdiction applicable to such Parent Title IV Delta Foreign Plan, did not, as of its latest valuation date, exceed ; (ii) each Delta Foreign Plan required to be registered has been registered and has been maintained in good standing with applicable regulatory authorities and (iii) the then current fair market value of the assets of each funded Delta Foreign Plan, the liability of each insurer for any Delta Foreign Plan funded through insurance or the book reserve established for any Delta Foreign Plan, together with any accrued contributions, is sufficient to procure or provide for the accrued benefit obligations, as of the Closing Date, with respect to all current and former participants in such Parent Title IV Plan allocable plan according to the actuarial assumptions and valuations most recently used to determine employer contributions to such Delta Foreign Plan and no transaction contemplated by this Agreement shall cause such assets or insurance obligations to be less than such benefit obligations, and any and all amounts required to be accrued with respect to any Delta Foreign Plan or pursuant to any statutory requirements pertaining to employee benefits, (D) no reportable event within the meaning of Section 4043(c) of ERISA has occurredmandatory contributions, (E) all premiums to the PBGC retirement plans or similar benefits, have been properly and timely paid in fullaccrued, (F) no liability (other than for premiums including accruals relating to the PBGC) under Title IV of ERISA has been any severance, termination pay or is expected to be incurred by Parent or any of its ERISA Affiliates, and (G) the PBGC has not instituted proceedings to terminate any such Parent Title IV Plan and, to the knowledge of Parent, no circumstances exist which could serve as a basis for the institution of such proceedingsprofit sharing benefits.
(vivii) Except as set forth on Section 3.2(j)(vi) of the Parent Disclosure Letter, neither 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 (Ai) materially increase any benefits otherwise payable or trigger any other obligation under any Parent Delta Benefit Plan, Plan or (Bii) result in any acceleration of the time of payment, funding or vesting of any such benefits or (C) result in any limitation on the right of Parent or any of its Subsidiaries to amend, merge, terminate or receive a reversion of assets from any Parent Benefit Plan or related trustbenefits.
(vii) No Parent Benefit Plan provides for the gross-up or reimbursement of Taxes under Section 409A or 4999 of the Code or otherwise.
Appears in 1 contract
Benefit Plans. (ia) Section 3.2(j)(i) of the Parent Disclosure Letter contains a true, A true and complete and correct list of each Benefit Plan sponsoredof a Target Company is set forth on Schedule 3.16(a) (each, maintained a “Company Benefit Plan”). With respect to each Company Benefit Plan, there are no funded benefit obligations for which contributions have not been made or contributed properly accrued and there are no unfunded benefit obligations that have not been accounted for by Parent or any of its Subsidiariesreserves, or which Parent or otherwise properly footnoted in accordance with GAAP on the Company Financials. No Target Company has any of its Subsidiaries is obligated to sponsor, maintain or contribute to, or Liability with respect to which Parent any collectively-bargained for plans, whether or its Subsidiaries otherwise has any liability (not subject to the “Parent Benefit Plans”). No Parent Benefit Plan is established or maintained outside provisions of the United States or for the benefit of current or former employees of Parent or any of its Subsidiaries residing outside of the United StatesERISA.
(iib) Parent has delivered or made available to the Each Company prior to the date of this Agreement a true, correct and complete copy of each Parent Benefit Plan currently in effect and, with respect thereto, if applicable, (A) all amendments, the current trust (or other funding vehicle) agreements, and the most recent summary plan descriptions, (B) 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 Parent Benefit Plan, (C) the most recent determination letter from the IRS (if applicable) for such Parent Benefit Plan and (D) any notice to or from the IRS or any office or representative of the Department of Labor relating to any unresolved compliance issues in respect of such Parent Benefit Plan.
(iii) Except as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on Parent, (A) each Parent 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 thereunder, (B) each Parent Benefit Plan which is intended to be qualified under “qualified” within the meaning of Section 401(a) of the Code has been determined by the IRS to be so qualified (or is based on a prototype plan which has received a favorable determination or opinion letter as to its qualifications from the IRS or is entitled to rely on an advisory or opinion letter as to its qualifications 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 letter). No fact exists which could reasonably be expected to adversely affect the qualified status of any such plan, Company Benefit Plans or the exempt status of such trusts.
(Cc) neither Parent nor any of its Subsidiaries has engaged in a transaction that has resulted in, or would reasonably be expected to result in, the assessment of a civil penalty upon Parent or any of its Subsidiaries pursuant to Section 409 or 502(i) of ERISA or a tax imposed pursuant to Section 4975 or 4976 of the Code that has not been satisfied in full, (D) there does not now exist, nor, to the knowledge of Parent, do any circumstances exist that would reasonably be expected to result in, any Controlled Group Liability that would be a liability of Parent, any of its Subsidiaries or any of their respective ERISA Affiliates, (E) all payments required to be made by or with With respect to each Parent Company Benefit Plan which covers any current or former officer, director, consultant or employee (or beneficiary thereof) of a Target Company, the Company has provided to Buyer accurate and complete copies, if applicable, of: (i) all current Company Benefit Plan texts and agreements and related trust agreements or annuity Contracts (including any amendments, modifications or supplements thereto); (ii) all contributionscurrent summary plan descriptions and material modifications thereto; (iii) the three (3) most recent Forms 5500, insurance premiums or intercompany chargesif applicable, and annual report, including all schedules thereto; (iv) the most recent annual and periodic accounting of plan assets; (v) the three (3) most recent nondiscrimination testing reports; (vi) the most recent determination letter received from the IRS, if any; (vii) the most recent actuarial valuation, if any; and (viii) all material communications with any Governmental Authority in the past three (3) years.
(d) With respect to each Company Benefit Plan: (i) such Company Benefit Plan has been administered and enforced in all prior periods have been timely made or paid by Parent or its Subsidiaries material respects in accordance with its terms, the provisions Code and ERISA; (ii) no breach of each of the Parent Benefit Plans and applicable Law orfiduciary duty has occurred; (iii) no Action is pending, 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 Parent in accordance with GAAP and (F) there are no pending or, to the knowledge of ParentCompany’s Knowledge, threatened claims by or on behalf of any Parent Benefit Plan, by any employee or beneficiary covered under any Parent Benefit Plan or otherwise involving any Parent Benefit Plan or any trusts related thereto (other than routine claims for benefitsbenefits arising in the ordinary course of administration).
; and (iv) None of Parentno prohibited transaction, any of its Subsidiaries or any of their respective ERISA Affiliates 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 as defined in connection with: (A) a plan subject to Title IV or Section 302 406 of ERISA or Section 412 or Section 430 4975 of the Code, has occurred, excluding transactions effected pursuant to a statutory or administration exemption for which the Target Companies reasonably could be expected to have any material Liability.
(Be) No Company Benefit Plan is a “multiple employer welfare arrangement” (as defined in Section 3(40) of ERISA), a “multiple employer benefit plan” (as defined in Section 413(c414(j) of the Code) or ), a “multiemployer plan” (as defined in Section 3(37) of ERISA)) or a “multiple employer plan” (as described in Section 413(c) of the Code) or is otherwise subject to Title IV of ERISA or Section 412 of the Code, and no Target Company has incurred any Liability or otherwise could have any Liability, contingent or otherwise, under Title IV of ERISA and no condition presently exists that is expected to cause such Liability to be incurred. No Company Benefit Plan will become a multiple employer plan with respect to any Target Company immediately after the Closing Date. No Target Company currently maintains or has ever maintained, or (Cis required currently or has ever been required to contribute to or otherwise participate in, a multiple employer welfare arrangement or voluntary employees’ beneficiary association as defined in Section 501(c)(9) any plan or arrangement which provides for post-employment or post-retirement medical or welfare benefits for retired or former employees or beneficiaries or dependents thereof, except pursuant to Section 4980B of the Code or other applicable LawCode.
(vf) With respect to each Parent Company Benefit Plan which is a “welfare plan” (as described in Section 3(1) of ERISA): (i) no such plan provides medical benefits with respect to current or former employees of a Target Company beyond their termination of employment (other than coverage mandated by Law); and (ii) there are no reserves, assets, surplus or prepaid premiums under any such plan. Each Target Company has complied in all material respects with the provisions of Section 601 et seq. of ERISA and Sections 4980B, 4980D, 4980H, 6721 and 6722 of the Code and no circumstances exist that could reasonably be expected to result in the imposition of any Tax or penalty pursuant to such sections.
(g) The consummation of the transactions contemplated by this Agreement and the Ancillary Documents will not: (i) entitle any individual to severance pay, unemployment compensation or other benefits or compensation; (ii) accelerate the time of payment or vesting, or increase the amount of any compensation due, or in respect of, any individual; or (iii) result in or satisfy a condition to the payment of compensation that would, in combination with any other payment, result in an “excess parachute payment” within the meaning of Section 280G of the Code. No Target Company has incurred any Liability for any Tax imposed under Chapter 43 of the Code or civil liability under Section 502(i) or (l) of ERISA.
(h) Each Company Benefit Plan that is subject to Title IV or Section 302 of ERISA or Section 412 or 430 409A of the Code (each, a “Parent Title IV Section 409A Plan”): (A) there does not exist any failure to meet as of the “minimum funding standard” date hereof is indicated as such on Schedule 3.18(h). No options or other equity-based awards have been issued or granted by the Company that are, or are subject to, a Section 409A Plan. Each Section 409A Plan has been administered in material compliance, and is in documentary compliance, with the applicable provisions of Section 412 of the Code or 302 of ERISA (whether or not waived), (B) no such plan is in “at-risk” status for purposes of Section 430 409A of the Code, (C) the present value of accrued benefits regulations thereunder and other official guidance issued thereunder. No payment to be made under such Parent Title IV Planany Section 409A Plan is, based upon or to the actuarial assumptions used for funding purposes in the most recent actuarial report prepared by such Parent Title IV Plan’s actuary with respect to such Parent Title IV Plan, did not, as of its latest valuation date, exceed the then current fair market value Knowledge of the assets of such Parent Title IV Plan allocable Company, will be, subject to such accrued benefits, (D) no reportable event within the meaning penalties of Section 4043(c) of ERISA has occurred, (E) all premiums to the PBGC have been timely paid in full, (F) no liability (other than for premiums to the PBGC) under Title IV of ERISA has been or is expected to be incurred by Parent or any of its ERISA Affiliates, and (G) the PBGC has not instituted proceedings to terminate any such Parent Title IV Plan and, to the knowledge of Parent, no circumstances exist which could serve as a basis for the institution of such proceedings.
(vi) Except as set forth on Section 3.2(j)(vi409A(a)(1) of the Parent Disclosure LetterCode. There is no Contract or plan to which any Target Company is a party or by which it is bound to compensate any employee, neither the execution and delivery of this Agreement nor the consummation consultant or director for penalty taxes paid pursuant to Section 409A of the transactions contemplated hereby (either alone or in conjunction with any other event) will (A) increase any benefits otherwise payable or trigger any other obligation under any Parent Benefit Plan, (B) result in any acceleration of the time of payment, funding or vesting of any such benefits or (C) result in any limitation on the right of Parent or any of its Subsidiaries to amend, merge, terminate or receive a reversion of assets from any Parent Benefit Plan or related trustCode.
(vii) No Parent Benefit Plan provides for the gross-up or reimbursement of Taxes under Section 409A or 4999 of the Code or otherwise.
Appears in 1 contract
Benefit Plans. (ia) Section 3.2(j)(iSet forth on Schedule 3.21(a) of the Parent Disclosure Letter contains is a true, true and complete and correct list of each Benefit Plan sponsoredof the Company (each, maintained a “Company Benefit Plan”). With respect to each Company Benefit Plan, there are no funded benefit obligations for which contributions have not been made or contributed properly accrued and there are no unfunded benefit obligations that have not been accounted for by Parent or any of its Subsidiariesreserves, or which Parent otherwise properly footnoted in accordance with GAAP on the Company Financials. The Company is not nor has in the past been a member of a “controlled group” for purposes of Section 414(b), (c), (m) or (o) of the Code, nor does the Company have any of its Subsidiaries is obligated to sponsor, maintain or contribute to, or Liability with respect to which Parent any collectively-bargained for plans, whether or its Subsidiaries otherwise has any liability (not subject to the “Parent Benefit Plans”)provisions of ERISA. No Parent statement, either written or oral, has been made by the Company to any Person with regard to any Company Benefit Plan is established or maintained outside of that was not in accordance with the United States or for the benefit of current or former employees of Parent or Company Benefit Plan in any of its Subsidiaries residing outside of the United Statesmaterial respect.
(iib) Parent has delivered There is no claim filed, or made available to the Knowledge of the Company prior and the Seller, threatened regarding any Company Benefit Plan or alleging that any Company Benefit Plan has not been operated in compliance with all applicable Laws in all material respects, including ERISA and the Code (but subject to Schedule 3.26(b)). Each Company Benefit Plan which is intended to be “qualified” within the meaning of Section 401(a) of the Code (i) has been determined by the IRS to be so qualified (or is based on a prototype plan which has received a favorable opinion letter) during the period from its adoption to the date of this Agreement a trueand (ii) its related trust has been determined to be exempt from taxation under Section 501(a) of the Code or the Company has requested an initial favorable IRS determination of qualification and/or exemption within the period permitted by applicable Law. To the Knowledge of the Company and the Seller, correct no fact exists which could adversely affect the qualified status of such Company Benefit Plans or the exempt status of such trusts.
(c) With respect to each Company Benefit Plan which covers any current or former officer, director, consultant or employee (or beneficiary thereof) of the Company, the Company has provided to Purchaser accurate and complete copy of each Parent Benefit Plan currently in effect and, with respect theretocopies, if applicable, of: (Ai) all Company Benefit Plan texts and agreements and related trust agreements or annuity Contracts (including any amendments, modifications or supplements thereto); (ii) all summary plan descriptions and material modifications thereto; (iii) the current trust three (or other funding vehicle3) agreementsmost recent Forms 5500, if applicable, and the most recent summary plan descriptionsannual report, including all schedules thereto; (Biv) the most recent annual report and periodic accounting of plan assets; (Form 5500 series including, where applicable, all schedules and actuarial and accountants’ reportsv) filed with the Department of Labor and the three (3) most recent actuarial report or other financial statement relating to such Parent Benefit Plan, nondiscrimination testing reports; (Cvi) the most recent determination letter received from the IRS IRS, if any; (if applicablevii) for such Parent Benefit Plan the most recent actuarial valuation; and (Dviii) all material communications with any notice to or from the IRS or any office or representative of the Department of Labor relating to any unresolved compliance issues in respect of such Parent Benefit PlanGovernmental Authority.
(iiid) Except as would not reasonably be expected With respect to haveeach Company Benefit Plan: (i) such Company Benefit Plan has been administered and enforced in all material respects in accordance with its terms, individually or in the aggregate, a Material Adverse Effect on ParentCode and ERISA; and (ii) to the Knowledge of the Company and the Seller, (A) each Parent Benefit Plan no breach of fiduciary duty 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 thereunder, occurred; (B) each Parent Benefit Plan intended to be qualified under Section 401(a) of the Code has received a favorable determination or opinion letter as to its qualifications from the IRS or no Action is entitled to rely on an advisory or opinion letter as to its qualifications 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 adversely affect the qualified status of any such plan, (C) neither Parent nor any of its Subsidiaries has engaged in a transaction that has resulted inpending, or would reasonably be expected to result in, the assessment of a civil penalty upon Parent or any of its Subsidiaries pursuant to Section 409 or 502(i) of ERISA or a tax imposed pursuant to Section 4975 or 4976 of the Code that has not been satisfied in full, (D) there does not now exist, nor, to the knowledge of Parent, do any circumstances exist that would reasonably be expected to result in, any Controlled Group Liability that would be a liability of Parent, any of its Subsidiaries or any of their respective ERISA Affiliates, (E) all payments required to be made by or with respect to each Parent Benefit Plan (including all contributions, insurance premiums or intercompany charges) with respect to all prior periods have been timely made or paid by Parent or its Subsidiaries in accordance with the provisions of each of the Parent 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 Parent in accordance with GAAP and (F) there are no pending or, to the knowledge of ParentCompany’s Knowledge, threatened claims by or on behalf of any Parent Benefit Plan, by any employee or beneficiary covered under any Parent Benefit Plan or otherwise involving any Parent Benefit Plan or any trusts related thereto (other than routine claims for benefitsbenefits arising in the ordinary course of administration).
; (ivC) None of Parentno prohibited transaction, any of its Subsidiaries or any of their respective ERISA Affiliates 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 as defined in connection with: (A) a plan subject to Title IV or Section 302 406 of ERISA or Section 412 or Section 430 4975 of the Code, has occurred, excluding transactions effected pursuant to a statutory or administration exemption; and (BD) all contributions and premiums due through the Closing Date have been made in all material respects as required under ERISA or have been fully accrued in all material respects on the Company Financials.
(e) No Company Benefit Plan is a “multiple employer welfare arrangement” (as defined in Section 3(40) of ERISA), a “multiple employer benefit plan” (as defined in Section 413(c414(j) of the Code) or ), a “multiemployer plan” (as defined in Section 3(37) of ERISA)) or a “multiple employer plan” (as described in Section 413(c) of the Code) or is otherwise subject to Title IV of ERISA or Section 412 of the Code, and the Company has not incurred any Liability under Title IV of ERISA and, to the Knowledge of the Company and the Seller, no condition presently exists that is expected to cause such Liability to be incurred. No Company Benefit Plan will become a multiple employer plan with respect to the Company immediately after the Closing Date. The Company does not currently maintain nor has ever maintained, or is required currently or has ever been required to contribute to or otherwise participate in, a multiple employer welfare arrangement or voluntary employees’ beneficiary association as defined in Section 501(c)(9) of the Code.
(Cf) There is no arrangement under any Company Benefit Plan with respect to any employee that would result in the payment of any amount that by operation of Sections 280G or 162(m) of the Code would not be deductible by the Company and no arrangement exists pursuant to which the Company will be required to “gross up” or otherwise compensate any person because of the imposition of any excise tax on a payment to such person.
(g) With respect to each Company Benefit Plan which is a “welfare plan” (as described in Section 3(1) of ERISA): (i) no such plan or arrangement which provides for post-employment or post-retirement medical or welfare death benefits for retired with respect to current or former employees of the Company beyond their termination of employment (other than coverage mandated by Law, which is paid solely by such employees); and (ii) there are no reserves, assets, surplus or beneficiaries prepaid premiums under any such plan. The Company has complied with the provisions of Section 601 et seq. of ERISA and Section 4980B of the Code.
(h) Except as set forth on Schedule 3.21(a), The consummation of the transactions contemplated by this Agreement and the Ancillary Documents will not, with respect to any Company employee or dependents thereofcontractor: (i) entitle any such individual to severance pay, except pursuant unemployment compensation or other benefits or compensation; (ii) accelerate the time of payment or vesting, or increase the amount of any compensation due, or in respect of, any such individual; or (iii) result in or satisfy a condition to the payment of compensation that would, in combination with any other payment, result in an “excess parachute payment” within the meaning of Section 280G of the Code. The Company has not incurred any Liability for any Tax imposed under Chapter 43 of the Code or civil liability under Section 502(i) or (l) of ERISA.
(i) Except to the extent required by Section 4980B of the Code or similar state Law, the Company does not provide health or 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 applicable Lawtermination of employment or service.
(vj) With respect All Company Benefit Plans can be terminated at any time as of or after the Closing Date without resulting in any Liability to each Parent the Purchaser or its Affiliates for any additional contributions, penalties, premiums, fees, fines, excise taxes or any other charges required by a Governmental Authority.
(k) Each Company Benefit Plan that is subject to Title IV or Section 302 of ERISA or Section 412 or 430 409A of the Code (each, a “Parent Title IV Section 409A Plan”): (A) there does not exist any failure to meet as of the “minimum funding standard” Closing Date is indicated as such on Schedule 3.21(k). No Company Convertible Securities or other equity-based awards have been issued or granted by the Company that are, or are subject to, a Section 409A Plan. Each Section 409A Plan has been administered in compliance, and is in documentary compliance, with the applicable provisions of Section 412 of the Code or 302 of ERISA (whether or not waived), (B) no such plan is in “at-risk” status for purposes of Section 430 409A of the Code, (C) the present value of accrued benefits under such Parent Title IV Plan, based upon the actuarial assumptions used for funding purposes in the most recent actuarial report prepared by such Parent Title IV Plan’s actuary regulations thereunder and other official guidance issued thereunder. The Company does not have any obligation to any employee or other service provider with respect to such Parent Title IV Plan, did not, as of its latest valuation date, exceed the then current fair market value any Section 409A Plan that may be subject to any Tax under Section 409A of the assets Code. No payment to be made under any Section 409A Plan is, or to the Knowledge of such Parent Title IV Plan allocable the Company will be, subject to such accrued benefits, (D) no reportable event within the meaning penalties of Section 4043(c) of ERISA has occurred, (E) all premiums to the PBGC have been timely paid in full, (F) no liability (other than for premiums to the PBGC) under Title IV of ERISA has been or is expected to be incurred by Parent or any of its ERISA Affiliates, and (G) the PBGC has not instituted proceedings to terminate any such Parent Title IV Plan and, to the knowledge of Parent, no circumstances exist which could serve as a basis for the institution of such proceedings.
(vi) Except as set forth on Section 3.2(j)(vi409A(a)(1) of the Parent Disclosure LetterCode. There is no Contract or plan to which the Company is a party or by which it is bound to compensate any employee, neither the execution and delivery of this Agreement nor the consummation consultant or director for penalty taxes paid pursuant to Section 409A of the transactions contemplated hereby (either alone or in conjunction with any other event) will (A) increase any benefits otherwise payable or trigger any other obligation under any Parent Benefit Plan, (B) result in any acceleration of the time of payment, funding or vesting of any such benefits or (C) result in any limitation on the right of Parent or any of its Subsidiaries to amend, merge, terminate or receive a reversion of assets from any Parent Benefit Plan or related trustCode.
(vii) No Parent Benefit Plan provides for the gross-up or reimbursement of Taxes under Section 409A or 4999 of the Code or otherwise.
Appears in 1 contract
Samples: Unit Purchase Agreement (Northern Lights Acquisition Corp.)
Benefit Plans. (ia) Section 3.2(j)(iSet forth on Schedule 4.19(a) of the Parent Disclosure Letter contains is a true, true and complete and correct list of each Benefit Plan which is sponsored, maintained or maintained, contributed by Parent or any of its Subsidiaries, or which Parent or any of its Subsidiaries is obligated to sponsor, maintain or contribute to, or required to be contributed to by the Company and, with respect to any such Benefit Plans which are subject to Section 401(a) of the Code, any trade or business (whether or not incorporated) which is or at any relevant time was treated as a single employer with the Company within the meaning of Section 414 of the Code (an “ERISA Affiliate”), for the benefit of any Person who performs or who has performed services for the Company and with respect to which Parent the Company or its Subsidiaries otherwise any ERISA Affiliate has any material liability or obligation (the each, a “Parent Company Benefit PlansPlan”). With respect to each Company Benefit Plan, there are no funded benefit obligations for which contributions have not been made or properly accrued and there are no unfunded benefit obligations that have not been accounted for by reserves, or otherwise properly footnoted in accordance with GAAP on the Company Financials. The Company is not and has not in the past been a member of a “controlled group” for purposes of Section 414(b), (c), (m) or (o) of the Code, nor does the Company have any Liability with respect to any collectively-bargained for Benefit Plans, whether or not subject to the provisions of ERISA. No Parent statement, either written or oral, has been made by the Company to any Person with regard to any Company Benefit Plan that was not in accordance with the terms of the Company Benefit Plan in any material respect.
(b) Each Company Benefit Plan is established or maintained outside and has been operated at all times in compliance with all applicable Laws in all material respects, including ERISA and the Code. Each Company Benefit Plan which is intended to be “qualified” within the meaning of Section 401(a) of the United States Code (i) has been determined by the IRS to be so qualified (or for is based on a prototype plan which has received a favorable IRS opinion letter) during the benefit of current or former employees of Parent or any of period from its Subsidiaries residing outside of the United States.
(ii) Parent has delivered or made available to the Company prior adoption to the date of this Agreement a true, correct and complete copy of each Parent Benefit Plan currently in effect and, with respect thereto, if applicable, (A) all amendments, the current trust (or other funding vehicle) agreements, and the most recent summary plan descriptions, (B) 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 Parent Benefit Plan, (C) the most recent determination letter from the IRS (if applicable) for such Parent Benefit Plan and (Dii) any notice to or from the IRS or any office or representative of the Department of Labor relating to any unresolved compliance issues in respect of such Parent Benefit Plan.
(iii) Except as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on Parent, (A) each Parent Benefit Plan its related trust 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 thereunder, (B) each Parent Benefit Plan intended determined to be qualified exempt from taxation under Section 401(a501(a) of the Code or the Company has received a requested an initial favorable IRS determination or opinion letter as to its qualifications from of qualification and/or exemption within the IRS or is entitled to rely on an advisory or opinion letter as to its qualifications 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 period permitted by applicable Law. No fact exists which could adversely affect the qualified status of any such plan, Company Benefit Plans or the exempt status of such trusts.
(Cc) neither Parent nor any of its Subsidiaries has engaged in a transaction that has resulted in, or would reasonably be expected to result in, the assessment of a civil penalty upon Parent or any of its Subsidiaries pursuant to Section 409 or 502(i) of ERISA or a tax imposed pursuant to Section 4975 or 4976 of the Code that has not been satisfied in full, (D) there does not now exist, nor, to the knowledge of Parent, do any circumstances exist that would reasonably be expected to result in, any Controlled Group Liability that would be a liability of Parent, any of its Subsidiaries or any of their respective ERISA Affiliates, (E) all payments required to be made by or with With respect to each Parent Company Benefit Plan, the Company has provided to Purchaser accurate and complete copies, if applicable, of: (i) all Company Benefit Plan texts and agreements and related trust agreements or annuity Contracts (including any amendments, modifications or supplements thereto); (ii) all contributionssummary plan descriptions and summaries of material modifications thereto; (iii) the three (3) most recent annual reports (Form 5500), insurance premiums if applicable, and annual report, including all schedules thereto; (iv) the most recent annual and periodic accounting of plan assets; (v) the three (3) most recent nondiscrimination testing reports; (vi) the most recent determination or intercompany chargesopinion letter received from the IRS, if any; (vii) the most recent actuarial valuation; and (viii) all material communications with any Governmental Authority.
(d) With respect to each Company Benefit Plan: (i) such Company Benefit Plan has been administered in all prior periods have been timely made or paid by Parent or its Subsidiaries material respects in accordance with its terms, the provisions Code and ERISA; (ii) no breach of each of the Parent Benefit Plans and applicable Law orfiduciary duty has occurred; (iii) no Action is pending, 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 Parent in accordance with GAAP and (F) there are no pending or, to the knowledge of ParentCompany’s Knowledge, threatened claims by or on behalf of any Parent Benefit Plan, by any employee or beneficiary covered under any Parent Benefit Plan or otherwise involving any Parent Benefit Plan or any trusts related thereto (other than routine claims for benefitsbenefits arising in the ordinary course of administration).
; (iv) None of Parentno prohibited transaction, any of its Subsidiaries or any of their respective ERISA Affiliates 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 as defined in connection with: (A) a plan subject to Title IV or Section 302 406 of ERISA or and/or Section 412 or Section 430 4975 of the Code, has occurred; and (Bv) all contributions and premiums due through the Closing Date have been made or have been fully accrued in all material respects on the Company Financials.
(e) No Company Benefit Plan is a “multiple employer welfare arrangement” (as defined in Section 3(40) of ERISA), a “multiple employer benefit plan” (as defined in Section 413(c414(j) of the Code) or ), a “multiemployer plan” (as defined in Section 3(37) of ERISA)) or a “multiple employer plan” (as described in Section 413(c) of the Code) or is otherwise subject to Title IV of ERISA or Section 412 of the Code, and the Company has not incurred any Liability or otherwise could not have any Liability, contingent or otherwise, under Title IV of ERISA and no condition presently exists that is expected to cause such Liability to be incurred. No Company Benefit Plan will become a multiple employer plan with respect to the Company immediately after the Closing Date. The Company does not currently maintain and has never maintained, and is currently not required and has never been required to contribute to or otherwise participate in, a multiple employer welfare arrangement (Cas defined in Section 3(40) of ERISA) or voluntary employees’ beneficiary association as defined in Section 501(c)(9) of the Code.
(f) There is no arrangement under any plan Company Benefit Plan with respect to any Company employee that would result in the payment of any amount that by operation of Section 280G or arrangement which provides for post-employment or post-retirement medical or welfare benefits for retired or former employees or beneficiaries or dependents thereof, except pursuant to Section 4980B 162(m) of the Code would not be deductible by the Company, and no arrangement exists pursuant to which the Company will be required to “gross up” or other applicable Lawotherwise compensate any person because of the imposition of any excise or penalty tax on a payment to such person.
(vg) With respect to each Parent Company Benefit Plan which is a “welfare plan” (as defined in Section 3(1) of ERISA): (i) no such plan provides benefits with respect to current or former employees of the Company beyond their termination of employment (other than coverage mandated by Law, which is paid solely by such employees); and (ii) except as set forth in Schedule 4.19(g), there are no reserves, assets, surplus or prepaid premiums under any such plan. The Company has complied with the provisions of Sections 601 et seq. of ERISA and Section 4980B of the Code.
(h) The consummation of the transactions contemplated by this Agreement and the Ancillary Documents will not: (i) entitle any individual to severance pay, unemployment compensation or other benefits or compensation; (ii) accelerate the time of payment or vesting, or increase the amount of any compensation due, or in respect of, any individual; or (iii) result in or satisfy a condition to the payment of compensation that would, in combination with any other payment, result in an “excess parachute payment” within the meaning of Section 280G of the Code. The Company has not incurred any Liability for any Tax imposed under Chapter 43 of the Code or civil liability under Section 502(i) or (l) of ERISA.
(i) To the extent applicable, the present value of the accrued benefit liabilities (whether or not vested) under each Company Benefit Plan, determined as of the end of the Company’s most recently ended fiscal year on the basis of actuarial assumptions, each of which is reasonable, did not exceed the current value of the assets of such Company Benefit Plan allocable to such benefit liabilities.
(j) All Company Benefit Plans can be terminated at any time as of or after the Closing Date without resulting in any Liability to Pubco or any Surviving Subsidiary or their respective Affiliates for any additional contributions, penalties, premiums, fees, fines, excise taxes or any other charges or liabilities.
(k) Each Company Benefit Plan that is provides deferred compensation subject to Title IV or Section 302 of ERISA or Section 412 or 430 409A of the Code (each, a “Parent Title IV Section 409A Plan”): (A) there does not exist any failure to meet as of the “minimum funding standard” Closing Date is indicated as such on Schedule 4.19(k). No Company Profits Interest Units or other equity-based awards have been issued or granted by the Company that are, or are subject to, a Section 409A Plan. Each Section 409A Plan has been administered in compliance, and is in documentary compliance, with the applicable provisions of Section 412 409A of the Code and the official guidance issued thereunder. The Company has no obligations to any employee or 302 of ERISA (whether or not waived), (B) no such plan is in “at-risk” status for purposes of other service provider with respect to any Section 430 409A Plan that may be subject to any Tax under Section 409A of the Code. No payment to be made under any Section 409A Plan is, (C) or to the present value of accrued benefits under such Parent Title IV Plan, based upon the actuarial assumptions used for funding purposes in the most recent actuarial report prepared by such Parent Title IV Plan’s actuary with respect to such Parent Title IV Plan, did not, as of its latest valuation date, exceed the then current fair market value Knowledge of the assets of such Parent Title IV Plan allocable Company will be, subject to such accrued benefits, (D) no reportable event within the meaning penalties of Section 4043(c) of ERISA has occurred, (E) all premiums to the PBGC have been timely paid in full, (F) no liability (other than for premiums to the PBGC) under Title IV of ERISA has been or is expected to be incurred by Parent or any of its ERISA Affiliates, and (G) the PBGC has not instituted proceedings to terminate any such Parent Title IV Plan and, to the knowledge of Parent, no circumstances exist which could serve as a basis for the institution of such proceedings.
(vi) Except as set forth on Section 3.2(j)(vi409A(a)(1) of the Parent Disclosure Letter, neither Code. There is no Contract or plan to which the execution and delivery of this Agreement nor the consummation Company is a party or by which it is bound to compensate any service provider for penalty taxes paid pursuant to Section 409A of the transactions contemplated hereby (either alone or in conjunction with any other event) will (A) increase any benefits otherwise payable or trigger any other obligation under any Parent Benefit Plan, (B) result in any acceleration of the time of payment, funding or vesting of any such benefits or (C) result in any limitation on the right of Parent or any of its Subsidiaries to amend, merge, terminate or receive a reversion of assets from any Parent Benefit Plan or related trustCode.
(vii) No Parent Benefit Plan provides for the gross-up or reimbursement of Taxes under Section 409A or 4999 of the Code or otherwise.
Appears in 1 contract
Benefit Plans. (ia) Section 3.2(j)(iSet forth on Schedule 4.19(a) of the Parent Company Disclosure Letter contains Schedules is a true, true and complete and correct list of each Benefit Plan sponsoredof a Target Company (each, maintained a “Company Benefit Plan”). With respect to each Company Benefit Plan, there are no funded benefit obligations for which contributions have not been made or contributed properly accrued and there are no unfunded benefit obligations that have not been accounted for by Parent or any of its Subsidiariesreserves, or which Parent otherwise properly footnoted in accordance with GAAP on the Company Financials. No Target Company is or has ever been a member of a “controlled group” for purposes of Section 414(b), (c), (m) or (o) of the Code, nor does any of its Subsidiaries is obligated to sponsor, maintain or contribute to, or Target Company have any Liability with respect to which Parent any collectively-bargained for plans, whether or its Subsidiaries otherwise has any liability (not subject to the “Parent Benefit Plans”)provisions of ERISA. No Parent statement, either written or oral, has been made by any Target Company to any Person with regard to any Company Benefit Plan that was not in accordance with the terms of such Company Benefit Plan in any material respect.
(b) Each Company Benefit Plan is established or maintained outside and has been operated at all times in compliance with all applicable Laws in all material respects, including ERISA and the Code. Each Company Benefit Plan which is intended to be “qualified” within the meaning of Section 401(a) of the United States Code (i) has been determined by the IRS to be so qualified (or for the benefit of current or former employees of Parent or any of is based on a prototype plan which has received a favorable opinion letter) since its Subsidiaries residing outside adoption and (ii) its related trust has been determined to be exempt from taxation under Section 501(a) of the United StatesCode or the Target Companies have requested an initial favorable IRS determination of qualification and/or exemption within the period permitted by applicable Law. No fact exists which could adversely affect the qualified status of such Company Benefit Plans or the exempt status of such trusts.
(iic) Parent has delivered or made available With respect to each Company Benefit Plan, the Company prior has provided to the date of this Agreement a true, correct Purchaser accurate and complete copy of each Parent Benefit Plan currently in effect and, with respect theretocopies, if applicable, of: (Ai) all Company Benefit Plan texts and agreements and related trust agreements or annuity Contracts (including any amendments, modifications or supplements thereto); (ii) all summary plan descriptions and material modifications thereto; (iii) the current trust three (or other funding vehicle3) agreementsmost recent Forms 5500, if applicable, and the most recent summary plan descriptionsannual report, including all schedules thereto; (Biv) the most recent annual report and periodic accounting of plan assets; (Form 5500 series including, where applicable, all schedules and actuarial and accountants’ reportsv) filed with the Department of Labor and the three (3) most recent actuarial report or other financial statement relating to such Parent Benefit Plan, nondiscrimination testing reports; (Cvi) the most recent determination letter received from the IRS IRS, if any; (if applicablevii) for such Parent Benefit Plan the most recent actuarial valuation; and (Dviii) all non-routine correspondence or other material communications with any notice to or from the IRS or any office or representative of the Department of Labor relating to any unresolved compliance issues in respect of such Parent Benefit PlanGovernmental Authority.
(iiid) Except as would not reasonably be expected With respect to have, individually or in the aggregate, a Material Adverse Effect on Parent, each Company Benefit Plan: (Ai) each Parent such Company Benefit Plan has been maintained administered and administered enforced in compliance all material respects in accordance with its terms and with applicable Lawterms, including, but not limited to, ERISA and the Code and in each case the regulations thereunder, ERISA; (Bii) each Parent Benefit Plan intended to be qualified under Section 401(ano breach of fiduciary duty has occurred; (iii) of the Code has received a favorable determination or opinion letter as to its qualifications from the IRS or no Action is entitled to rely on an advisory or opinion letter as to its qualifications 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 adversely affect the qualified status of any such plan, (C) neither Parent nor any of its Subsidiaries has engaged in a transaction that has resulted inpending, or would reasonably be expected to result in, the assessment of a civil penalty upon Parent or any of its Subsidiaries pursuant to Section 409 or 502(i) of ERISA or a tax imposed pursuant to Section 4975 or 4976 of the Code that has not been satisfied in full, (D) there does not now exist, nor, to the knowledge of Parent, do any circumstances exist that would reasonably be expected to result in, any Controlled Group Liability that would be a liability of Parent, any of its Subsidiaries or any of their respective ERISA Affiliates, (E) all payments required to be made by or with respect to each Parent Benefit Plan (including all contributions, insurance premiums or intercompany charges) with respect to all prior periods have been timely made or paid by Parent or its Subsidiaries in accordance with the provisions of each of the Parent 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 Parent in accordance with GAAP and (F) there are no pending or, to the knowledge of ParentCompany’s Knowledge, threatened claims by or on behalf of any Parent Benefit Plan, by any employee or beneficiary covered under any Parent Benefit Plan or otherwise involving any Parent Benefit Plan or any trusts related thereto (other than routine claims for benefitsbenefits arising in the ordinary course of administration).
; (iv) None of Parentno prohibited transaction, any of its Subsidiaries or any of their respective ERISA Affiliates 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 as defined in connection with: (A) a plan subject to Title IV or Section 302 406 of ERISA or Section 412 or Section 430 4975 of the Code, has occurred, excluding transactions effected pursuant to a statutory or administration exemption; and (Bv) all contributions and premiums due through the Closing Date have been made in all material respects as required under ERISA or have been fully accrued in all material respects on the Company Financials.
(e) No Company Benefit Plan is a “multiple employer welfare arrangement” (as defined in Section 3(40) of ERISA), a “multiple employer benefit plan” (as defined in Section 413(c414(j) of the Code) or ), a “multiemployer plan” (as defined in Section 3(37) of ERISA), ) or a “multiple employer plan” (Cas described in Section 413(c) any plan or arrangement which provides for post-employment or post-retirement medical or welfare benefits for retired or former employees or beneficiaries or dependents thereof, except pursuant to Section 4980B of the Code Code) or other applicable Law.
(v) With respect to each Parent Benefit Plan that is otherwise subject to Title IV or of ERISA, Section 302 of ERISA or Section 412 or 430 of the Code (each, a “Parent Title IV Plan”): (A) there does not exist any failure to meet the “minimum funding standard” of Section 412 of the Code or 302 of ERISA (whether or not waived), (B) no such plan is in “at-risk” status for purposes of Section 430 of the Code, (C) the present value of accrued benefits under such Parent Title IV Planand no Target Company has ever incurred any Liability or otherwise could have any Liability, based upon the actuarial assumptions used for funding purposes in the most recent actuarial report prepared by such Parent Title IV Plan’s actuary with respect to such Parent Title IV Plancontingent or otherwise, did not, as of its latest valuation date, exceed the then current fair market value of the assets of such Parent Title IV Plan allocable to such accrued benefits, (D) no reportable event within the meaning of Section 4043(c) of ERISA has occurred, (E) all premiums to the PBGC have been timely paid in full, (F) no liability (other than for premiums to the PBGC) under Title IV of ERISA and no condition exists that could be expected to cause such Liability to be incurred. No Company Benefit Plan will become a multiple employer plan with respect to any Target Company immediately after the Closing Date. No Target Company currently maintains or has been ever maintained, or is expected required currently or has ever been required to be incurred by Parent contribute to or any otherwise participate in, a multiple employer welfare arrangement or voluntary employees’ beneficiary association as defined in Section 501(c)(9) of its ERISA Affiliates, and (G) the PBGC has not instituted proceedings to terminate any such Parent Title IV Plan and, to the knowledge of Parent, no circumstances exist which could serve as a basis for the institution of such proceedingsCode.
(vif) Except as set forth on Section 3.2(j)(viThere is no arrangement under any Company Benefit Plan with respect to any employee or service provider that would result in the payment of any amount that by operation of Sections 280G or 162(m) of the Parent Disclosure LetterCode would not be deductible by the Target Companies and no arrangement exists pursuant to which a Target Company will be required to “gross up” or otherwise compensate any person because of the imposition of any tax or related interest or penalties incurred by such person, neither including under Section 409A and 4999 of the execution Code.
(g) With respect to each Company Benefit Plan which is a “welfare plan” (as described in Section 3(1) of ERISA): (i) no such plan provides medical or death benefits with respect to current or former employees or service provider of a Target Company beyond their termination of employment (other than coverage mandated by Law, which is paid solely by such employees); and delivery (ii) there are no reserves, assets, surplus or prepaid premiums under any such plan. Each Target Company has complied with the provisions of this Agreement nor Section 601 et seq. of ERISA and Section 4980B of the Code.
(h) The consummation of the transactions contemplated hereby by this Agreement and the Ancillary Documents (either alone or in conjunction combination with any other another event) will not: (Ai) increase entitle any individual to severance pay, unemployment compensation or other benefits otherwise payable or trigger any other obligation under any Parent Benefit Plan, compensation; (Bii) result in any acceleration of accelerate the time of payment, funding or vesting of any such benefits or (C) result in any limitation on the right of Parent or any of its Subsidiaries to amend, merge, terminate or receive a reversion of assets from any Parent Benefit Plan or related trust.
(vii) No Parent Benefit Plan provides for the gross-up or reimbursement of Taxes under Section 409A or 4999 of the Code or otherwise.or
Appears in 1 contract
Samples: Merger Agreement (First Light Acquisition Group, Inc.)
Benefit Plans. (i) Section 3.2(j)(iExcept as disclosed in Schedule 4.1(q)(i) of the Parent Xxxxxx Disclosure Letter contains Letter, no Xxxxxx Benefit Plan is:
(A) a true“registered pension plan” as such term is defined in the Tax Act; or
(B) an “employee pension benefit plan” as defined under Section 3(2) of ERISA that is subject to the provisions of Title IV of ERISA, complete Section 412 of the Code or Section 302 of ERISA.
(ii) Except as set out in Schedule 4.1(q)(ii) of the Xxxxxx Disclosure Letter, no Union Plan is a “multi employer pension plan,” as defined under Section 4001(a)(3) of ERISA or any other applicable Law and correct list neither Xxxxxx nor any members of its Controlled Group has at any time sponsored or contributed to or has had any liability or obligation in respect of any such plan which remains unsatisfied.
(iii) Except where the failure to comply would be reasonably be expected to result in a Xxxxxx Material Adverse Effect, each Xxxxxx Benefit Plan is, and has been, established, funded, and administered, in all material respects, in accordance with its terms, all Laws and all relevant collective bargaining agreements; all employer and employee contributions and premiums required to be remitted, paid to or in respect of each Xxxxxx Benefit Plan, as of the date hereof, have been paid or remitted in a timely fashion in accordance with its terms and all Laws; and all obligations in respect of each Xxxxxx Benefit Plan sponsoredhave been properly accrued and reflected in the audited consolidated financial statements for Xxxxxx as at and for the fiscal year ended December 31, maintained or contributed by Parent 2009.
(iv) To the knowledge of Xxxxxx, no event has occurred and no condition exists that would be reasonably likely to subject Xxxxxx or any of its Subsidiaries, to any Tax, fine, lien, penalty or other liability imposed by ERISA, the Code or other applicable Law in relation to a Xxxxxx Benefit Plan which Parent individually or any in the aggregate would have a Xxxxxx Material Adverse Effect.
(v) Except as disclosed in Schedule 4.1(q)(v) of its Subsidiaries the Xxxxxx Disclosure letter, there is obligated to sponsor, maintain or contribute to, or with respect to which Parent no entity other than Xxxxxx or its Subsidiaries otherwise has participating in any liability (the “Parent Benefit Plans”). No Parent Benefit Plan is established or maintained outside of the United States or for the benefit of current or former employees of Parent or any of its Subsidiaries residing outside of the United States.
(ii) Parent has delivered or made available to the Company prior to the date of this Agreement a true, correct and complete copy of each Parent Benefit Plan currently in effect and, with respect thereto, if applicable, (A) all amendments, the current trust (or other funding vehicle) agreements, and the most recent summary plan descriptions, (B) 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 Parent Benefit Plan, (C) the most recent determination letter from the IRS (if applicable) for such Parent Benefit Plan and (D) any notice to or from the IRS or any office or representative of the Department of Labor relating to any unresolved compliance issues in respect of such Parent Xxxxxx Benefit Plan.
(iiivi) Except as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on Parent, (A) each Parent 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 thereunder, (B) each Parent Benefit Plan intended to be qualified under Section 401(a) of the Code has received a favorable determination or opinion letter as to its qualifications from the IRS or is entitled to rely on an advisory or opinion letter as to its qualifications 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 adversely affect the qualified status of any such plan, (C) neither Parent nor any of its Subsidiaries has engaged in a transaction that has resulted in, or would reasonably be expected to result in, the assessment of a civil penalty upon Parent or any of its Subsidiaries pursuant to Section 409 or 502(i) of ERISA or a tax imposed pursuant to Section 4975 or 4976 of the Code that has not been satisfied in full, (D) there does not now exist, nor, to To the knowledge of ParentXxxxxx, do any circumstances exist that would reasonably be expected to result inno event has occurred, any Controlled Group Liability or condition currently exists, that would be a liability of Parent, any of its Subsidiaries or any of their respective ERISA Affiliates, (E) all payments required reasonably likely to be made by or with respect to each Parent Benefit Plan (including all contributions, insurance premiums or intercompany charges) with respect to all prior periods have been timely made or paid by Parent or its Subsidiaries result in accordance with the provisions of each of the Parent 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 Parent in accordance with GAAP and (F) there are no pending or, to the knowledge of Parent, threatened claims by or on behalf occurrence of any Parent Benefit Planwithdrawal (complete, by any employee partial or beneficiary covered under any Parent Benefit Plan or otherwise involving any Parent Benefit Plan or any trusts related thereto (other than routine claims for benefits).
(ivmass) None of Parent, any of its Subsidiaries or any of their respective ERISA Affiliates 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 plan subject to Title IV or Section 302 of ERISA or Section 412 or Section 430 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 plan” (as defined in Section 3(37) of ERISA), or (C) any plan or arrangement which provides for post-employment or post-retirement medical or welfare benefits for retired or former employees or beneficiaries or dependents thereof, except pursuant to Section 4980B of the Code or other applicable Law.
(v) With respect to each Parent Benefit Plan that is subject to Title IV or Section 302 of ERISA or Section 412 or 430 of the Code (each, a “Parent Title IV Plan”): (A) there does not exist any failure to meet the “minimum funding standard” of Section 412 of the Code or 302 of ERISA (whether or not waived), (B) no such plan is in “at-risk” status for purposes of Section 430 of the Code, (C) the present value of accrued benefits under such Parent Title IV Plan, based upon the actuarial assumptions used for funding purposes in the most recent actuarial report prepared by such Parent Title IV Plan’s actuary with respect to such Parent Title IV Plan, did not, as of its latest valuation date, exceed the then current fair market value of the assets of such Parent Title IV Plan allocable to such accrued benefits, (D) no reportable event within the meaning of Section 4043(c) of ERISA has occurred, (E) all premiums to the PBGC have been timely paid in full, (F) no liability (other than for premiums to the PBGC) under Title IV of ERISA has been or is expected to be incurred by Parent or any of its ERISA Affiliates, and (G) the PBGC has not instituted proceedings to terminate any such Parent Title IV Plan and, to the knowledge of Parent, no circumstances exist which could serve as a basis for the institution of such proceedings.
(vi) Except as set forth on Section 3.2(j)(vi) of the Parent Disclosure Letter, 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) increase any benefits otherwise payable or trigger any other obligation under any Parent Benefit Plan, (B) result in any acceleration of the time of payment, funding or vesting of any such benefits or (C) result in any limitation on the right of Parent or any of its Subsidiaries to amend, merge, terminate or receive a reversion of assets from any Parent Benefit Plan or related trustUnion Plan.
(vii) To the knowledge of Xxxxxx, it has not received any written notice indicating that a Union Plan has experienced or could be expected to experience a mass withdrawal.
(viii) To the knowledge of Xxxxxx, Xxxxxx has not received any written notice indicating that a Union Plan is or could be expected to become insolvent, within the meaning of ERISA section 4245, or is or could be expected to be placed in reorganization, within the meaning of ERISA section 4241.
(ix) No Parent Benefit assets of Xxxxxx are subject to any liens under ERISA or the Code with respect to any Union Plan provides for the gross-up and, to Walter’s knowledge, no event has occurred, or reimbursement of Taxes under Section 409A or 4999 condition currently exists, which is reasonably likely to be subject any of the Code assets of Xxxxxx or otherwiseany members of its Controlled Group to any future obligation or lien with respect to any Union Plan.
(x) Xxxxxx has complied, in all material respects, with the terms of all applicable collective bargaining agreements, participation agreements or other contracts or agreements relating to the participation of Xxxxxx in each Union Plan.
Appears in 1 contract
Benefit Plans. (ia) Section 3.2(j)(i) of the Parent Disclosure Letter contains OCBB has provided to HomeStreet a true, true and complete and correct list of each Benefit Plan sponsoredmaterial “employee benefit plan” (within the meaning of Section 3(3) of ERISA, maintained “multiemployer plans” (within the meaning of ERISA Section 3(37)), and all stock purchase, stock option, severance, employment, change-in-control, fringe benefit, bonus, incentive, deferred compensation and all other employee benefit plans, agreements, programs, policies or contributed by Parent other arrangements, whether or not subject to ERISA (including any funding mechanism therefor now in effect or required in the future as a result of its Subsidiariesthe Transactions or otherwise), whether formal or informal, written, legally binding or not, under which Parent any employee or former employee of OCBB or any of its Subsidiaries is obligated to sponsor, maintain or contribute to, or with respect to which Parent or its Subsidiaries otherwise has any liability (the “Parent Benefit Plans”). No Parent Benefit Plan is established present or maintained outside of the United States future right to benefits or for the benefit of current or former employees of Parent OCBB or any of its Subsidiaries residing outside has had or has any present or future liability. All such plans, agreements, programs, policies and arrangements shall be collectively referred to as the “Benefit Plans.” Each Benefit Plan of OCBB or any of its Subsidiaries existing prior to or as of the United States.
(ii) Parent has delivered date of this Agreement, and each such plan entered into or made available to the Company prior to established by OCBB or any of its Subsidiaries between the date of this Agreement and the Effective Time, shall be collectively referred to as the “OCBB Plans.” With respect to each OCBB Plan, OCBB has furnished to HomeStreet a truecurrent, correct accurate and complete copy of each Parent Benefit Plan currently in effect such plan and, with respect thereto, if to the extent applicable, : (Ai) all amendments, the current any related trust (agreement or other funding vehicle) agreements, and the most recent summary plan descriptions, instrument; (B) 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 Parent Benefit Plan, (Cii) the most recent determination letter from of the IRS Internal Revenue Service (the “IRS”), if applicable; (iii) for such Parent Benefit any summary plan description and other written communications (or a description of any oral communications) by OCBB or any of its Subsidiaries to its employees concerning the extent of the benefits provided under a OCBB Plan and (Div) any notice to for the two most recent fiscal or from calendar years the IRS or any office or representative of the Department of Labor relating to any unresolved compliance issues in respect of such Parent Benefit PlanForm 5500 and attached schedules.
(iiib) Except With respect to the OCBB Plans:
(i) except as would not reasonably be expected to havenot, individually or in the aggregate, result in a Material Adverse Effect on Parent, (A) material liability to OCBB each Parent Benefit OCBB Plan has been maintained established and administered in compliance accordance with its terms and in compliance with the applicable Law, including, but not limited to, provisions of ERISA and the Code Code, and no reportable event, as defined in each case Section 4043 of ERISA, no prohibited transaction, as described in Section 406 of ERISA or Section 4975 of the regulations thereunderCode, or accumulated funding deficiency, as defined in Section 304 of ERISA and 431 of the Code, has occurred with respect to any OCBB Plan, and all contributions required to be made under the terms of any OCBB Plan have been timely made;
(Bii) each Parent Benefit OCBB Plan intended to be qualified under Section 401(a) of the Code has received a favorable determination or determination, advisory and/or opinion letter letter, as to its qualifications applicable, from the IRS or that it is entitled to rely on an advisory or opinion so qualified and nothing has occurred since the date of such letter as to its qualifications 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 adversely affect cause the loss of such qualified status of such OCBB Plan;
(iii) there is no Action (including any such planinvestigation, (Caudit or other administrative proceeding) neither Parent nor by the Department of Labor, the Pension Benefit Guaranty Corporation, the IRS or any other Governmental Entity or by any plan participant or beneficiary pending, or to the Knowledge of OCBB, threatened, relating to OCBB Plans, any fiduciaries thereof with respect to their duties to OCBB Plans or the assets of any of its Subsidiaries has engaged in a transaction that has resulted in, or would reasonably be expected to result in, the assessment of a civil penalty upon Parent or trusts under any of its Subsidiaries pursuant to Section 409 the OCBB Plans (other than routine claims for benefits) nor are there facts or 502(i) of ERISA or a tax imposed pursuant to Section 4975 or 4976 of the Code circumstances that has not been satisfied in full, (D) there does not now exist, nor, to the knowledge of Parent, do any circumstances exist that would reasonably be expected to result in, give rise to any Controlled Group Liability that would be a liability of Parent, any of its Subsidiaries or any of their respective ERISA Affiliates, (E) all payments required to be made by or with respect to each Parent Benefit Plan (including all contributions, insurance premiums or intercompany charges) with respect to all prior periods have been timely made or paid by Parent or its Subsidiaries in accordance with the provisions of each of the Parent 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 Parent in accordance with GAAP and (F) there are no pending or, to the knowledge of Parent, threatened claims by or on behalf of any Parent Benefit Plan, by any employee or beneficiary covered under any Parent Benefit Plan or otherwise involving any Parent Benefit Plan or any trusts related thereto (other than routine claims for benefits).such Actions;
(iv) None of Parent, any of its Subsidiaries or any of their respective ERISA Affiliates 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 plan no OCBB Plan is subject to Title IV or Section 302 of ERISA or to Section 412 or Section 430 4.2 of the Code, ;
(Bv) 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 no OCBB Plan is a “multiemployer plan” (within the meaning of ERISA Section 3(37));
(vi) Neither OCBB nor any of its Subsidiaries maintains any “group health plan” (as such term is defined in Section 3(375000(b)(1) of ERISA), or (Cthe Code) any plan or arrangement which provides for post-employment or post-retirement medical or welfare benefits for retired or former employees or beneficiaries or dependents thereof, except pursuant to that has not been administered and operated in all material respects in compliance with the applicable requirements of Section 4980B of the Code or other applicable Law.
(v) With respect to each Parent Benefit Plan that is subject to Title IV or Section 302 601 of ERISA or and Section 412 or 430 of the Code (each, a “Parent Title IV Plan”): (A4980B(b) there does not exist any failure to meet the “minimum funding standard” of Section 412 of the Code or 302 of ERISA (whether or not waived), (B) no such plan is in “at-risk” status for purposes of Section 430 of the Code, and OCBB is not subject to any material liability, including additional contributions, fines, penalties or loss of Tax deduction as a result of such administration and operation; and
(Cvii) the present value of accrued benefits under such Parent Title IV Plan, based upon the actuarial assumptions used for funding purposes in the most recent actuarial report prepared by such Parent Title IV Plan’s actuary with respect to such Parent Title IV Plan, did not, as of its latest valuation date, exceed the then current fair market value none of the assets OCBB Plans provides for payment of such Parent Title IV a benefit, the increase of a benefit amount, the payment of a contingent benefit or the acceleration of the payment or vesting of a benefit determined or occasioned, in whole or in part, by reason of the execution of this Agreement or the consummation of the Transactions.
(c) Each OCBB Plan allocable to such accrued benefits, (D) no reportable event that is a “nonqualified deferred compensation plan” within the meaning of Section 4043(c409A(d)(1) of ERISA has occurred, (E) all premiums the Code subject to Section 409A of the PBGC have been timely paid in full, (F) no liability (other than for premiums to the PBGC) under Title IV of ERISA Code has been or is expected to be incurred by Parent operated in compliance with Section 409A of the Code since January 1, 2005, based upon a good faith, reasonable interpretation of (i) Section 409A of the Code; and (ii) IRS Notice 2005 1 or any other applicable IRS guidance. No OCBB Plan that would be a nonqualified deferred compensation plan subject to Section 409A of its ERISA Affiliates, and (G) the PBGC has not instituted proceedings to terminate any such Parent Title IV Plan and, to the knowledge of Parent, no circumstances exist which could serve as a basis Code but for the institution effective date provisions that are applicable to Section 409A of such proceedings.
(vi) Except the Code, as set forth on in Section 3.2(j)(vi885(d) of the Parent Disclosure LetterAmerican Jobs Creation Act of 2004, neither as amended (the execution and delivery “AJCA”), has been “materially modified” within the meaning of this Agreement nor the consummation Section 885(d)(2)(B) of the transactions contemplated hereby (either alone or in conjunction with any other event) will (A) increase any benefits otherwise payable or trigger any other obligation under any Parent Benefit PlanAJCA after October 3, (B) result in any acceleration 2004, based upon a good faith reasonable interpretation of the time of payment, funding or vesting of any such benefits or (C) result in any limitation on the right of Parent or any of its Subsidiaries to amend, merge, terminate or receive a reversion of assets from any Parent Benefit Plan or related trustAJCA.
(vii) No Parent Benefit Plan provides for the gross-up or reimbursement of Taxes under Section 409A or 4999 of the Code or otherwise.
Appears in 1 contract
Samples: Merger Agreement (HomeStreet, Inc.)
Benefit Plans. (ia) Section 3.2(j)(i3.11(a) of the Parent Company Disclosure Letter contains sets forth a true, true and complete and correct list of each material Company Benefit Plan sponsored, maintained or contributed by Parent or (including each material Foreign Plan applicable to any of its Subsidiaries, or which Parent or any of its Subsidiaries is obligated to sponsor, maintain or contribute to, or with respect to which Parent or its Subsidiaries otherwise has any liability (the “Parent Benefit Plans”). No Parent Benefit Plan is established or maintained outside of the United States or for the benefit of current or former employees of Parent or any of its Subsidiaries residing outside employee of the United States.
(iiCompany or its Subsidiaries) Parent as of the date of this Agreement; provided, that to the extent that there exist certain forms of agreement that would each individually constitute a Company Benefit Plan, such list includes only the forms of such agreement in lieu of all individual agreements that follow such forms in all material respects. With respect to each material Company Benefit Plan, the Company has delivered furnished or made available to the Company prior to the date of this Agreement Parent a truecurrent, correct accurate, and complete copy thereof (or if unwritten, a written summary of each Parent Benefit Plan currently in effect the material terms thereof) and, with respect thereto, if to the extent applicable, : (Ai) all amendments, the current any related trust (agreement or other funding vehicleinstrument; (ii) agreements, and the most recent determination or opinion letter from the Internal Revenue Service (the “IRS”); (iii) the most recent summary plan descriptionsdescription and summary of material modifications and other equivalent written communications by the Company or its Subsidiaries to their employees concerning the extent of the benefits provided thereunder; (iv) a summary of any proposed amendments or changes anticipated to be made to the Company Benefit Plans; and (v) for the three most recent years, (A) Form 5500 and attached schedules, (B) the most recent annual report (Form 5500 series including, where applicable, all schedules audited financial statements and actuarial and accountants’ reports) filed with the Department of Labor and the most recent actuarial report or other financial statement relating to such Parent Benefit Plan, (C) the most recent determination letter from the IRS (if applicable) for such Parent Benefit Plan and (D) any notice to or from the IRS or any office or representative of the Department of Labor relating to any unresolved compliance issues in respect of such Parent Benefit Planactuarial valuation reports.
(iiib) Except as to the extent that the inaccuracy of any of the representations set forth in this Section 3.11(b) would not reasonably be expected to havenot, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect on Parent, Effect:
(Ai) each Parent Company Benefit Plan has been maintained established, funded, operated and administered in compliance all respects in accordance with its terms and in compliance with applicable LawLaw and any applicable collective bargaining agreement;
(ii) all employer and employee contributions to each Foreign Plan required by its terms or by applicable Law have been made or, includingif applicable, but not limited to, ERISA accrued in accordance with generally accepted accounting practices in the applicable jurisdiction and the Code and any other payments (including insurance premiums) otherwise due in each case the regulations thereunder, respect of a Foreign Plan have been paid in full;
(Biii) each Parent Company Benefit Plan intended to be qualified under Section 401(a) of the Code has received a favorable determination determination, advisory or opinion letter letter, as to its qualifications applicable, from the IRS that it is so qualified (or is entitled to rely on an advisory or opinion the deadline for obtaining such a letter has not expired as to its qualifications issued with respect to an IRS approved master of the date of this Agreement) and prototype or volume submitter plan, and there are no existing circumstances or any events that have nothing has occurred since the date of such letter that would reasonably be expected to adversely affect cause the loss of such qualified status of such Company Benefit Plan, and each Foreign Plan that is intended to qualify for special Tax treatment (or permitted to have been approved to obtain any beneficial Tax or other status) meets all requirements for such plantreatment, (C) neither Parent nor any of its Subsidiaries has engaged in a transaction that has resulted inand if intended to be filed, registered, or would reasonably be expected to result inapproved by a competent Governmental Entity, has been duly and timely filed, registered, or approved, as applicable, and has been maintained in good standing with applicable regulatory authorities; and
(iv) there is no, and since January 1, 2022, there has been no Action by the Department of Labor, the assessment of a civil penalty upon Parent Pension Benefit Guaranty Corporation, the IRS or any of its Subsidiaries pursuant to Section 409 other Governmental Entity or 502(i) of ERISA by any plan participant or a tax imposed pursuant to Section 4975 or 4976 of the Code that has not been satisfied in full, (D) there does not now exist, nor, to the knowledge of Parent, do any circumstances exist that would reasonably be expected to result in, any Controlled Group Liability that would be a liability of Parent, any of its Subsidiaries or any of their respective ERISA Affiliates, (E) all payments required to be made by or with respect to each Parent Benefit Plan (including all contributions, insurance premiums or intercompany charges) with respect to all prior periods have been timely made or paid by Parent or its Subsidiaries in accordance with the provisions of each of the Parent 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 Parent in accordance with GAAP and (F) there are no beneficiary pending or, to the knowledge of Parentthe Company, threatened claims by or on behalf of threatened, relating to any Parent Company Benefit Plan, by any employee or beneficiary covered under any Parent fiduciaries thereof with respect to their duties to a Company Benefit Plan or otherwise involving the assets of any Parent of the trusts under any of the Company Benefit Plan or any trusts related thereto Plans (other than routine claims for benefits).
(ivc) None of Parent, Neither the Company nor any of its Subsidiaries or Subsidiaries, nor any of their respective ERISA Affiliates maintainsAffiliates, contributes has in the past six years been required to contribute to, or participates in, has any liability (contingent or has ever during the past six (6otherwise) years maintained, contributed with respect to, any employee benefit plan that is or participated in, or otherwise has any obligation or liability in connection with: was (Ai) a plan subject to Title IV of ERISA or Section 302 of ERISA or Section 412 or Section 430 of the Code, (Bii) a “multiemployer plan” as defined in Section 3(37) of ERISA, (iii) a “multiple employer welfare arrangement” (as defined in Section 3(40) of ERISA), ) or (iv) a “multiple employer plan” plan (as defined in Section 413(c) of the Code).
(d) With respect to any Company Benefit Plan that is a defined benefit pension plan (within the meaning of Section 3(35) of ERISA) that is subject to Title IV of ERISA, (i) all premiums due to the PBGC have been paid, all required contributions have been timely made and no other liability under Title IV of ERISA has been incurred that has not been satisfied in full, and no condition exists that is likely to cause the Company or any of its Subsidiaries to incur liability under Title IV of ERISA in respect of any plan maintained by an ERISA Affiliate other than the Company or one of its Subsidiaries, (ii) neither the Company nor any of its Subsidiaries has filed a notice of intent to terminate the plan or adopted any amendment to treat such plan as terminated, (iii) the PBGC has not instituted, or threatened to institute, proceedings to treat such plan as terminated, or issued any notice relating to the funded status of any such plan or any transfer of assets and liabilities from any such plan in connection with the transactions contemplated hereby, (iv) no event has occurred or circumstance exists that may constitute grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, such plan, (v) there has been no “reportable event” (as defined in Section 4043 of ERISA) that would require the giving of notice or any event requiring disclosure under Section 4041(c)(3)(C) or 4063(a) of ERISA, (vi) the Company and its Subsidiaries are not, and do not expect to be, subject to (A) any requirement to post security pursuant to Section 412(c)(4) of the Code or (B) any lien pursuant to Section 430(k) of the Code, and (vii) no failure to satisfy the “minimum funding standards” within the meaning of Section 302 of ERISA and Section 412 of the Code (whether or not waived) has occurred. Neither the Company nor any of its Subsidiaries has terminated any defined benefit pension plan within the last six years or incurred any outstanding liability under Section 4062 of ERISA to the PBGC or to a trustee appointed under Section 4042 of ERISA. Neither the Company, any of its Subsidiaries nor any organization to which the Company or any of its Subsidiaries is a successor or parent corporation, within the meaning of Section 4069(b) of ERISA, has engaged in any transaction described in Sections 4069 or 4212(c) of ERISA. With respect to each Foreign Plan, the fair market value of the assets of each funded Foreign Plan, the liability of each insurer for any Foreign Plan funded through insurance, or the book reserve established for any Foreign Plan, together with any accrued contributions, is sufficient, in all material respects, to procure or provide for the accrued benefit obligations, as of the Closing.
(e) Neither the Company nor any of its Subsidiaries nor any of their respective ERISA Affiliates (nor any predecessor of any such entity) has any unsatisfied obligation for “withdrawal liability” (including any Controlled Group Liability related thereto) or would be subject to withdrawal liability if, as of the Closing Date, the Company, any of its Subsidiaries or any of their respective ERISA Affiliates were to engage in a complete withdrawal (as defined in Section 4203 of ERISA) or partial withdrawal (as defined in Section 4205 of ERISA), in each case as a result of such Person’s sponsorship, maintenance, administration, participation in or contributions to any “multiemployer plan,” (as such term is defined in Section 3(37) of ERISA).
(f) No Company Benefit Plan provides benefits or coverage in the nature of health, life or disability insurance following termination of employment, other than benefits or coverage (Ci) any plan required to be provided under Part 6 of Title I of ERISA or arrangement which provides for post-employment or post-retirement medical or welfare benefits for retired or former employees or beneficiaries or dependents thereof, except pursuant to Section 4980B 4980(B)(f) of the Code or any other applicable Law.
Law or (vii) With respect to each Parent Benefit Plan that the full cost of which is subject to Title IV borne by the recipient (or any of their beneficiaries). Any plan disclosed on Section 302 of ERISA or Section 412 or 430 3.11(f) of the Code (each, a “Parent Title IV Plan”): (A) there does not exist Company Disclosure Letter may be amended in any failure to meet the “minimum funding standard” of Section 412 of the Code manner or 302 of ERISA (whether or not waived), (B) no such plan is in “at-risk” status for purposes of Section 430 of the Code, (C) the present value of accrued benefits under such Parent Title IV Plan, based upon the actuarial assumptions used for funding purposes in the most recent actuarial report prepared by such Parent Title IV Plan’s actuary with respect to such Parent Title IV Plan, did not, as of its latest valuation date, exceed the then current fair market value of the assets of such Parent Title IV Plan allocable to such accrued benefits, (D) no reportable event within the meaning of Section 4043(c) of ERISA has occurred, (E) all premiums terminated without material liability to the PBGC have been timely paid in full, (F) no liability (other than for premiums to the PBGC) under Title IV of ERISA has been or is expected to be incurred by Parent Company or any of its ERISA Affiliates, and (G) the PBGC has not instituted proceedings to terminate any such Parent Title IV Plan and, to the knowledge of Parent, no circumstances exist which could serve as a basis for the institution of such proceedingsSubsidiaries.
(vig) Except as set forth on Section 3.2(j)(vi) of the Parent Disclosure Letter, neither Neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby (Merger could reasonably be expected to, either alone or in conjunction combination with any other event, (i) will (A) increase entitle any benefits otherwise payable current or trigger former employee, officer, director or consultant of the Company or any of its Subsidiaries to severance pay, unemployment compensation or any other obligation under any Parent Benefit Plansimilar termination payment, (Bii) result in any acceleration of accelerate the time of payment, funding or vesting of vesting, or increase the amount of, or otherwise enhance, any compensation or benefit due any such benefits employee, officer, director or consultant, (Ciii) result in any limitation or restriction on the right of Parent the Company’s or any of its Subsidiaries Subsidiaries’ ability to amend, merge, amend or terminate any of the Company Benefit Plans or receive (iv) give rise to any payments or benefits that would be nondeductible under Section 280G of the Code or give rise to any excise tax owing under Section 4999 of the Code. The Company has made available to Parent the “base amount” for each “disqualified individual” and a reversion reasonable estimate of assets from any Parent Benefit Plan or related trustpotential “parachute payments” (each as defined in Section 280G of the Code) such person could receive.
(viih) No Parent Benefit Plan provides for Neither the Company nor any of its Subsidiaries has any obligation to compensate, gross-up or reimbursement of Taxes under indemnify any individual for any Tax incurred, including pursuant to Section 409A or 4999 of the Code or otherwiseCode.
Appears in 1 contract
Benefit Plans. (i) Section 3.2(j)(i3.1(j)(i) of the Parent Company Disclosure Letter contains a true, complete and correct list of each Benefit Plan sponsored, maintained or contributed by Parent the Company or any of its Subsidiaries, or which Parent the Company or any of its Subsidiaries is obligated to sponsor, maintain or contribute to, or with respect to which Parent the Company or its Subsidiaries otherwise has any liability (the “Parent Company Benefit Plans”). No Parent Company Benefit Plan is established or maintained outside of the United States or for the benefit of current or former employees of Parent the Company or any of its Subsidiaries residing outside of the United States.
(ii) Parent The Company has delivered or made available to the Company Parent prior to the date of this Agreement a true, correct and complete copy of each Parent Company Benefit Plan currently in effect and, with respect thereto, if applicable, (A) all amendments, the current trust (or other funding vehicle) agreements, and the most recent summary plan descriptions, (B) 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 Parent Company Benefit Plan, (C) the most recent determination letter from the IRS (if applicable) for such Parent Company Benefit Plan and (D) any notice to or from the IRS or any office or representative of the Department of Labor relating to any unresolved compliance issues in respect of such Parent Company Benefit Plan.
(iii) Except as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on Parentthe Company, (A) each Parent Company 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 thereunder, (B) each Parent Company Benefit Plan intended to be qualified under Section 401(a) of the Code has received a favorable determination or opinion letter as to its qualifications from the IRS or is entitled to rely on an advisory or opinion letter as to its qualifications 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 adversely affect the qualified status of any such plan, (C) neither Parent the Company nor any of its Subsidiaries has engaged in a transaction that has resulted in, or would reasonably be expected to result in, the assessment of a civil penalty upon Parent the Company or any of its Subsidiaries pursuant to Section 409 or 502(i) of ERISA or a tax imposed pursuant to Section 4975 or 4976 of the Code that has not been satisfied in full, (D) there does not now exist, nor, to the knowledge of Parentthe Company, do any circumstances exist that would reasonably be expected to result in, any Controlled Group Liability that would be a liability of Parentthe Company, any of its Subsidiaries or any of their respective ERISA Affiliates, (E) all payments required to be made by or with respect to each Parent Company Benefit Plan (including all contributions, insurance premiums or intercompany charges) with respect to all prior periods have been timely made or paid by Parent the Company or its Subsidiaries in accordance with the provisions of each of the Parent Company 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 Parent the Company in accordance with GAAP and (F) there are no pending or, to the knowledge of Parentthe Company, threatened claims by or on behalf of any Parent Company Benefit Plan, by any employee or beneficiary covered under any Parent Company Benefit Plan or otherwise involving any Parent Company Benefit Plan or any trusts related thereto (other than routine claims for benefits).
(iv) None Except as set forth on Section 3.1(j)(iv) of Parentthe Company Disclosure Letter, none of the Company, any of its Subsidiaries or any of their respective ERISA Affiliates 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 plan subject to Title IV or Section 302 of ERISA or Section 412 or Section 430 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 plan” (as defined in Section 3(37) of ERISA), or (C) any plan or arrangement which provides for post-employment or post-retirement medical or welfare benefits for retired or former employees or beneficiaries or dependents thereof, except pursuant to Section 4980B of the Code or other applicable Law.
(v) With respect to each Parent Company Benefit Plan that is subject to Title IV or Section 302 of ERISA or Section 412 or 430 of the Code (each, a “Parent Company Title IV Plan”): (A) there does not exist any failure to meet the “minimum funding standard” of Section 412 of the Code or 302 of ERISA (whether or not waived), (B) no such plan is in “at-risk” status for purposes of Section 430 of the Code, (C) the present value of accrued benefits under such Parent Company Title IV Plan, based upon the actuarial assumptions used for funding purposes in the most recent actuarial report prepared by such Parent Company Title IV Plan’s actuary with respect to such Parent Company Title IV Plan, did not, as of its latest valuation date, exceed the then current fair market value of the assets of such Parent Company Title IV Plan allocable to such accrued benefits, (D) no reportable event within the meaning of Section 4043(c) of ERISA has occurred, (E) all premiums to the PBGC Pension Benefit Guaranty Corporation (the “PBGC”) have been timely paid in full, (F) no liability (other than for premiums to the PBGC) under Title IV of ERISA has been or is expected to be incurred by Parent the Company or any of its ERISA Affiliates, and (G) the PBGC has not instituted proceedings to terminate any such Parent Company Title IV Plan and, to the knowledge of Parentthe Company, no circumstances exist which could serve as a basis for the institution of such proceedings.
(vi) Except as set forth on Section 3.2(j)(vi3.1(j)(vi) of the Parent Company Disclosure Letter, 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, employee or other service provider of the Company or any of its Subsidiaries under any Company Benefit Plan or otherwise, (B) increase any benefits otherwise payable or trigger any other obligation under any Parent Company Benefit Plan, (BC) result in any acceleration of the time of payment, funding or vesting of any such benefits or (CD) result in any limitation on the right of Parent the Company or any of its Subsidiaries to amend, merge, terminate or receive a reversion of assets from any Parent Company Benefit Plan or related trust.
(vii) No Parent Except as set forth on Section 3.1(j)(vii) of the Company Disclosure Letter, no Company Benefit Plan provides for the gross-up or reimbursement of Taxes under Section 409A or 4999 of the Code or otherwise. True, correct and complete copies of Section 280G calculations with respect to any disqualified individual in connection with the transactions contemplated by this Agreement are included in Section 3.1(j)(vii) of the Company Disclosure Letter.
Appears in 1 contract
Samples: Merger Agreement (Kimco Realty Corp)
Benefit Plans. Prior to the Closing Date:
(a) the Company will make all required contributions and pay all premiums required under each Benefit Plan, including any employer matching and profit-sharing contributions, which are due or accrued on or before the Closing Date;
(b) unless Parent requests otherwise in writing, the Company will take all action reasonably required to (i) Section 3.2(j)(i) of the Parent Disclosure Letter contains a true, complete and correct list of each terminate any Benefit Plan sponsored, maintained that includes a “cash or contributed by Parent or any of its Subsidiaries, or which Parent or any of its Subsidiaries deferred” feature that is obligated to sponsor, maintain or contribute to, or with respect to which Parent or its Subsidiaries otherwise has any liability (the “Parent Benefit Plans”). No Parent Benefit Plan is established or maintained outside of the United States or for the benefit of current or former employees of Parent or any of its Subsidiaries residing outside of the United States.
(ii) Parent has delivered or made available to the Company prior to the date of this Agreement a true, correct and complete copy of each Parent Benefit Plan currently in effect and, with respect thereto, if applicable, (A) all amendments, the current trust (or other funding vehicle) agreements, and the most recent summary plan descriptions, (B) 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 Parent Benefit Plan, (C) the most recent determination letter from the IRS (if applicable) for such Parent Benefit Plan and (D) any notice to or from the IRS or any office or representative of the Department of Labor relating to any unresolved compliance issues in respect of such Parent Benefit Plan.
(iii) Except as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on Parent, (A) each Parent 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 thereunder, (B) each Parent Benefit Plan intended to be qualified under meet the requirements of Section 401(a401(k) of the Code has received and that is sponsored by the Company, and, in the case of such a favorable determination or opinion letter as to its qualifications from the IRS or Benefit Plan that is entitled to rely on an advisory or opinion letter as to its qualifications issued with respect to an IRS approved master and prototype or volume submitter part of a multiple employer plan, and there are no existing circumstances or any events that have occurred that would reasonably be expected to adversely affect the qualified status of any such plan, (C) neither Parent nor any of its Subsidiaries has engaged as described in a transaction that has resulted in, or would reasonably be expected to result in, the assessment of a civil penalty upon Parent or any of its Subsidiaries pursuant to Section 409 or 502(i401(c) of ERISA or the Code, effect a tax imposed pursuant to Section 4975 or 4976 spin-off of the Code that has not been satisfied in full, (D) there does not now exist, nor, account balances attributable to participants employed or formerly employed by the knowledge of Parent, do any circumstances exist that would reasonably be expected Company from such plan into a separate Benefit Plan and to result in, any Controlled Group Liability that would be a liability of Parent, any of its Subsidiaries or any of their respective ERISA Affiliates, (E) all payments required to be made by or with respect to each Parent immediately thereafter terminate such separate Benefit Plan (including each, a “Company 401(k) Plan”) (ii) fully vest all contributionsparticipant accounts in the Company 401(k) Plan, insurance premiums or intercompany chargesand (iii) with respect to all prior periods have been timely made or paid by Parent or its Subsidiaries in accordance with amend the provisions of each of the Parent Benefit Plans and applicable Law orCompany 401(k) Plan, 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 Parent in accordance with GAAP and (F) there are no pending ornecessary, to provide for the knowledge distribution of Parentall participant accounts, threatened claims by or on behalf of any Parent Benefit including loan notes, in an eligible rollover distribution from the Company 401(k) Plan, by any employee or beneficiary covered under any in each case effective no later than the day prior to the Closing. At the Closing, the Company will provide to Parent Benefit Plan or otherwise involving any Parent Benefit Plan or any trusts related thereto (other than routine claims for benefits).
(iv) None of Parent, any of its Subsidiaries or any of their respective ERISA Affiliates 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 plan executed resolutions of the board of directors of the Company authorizing spin-off and termination, the form and substance of which shall be subject to Title IV or Section 302 prior review and approval by Parent, and (B) an executed amendment to the Company 401(k) Plan sufficient to assure compliance with all applicable requirements of ERISA or Section 412 or Section 430 the Code and regulations thereunder so that the Tax-qualified status of the Company 401(k) Plan will be maintained at the time of termination;
(c) the Company shall take all steps necessary to correct, through use of the IRS’s Employee Plans Compliance Resolution System, any failure of any Company 401(k) Plan to comply with the nondiscrimination and other tax-qualification rules of the Code, in form or in operation; all expenses of such correction, including any corrective contributions to the applicable Company 401(k) Plan and attorneys’ and accountants’ fees, shall constitute Indebtedness;
(Bd) the Company shall take all actions reasonably required to terminate, effective immediately prior to the Closing, any other Benefit Plan and related insurance policy and administrative services agreement as may be requested in writing by Parent; and
(e) the Company shall submit to a vote of the Stockholders of the Company for their approval all payments and benefits that in the absence of such a vote could reasonably be viewed as “multiple employer welfare arrangementparachute payments” (as defined in Section 3(40) of ERISA), a “multiple employer plan” (as defined in Section 413(c280G(b)(1) of the Code) or a (the “multiemployer planSection 280G Payments”), made to any individuals that are “disqualified individuals” (as such term is defined in Treasury Regulation Section 3(371.280G-1). Such Stockholders’ vote shall be made in a manner intended to meet the requirements of Section 280G(b)(5)(B) of ERISA), or (C) any plan or arrangement which provides for post-employment or post-retirement medical or welfare benefits for retired or former employees or beneficiaries or dependents thereof, except pursuant to Section 4980B of the Code and the regulations thereunder (including, to the extent necessary, obtaining any waivers from disqualified individuals). The Company agrees to provide to Parent written drafts of the stockholder disclosure statement, waivers, and stockholder approval forms that will be provided to disqualified individuals and Stockholders in advance no less than 10 days of delivering such documents to the disqualified individuals and Stockholders, as applicable, and shall allow Parent and its representatives a reasonable opportunity to review and provide comments on such documents. To the extent any Section 280G Payments result from payments or other applicable Law.
(v) With respect to each Parent Benefit Plan that is subject to Title IV or Section 302 of ERISA or Section 412 or 430 of the Code (each, a “Parent Title IV Plan”): (A) there does not exist any failure to meet the “minimum funding standard” of Section 412 of the Code or 302 of ERISA (whether or not waived), (B) no such plan is in “at-risk” status for purposes of Section 430 of the Code, (C) the present value of accrued benefits under such Parent Title IV Plan, based upon the actuarial assumptions used for funding purposes in the most recent actuarial report prepared by such Parent Title IV Plan’s actuary with respect to such Parent Title IV Plan, did not, as of its latest valuation date, exceed the then current fair market value of the assets of such Parent Title IV Plan allocable to such accrued benefits, (D) no reportable event within the meaning of Section 4043(c) of ERISA has occurred, (E) all premiums to the PBGC have been timely paid in full, (F) no liability (other than for premiums to the PBGC) under Title IV of ERISA has been or is expected to be incurred provided under any agreements or arrangements established by Parent or any by Parent on behalf of its ERISA Affiliatesthe Surviving Corporation that are intended to become effective at or after the Effective Time, and (G) the PBGC has not instituted proceedings to terminate any Parent shall disclose such Parent Title IV Plan and, arrangements to the knowledge of Parent, no circumstances exist which could serve as a basis for the institution of such proceedings.
(vi) Except as set forth on Section 3.2(j)(vi) Company at least five Business Days in advance of the Parent Disclosure Letter, neither Closing Date such that such payments or other benefits may become subject to 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) increase any benefits otherwise payable or trigger any other obligation under any Parent Benefit Plan, (B) result in any acceleration of the time of payment, funding or vesting of any such benefits or (C) result in any limitation on the right of Parent or any of its Subsidiaries to amend, merge, terminate or receive a reversion of assets from any Parent Benefit Plan or related trustvote described herein.
(vii) No Parent Benefit Plan provides for the gross-up or reimbursement of Taxes under Section 409A or 4999 of the Code or otherwise.
Appears in 1 contract
Samples: Merger Agreement (Falcon Capital Acquisition Corp.)
Benefit Plans. (ia) Section 3.2(j)(i) of the Parent Disclosure Letter contains The Company has provided Purchaser with a true, true and complete and correct list of each Benefit Plan sponsoredof a Target Company (each, maintained or contributed by Parent or any a “Company Benefit Plan”), and the Company has engaged ADP to administer certain of its Subsidiaries, or which Parent or any of its Subsidiaries is obligated to sponsor, maintain or contribute to, or with respect to which Parent or its Subsidiaries otherwise has any liability (the “Parent such Company Benefit Plans”). No Parent Benefit Plan is established or maintained outside of , including without limitation, the United States or for the benefit of current or former employees of Parent or any of its Subsidiaries residing outside of the United States.
(iiCompany’s 401(k) Parent has delivered or plan and medical and other benefits made available to the employees of the Target Companies. To the Company’s Knowledge, with respect to each Company prior Benefit Plan, there are no funded benefit obligations for which contributions have not been made or properly accrued and there are no unfunded benefit obligations that have not been accounted for by reserves, or otherwise properly footnoted in accordance with GAAP on the Company Financials. No Target Company is or has in the past been a member of a “controlled group” for purposes of Section 414(b), (c), (m) or (o) of the Code, nor does any Target Company have any Liability with respect to any collectively-bargained for plans, whether or not subject to the provisions of ERISA. No statement, either written or oral, has been made by any Target Company to any Person with regard to any Company Benefit Plan that was not in accordance with the Company Benefit Plan in any material respect.
(b) To the Company’s Knowledge, each Company Benefit Plan is and has been operated at all times in compliance with all applicable Laws in all material respects, including ERISA and the Code. To the Company’s Knowledge, each Company Benefit Plan which is intended to be “qualified” within the meaning of Section 401(a) of the Code (i) has been determined by the IRS to be so qualified (or is based on a prototype plan which has received a favorable opinion letter) during the period from its adoption to the date of this Agreement a true, correct and complete copy of each Parent Benefit Plan currently in effect and, with respect thereto, if applicable, (A) all amendments, the current trust (or other funding vehicle) agreements, and the most recent summary plan descriptions, (B) 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 Parent Benefit Plan, (C) the most recent determination letter from the IRS (if applicable) for such Parent Benefit Plan and (Dii) any notice to or from the IRS or any office or representative of the Department of Labor relating to any unresolved compliance issues in respect of such Parent Benefit Plan.
(iii) Except as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on Parent, (A) each Parent Benefit Plan its related trust 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 thereunder, (B) each Parent Benefit Plan intended determined to be qualified exempt from taxation under Section 401(a501(a) of the Code has received a or the Target Companies have requested an initial favorable IRS determination or opinion letter as to its qualifications from of qualification and/or exemption within the IRS or is entitled to rely on an advisory or opinion letter as to its qualifications issued with respect to an IRS approved master and prototype or volume submitter planperiod permitted by applicable Law. To the Company’s Knowledge, and there are no existing circumstances or any events that have occurred that would reasonably be expected to fact exists which could adversely affect the qualified status of such Company Benefit Plans or the exempt status of such trusts.
(c) With respect to each Company Benefit Plan which covers any such plancurrent or former officer, director, consultant or employee (Cor beneficiary thereof) neither Parent nor any of its Subsidiaries has engaged in a transaction that has resulted in, or would reasonably be expected to result inTarget Company, the assessment Company has provided to Purchaser accurate and complete copies, if applicable, of a civil penalty upon Parent or any of its Subsidiaries pursuant all documents relating to Section 409 or 502(isuch Company Benefit Plans requested by Purchaser.
(d) of ERISA or a tax imposed pursuant to Section 4975 or 4976 of To the Code that has not been satisfied in fullCompany’s Knowledge, (D) there does not now exist, nor, to the knowledge of Parent, do any circumstances exist that would reasonably be expected to result in, any Controlled Group Liability that would be a liability of Parent, any of its Subsidiaries or any of their respective ERISA Affiliates, (E) all payments required to be made by or with respect to each Parent Company Benefit Plan: (i) such Company Benefit Plan (including has been administered and enforced in all contributions, insurance premiums or intercompany charges) with respect to all prior periods have been timely made or paid by Parent or its Subsidiaries material respects in accordance with its terms, the provisions Code and ERISA; (ii) no breach of each of the Parent Benefit Plans and applicable Law orfiduciary duty has occurred; (iii) no Action is pending, 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 Parent in accordance with GAAP and (F) there are no pending or, to the knowledge of ParentCompany’s Knowledge, threatened claims by or on behalf of any Parent Benefit Plan, by any employee or beneficiary covered under any Parent Benefit Plan or otherwise involving any Parent Benefit Plan or any trusts related thereto (other than routine claims for benefitsbenefits arising in the ordinary course of administration).
; (iv) None of Parentno prohibited transaction, any of its Subsidiaries or any of their respective ERISA Affiliates 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 as defined in connection with: (A) a plan subject to Title IV or Section 302 406 of ERISA or Section 412 or Section 430 4975 of the Code, has occurred, excluding transactions effected pursuant to a statutory or administration exemption; and (Bv) all contributions and premiums due through the Closing Date have been made in all material respects as required under ERISA or have been fully accrued in all material respects on the Company Financials.
(e) No Company Benefit Plan is a “multiple employer welfare arrangement” (as defined in Section 3(40) of ERISA), a “multiple employer benefit plan” (as defined in Section 413(c414(j) of the Code) or ), a “multiemployer plan” (as defined in Section 3(37) of ERISA)) or a “multiple employer plan” (as described in Section 413(c) of the Code) or is otherwise subject to Title IV of ERISA or Section 412 of the Code, and no Target Company has incurred any Liability or otherwise could have any Liability, contingent or otherwise, under Title IV of ERISA and no condition presently exists that is expected to cause such Liability to be incurred. To the Company’s Knowledge, no Company Benefit Plan will become a multiple employer plan with respect to any Target Company immediately after the Closing Date. To the Company’s Knowledge, no Target Company currently maintains or has ever maintained, or is required currently or has ever been required to contribute to or otherwise participate in, a multiple employer welfare arrangement or voluntary employees’ beneficiary association as defined in Section 501(c)(9) of the Code.
(Cf) There is no arrangement under any Company Benefit Plan with respect to any employee that would result in the payment of any amount that by operation of Sections 280G or 162(m) of the Code would not be deductible by the Target Companies and no arrangement exists pursuant to which a Target Company will be required to “gross up” or otherwise compensate any person because of the imposition of any excise tax on a payment to such person.
(g) To the Company’s Knowledge, with respect to each Company Benefit Plan which is a “welfare plan” (as described in Section 3(1) of ERISA): (i) no such plan or arrangement which provides for post-employment or post-retirement medical or welfare death benefits for retired with respect to current or former employees of a Target Company beyond their termination of employment (other than coverage mandated by Law, which is paid solely by such employees); and (ii) there are no reserves, assets, surplus or beneficiaries prepaid premiums under any such plan. Each Target Company has complied with the provisions of Section 601 et seq. of ERISA and Section 4980B of the Code.
(h) To the Company’s Knowledge, the consummation of the transactions contemplated by this Agreement and the Ancillary Documents will not: (i) entitle any individual to severance pay, unemployment compensation or dependents thereofother benefits or compensation; (ii) accelerate the time of payment or vesting, except pursuant or increase the amount of any compensation due, or in respect of, any individual; or (iii) result in or satisfy a condition to the payment of compensation that would, in combination with any other payment, result in an “excess parachute payment” within the meaning of Section 280G of the Code. To the Company’s Knowledge, no Target Company has incurred any Liability for any Tax imposed under Chapter 43 of the Code or civil liability under Section 502(i) or (l) of ERISA.
(i) Except to the extent required by Section 4980B of the Code or similar state Law, no Target Company provides health or 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 applicable Lawtermination of employment or service.
(vj) With respect To the Company’s Knowledge, all Company Benefit Plans can be terminated at any time as of or after the Closing Date without resulting in any Liability to each Parent the Surviving Company or Purchaser or their respective Affiliates for any additional contributions, penalties, premiums, fees, fines, excise taxes or any other charges or liabilities.
(k) Each Company Benefit Plan that is subject to Title IV or Section 302 of ERISA or Section 412 or 430 409A of the Code (each, a “Parent Title IV Section 409A Plan”): (A) there does not exist any failure to meet as of the “minimum funding standard” Closing Date is indicated as such on Schedule 4.19(k). No Company Options or other equity-based awards have been issued or granted by the Company that are, or are subject to, a Section 409A Plan. Each Section 409A Plan has been administered in compliance, and is in documentary compliance, with the applicable provisions of Section 412 of the Code or 302 of ERISA (whether or not waived), (B) no such plan is in “at-risk” status for purposes of Section 430 409A of the Code, (C) the present value of accrued benefits under such Parent Title IV Plan, based upon the actuarial assumptions used for funding purposes in the most recent actuarial report prepared by such Parent Title IV Plan’s actuary regulations thereunder and other official guidance issued thereunder. No Target Company has any obligation to any employee or other service provider with respect to such Parent Title IV Plan, did not, as of its latest valuation date, exceed the then current fair market value any Section 409A Plan that may be subject to any Tax under Section 409A of the assets Code. No payment to be made under any Section 409A Plan is, or to the Knowledge of such Parent Title IV Plan allocable the Company will be, subject to such accrued benefits, (D) no reportable event within the meaning penalties of Section 4043(c) of ERISA has occurred, (E) all premiums to the PBGC have been timely paid in full, (F) no liability (other than for premiums to the PBGC) under Title IV of ERISA has been or is expected to be incurred by Parent or any of its ERISA Affiliates, and (G) the PBGC has not instituted proceedings to terminate any such Parent Title IV Plan and, to the knowledge of Parent, no circumstances exist which could serve as a basis for the institution of such proceedings.
(vi) Except as set forth on Section 3.2(j)(vi409A(a)(1) of the Parent Disclosure LetterCode. There is no Contract or plan to which any Target Company is a party or by which it is bound to compensate any employee, neither the execution and delivery of this Agreement nor the consummation consultant or director for penalty taxes paid pursuant to Section 409A of the transactions contemplated hereby (either alone or in conjunction with any other event) will (A) increase any benefits otherwise payable or trigger any other obligation under any Parent Benefit Plan, (B) result in any acceleration of the time of payment, funding or vesting of any such benefits or (C) result in any limitation on the right of Parent or any of its Subsidiaries to amend, merge, terminate or receive a reversion of assets from any Parent Benefit Plan or related trustCode.
(vii) No Parent Benefit Plan provides for the gross-up or reimbursement of Taxes under Section 409A or 4999 of the Code or otherwise.
Appears in 1 contract
Samples: Merger Agreement (Genesis Growth Tech Acquisition Corp.)
Benefit Plans. (ia) Section 3.2(j)(iSet forth on Schedule 4.19(a) of the Parent Company Disclosure Letter contains Schedules is a true, true and complete and correct list of each Foreign Plan and Benefit Plan sponsoredmaintained, maintained sponsored or contributed to by Parent or any of its Subsidiaries, or which Parent or any of its Subsidiaries is obligated to sponsor, maintain or contribute to, a Target Company or with respect to which Parent or its Subsidiaries otherwise a Target Company has any liability Liability (the each, a “Parent Company Benefit PlansPlan”). No Parent Benefit Plan is established or maintained outside of the United States or for the benefit of current or former employees of Parent or any of its Subsidiaries residing outside of the United States.
(iib) Parent The Company has delivered or made available to the Company prior to the date of this Agreement a true, correct and complete copy of each Parent Benefit Plan currently in effect and, with respect theretoPurchaser, if applicable, copies of (Ai) all amendments, the current trust plan document for each Company Benefit Plan (or a written summary if a plan document is not available) and any amendments thereto, and any related insurance policies, trust agreements and other funding vehiclearrangements, (ii) agreements, and the most recent summary plan descriptionsdescription for each Company Benefit Plan for which such a summary plan description is required and any summary of material modifications thereto, (Biii) the most recent annual report (Form 5500 series includingfavorable determination, where opinion or advisory letter, as 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 Parent Benefit Plan, (C) the most recent determination letter from the IRS (if applicable) for such Parent Benefit Plan and (D) any notice with respect to or from the IRS or any office or representative of the Department of Labor relating to any unresolved compliance issues in respect of such Parent Benefit Plan.
(iii) Except as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on Parent, (A) each Parent 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 thereunder, (B) each Parent Company Benefit Plan intended to be qualified under Section 401(a) of the Code, (iv) the three (3) most recent annual reports (Form 5500 series) with respect to any Company Benefit Plan, (v) the most recent financial statements with respect to any Company Benefit Plan, (vi) all notices that were issued by, or non-routine correspondence received from, the IRS, U.S. Department of Labor, or any other Governmental Entity with respect to any Company Benefit Plan within the last three years, and (vii) any material associated administrative agreements with respect to any Company Benefit Plan, in each case, as of the date of this Agreement.
(c) Each Company Benefit Plan has been adopted, established, registered (where required) administered, maintained and operated in material compliance with its terms and the requirements of applicable Law. Each Company Benefit Plan that is intended to meet the requirements of a “qualified plan” under Section 401(a) of the Code has received a favorable determination or opinion letter as to its qualifications from the IRS Internal Revenue Service (“IRS”) or is entitled to rely on an advisory or opinion letter as to its qualifications issued with respect to an IRS approved master and in the form of a prototype or volume submitter planplan with respect to which the IRS has issued a favorable opinion or advisory letter, as applicable, and there are no existing circumstances or any events that have occurred that would reasonably be expected to adversely affect the qualified status of any such plan, (C) neither Parent nor any of its Subsidiaries has engaged in a transaction that has resulted in, or would reasonably be expected to result in, the assessment of a civil penalty upon Parent or any of its Subsidiaries pursuant to Section 409 or 502(i) of ERISA or a tax imposed pursuant to Section 4975 or 4976 Knowledge of the Code that Company, no event has not been satisfied in full, (D) there does not now exist, nor, to the knowledge of Parent, do any circumstances exist occurred and no condition exists that would reasonably be expected to result in, in the loss of any Controlled Group Liability that would be a liability such qualified status of Parent, any of its Subsidiaries such Company Benefit Plan. All contributions or any of their respective ERISA Affiliates, (E) all payments premiums required to be made remitted by the applicable Target Company under the terms of each Company Benefit Plan, or with respect to each Parent Benefit Plan (including all contributionsby applicable Law, insurance premiums or intercompany charges) with respect to all prior periods have been remitted in a timely made or paid by Parent or its Subsidiaries fashion in accordance with applicable Law and the provisions of each terms of the Parent applicable Company Benefit Plan, and all Liabilities of the Target Companies related to all Company 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 fully and records of Parent accurately disclosed in accordance with GAAP and applicable accounting principles. No Target Company nor any ERISA Affiliate has incurred or is reasonably expected to incur any Liability for any Tax imposed under Chapter 43 of the Code or civil Liability under Section 502(i) or (Fl) there are no pending or, to the knowledge of Parent, threatened claims by or on behalf of any Parent Benefit Plan, by any employee or beneficiary covered under any Parent Benefit Plan or otherwise involving any Parent Benefit Plan or any trusts related thereto (other than routine claims for benefits)ERISA.
(ivd) None of Parent, any of its Subsidiaries or any of their respective ERISA Affiliates maintains, contributes to, or participates in, or has ever during the past six No Company Benefit Plan is a (6i) years maintained, contributed to, or participated in, or otherwise has any obligation or liability in connection with: (A) a plan subject to Title IV or Section 302 of ERISA or Section 412 or Section 430 of the Code, (B) a “multiple employer welfare arrangement” (as defined in Section 3(40) of ERISA), a “multiple employer benefit plan” (as defined in Section 413(c3(35) of the CodeERISA) or a “multiemployer plan” (as defined in Section 3(374001(a)(3) of ERISA), or (C) any plan or arrangement which provides for post-employment or post-retirement medical or welfare benefits for retired or former employees or beneficiaries or dependents thereofin each case, except pursuant to Section 4980B of the Code or other applicable Law.
(v) With respect to each Parent Benefit Plan that is or was subject to Title IV or Section 302 of ERISA or Section 412 or 430 of the Code (each, a “Parent Title IV Plan”): (A) there does not exist any failure to meet the “minimum funding standard” of Section 412 of the Code or 302 Title IV of ERISA, (ii) multiple employer plan described in Section 413(b) or (c) of the Code or Section 210 of ERISA, (iii) nonqualified deferred compensation plan within the meaning of Section 409A(d)(1) of the Code, (iv) “multiple employer welfare arrangement” within the meaning of Section 3(40) of ERISA (whether or not waivedsubject thereto), (Bv) no such plan is in “at-risk” status for purposes provides medical or life insurance benefits beyond termination of Section 430 employment, except as required by applicable Law or until the end of the Codemonth of termination, or (Cvi) provides for any reimbursement, indemnity or gross-up to compensate an employee for any Tax Liability. No Target Company has any Liability under Title IV of ERISA or on account of at any time being considered a single employer under Section 414 of the present value Code with any other Person.
(e) The consummation of accrued the transactions contemplated by this Agreement and the Ancillary Documents will not: (i) entitle any director, employee or individual independent contractor of a Target Company to severance pay or other payment, benefits or compensation under any Company Benefit Plan; (ii) accelerate the time of payment or vesting, or increase the amount of any compensation due, or in respect of, any director, employee or individual independent contractor of a Target Company; (iii) give rise to any forgiveness of indebtedness of any director, employee or individual independent contractor of a Target Company for amounts due or owing to a Target Company; (iv) cause any Target Company to transfer or set aside any assets to fund any benefits under such Parent Title IV any Company Benefit Plan, based upon the actuarial assumptions used for funding purposes or (v) result in the most recent actuarial report prepared by such Parent Title IV Plan’s actuary with respect to such Parent Title IV Plan, did not, as of its latest valuation date, exceed the then current fair market value of the assets of such Parent Title IV Plan allocable to such accrued benefits, an excess parachute payment (D) no reportable event within the meaning of Section 4043(c280G of the Code) or limit the Tax deductibility of ERISA has occurred, any amount payable under any Company Benefit Plan by operation of Section 280G.
(Ef) all premiums to the PBGC have been timely paid in full, (F) There are no liability (other than for premiums to the PBGC) under Title IV of ERISA has been pending audits or is expected to be incurred investigations by Parent or any of its ERISA Affiliates, and (G) the PBGC has not instituted proceedings to terminate Governmental Authority involving any such Parent Title IV Company Benefit Plan and, to the knowledge Knowledge of Parentthe Company, no circumstances exist which could serve as a basis threatened or pending material claims (except for individual claims for benefits payable in the institution of such proceedings.
(vi) Except as set forth on Section 3.2(j)(vi) normal operations of the Parent Disclosure LetterCompany Benefit Plans, neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby (either alone as applicable), suits or in conjunction with proceedings involving any other event) will (A) increase any benefits otherwise payable or trigger any other obligation under any Parent Company Benefit Plan, (B) result in any acceleration nor, to the Knowledge of the time of paymentCompany, funding or vesting are there any facts which could reasonably give rise to any material liability in the event of any such benefits audit, investigation, claim, suit or (C) result in any limitation on the right of Parent or any of its Subsidiaries to amend, merge, terminate or receive a reversion of assets from any Parent Benefit Plan or related trustproceeding.
(vii) No Parent Benefit Plan provides for the gross-up or reimbursement of Taxes under Section 409A or 4999 of the Code or otherwise.
Appears in 1 contract
Samples: Business Combination Agreement (Far Peak Acquisition Corp)
Benefit Plans. (ia) Each Benefit Plan is listed in Section 3.2(j)(i4.13(a) of the Disclosure Letter. With respect to each such Benefit Plan, the Company has made available to Parent Disclosure Letter contains a true, complete and correct list of each Benefit Plan sponsoredcorrect, maintained or contributed by Parent or any of its Subsidiariescurrent, or which Parent or any of its Subsidiaries is obligated to sponsor, maintain or contribute to, or with respect to which Parent or its Subsidiaries otherwise has any liability (the “Parent Benefit Plans”). No Parent Benefit Plan is established or maintained outside of the United States or for the benefit of current or former employees of Parent or any of its Subsidiaries residing outside of the United States.
(ii) Parent has delivered or made available to the Company prior to the date of this Agreement a true, correct and complete copy of each Parent Benefit Plan currently in effect and, with respect (i) the plan document and all amendments thereto, if applicable, (A) all amendments, the current trust (or other funding vehicle) agreementsBenefit Plan has been reduced to writing, and otherwise a written summary of all material terms of the Benefit Plan, as amended; (ii) each trust, custodial, insurance or administrative agreement relating to the Benefit Plan; (iii) the most recent summary plan descriptionsdescription or other written explanation for the Benefit Plan provided to participants, as well as any employee handbooks or similar communications; (Biv) the most recent three years of annual report reports (including Form 5500 series including5500), where applicableif any, all schedules and actuarial and accountants’ reports) filed with the Department of Labor Labor, the IRS or any other Governmental Authority; and the most recent actuarial report or other financial statement relating to such Parent Benefit Plan, (Cv) the most recent determination letter from (and if a preapproved plan the IRS (most recent opinion letter), if applicable) for such Parent any, issued by the IRS, and, if the Benefit Plan and (D) any notice is intended to or from be qualified under Code § 401(a), the IRS or any office or representative of most recent non-discrimination testing results with respect to the Department of Labor relating to any unresolved compliance issues in respect of such Parent Benefit Plan.
(iiib) Except as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on Parent, (A) each Parent Each Benefit Plan has been established and maintained and administered in compliance with its terms and with applicable Lawand, including, but not limited to, ERISA and the Code both as to form and in operation, with the requirements of ERISA, the Code, and all other applicable Laws, and all employer or employee contributions, premiums, expenses and other obligations to or in respect of each case the regulations thereunder, (B) each Parent Benefit Plan intended to be qualified under Section 401(a) of the Code has received a favorable determination or opinion letter as to its qualifications from the IRS or is entitled to rely on an advisory or opinion letter as to its qualifications 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 adversely affect the qualified status of any such plan, (C) neither Parent nor any of its Subsidiaries has engaged in a transaction that has resulted in, or would reasonably be expected to result in, the assessment of a civil penalty upon Parent or any of its Subsidiaries pursuant to Section 409 or 502(i) of ERISA or a tax imposed pursuant to Section 4975 or 4976 of the Code that has not been satisfied in full, (D) there does not now exist, nor, to the knowledge of Parent, do any circumstances exist that would reasonably be expected to result in, any Controlled Group Liability that would be a liability of Parent, any of its Subsidiaries or any of their respective ERISA Affiliates, (E) all payments required to be made by or with respect to each Parent Benefit Plan (including all contributions, insurance premiums or intercompany charges) with respect to all prior periods have been timely made or paid by Parent or its Subsidiaries in accordance with the provisions of each of the Parent Benefit Plans and applicable Law full or, to the extent not required to be made or paid on or before the date hereofyet due, have been reflected adequately and properly accrued on the books and records applicable financial statements of Parent the Company or any Subsidiary in accordance with GAAP and (F) there are no pending orGAAP. None of the Company, to the knowledge of Parent, threatened claims by or on behalf of any Parent Benefit Plan, by any employee or beneficiary covered under any Parent Benefit Plan or otherwise involving any Parent Benefit Plan Subsidiary or any trusts related thereto other Person that is or at the applicable time was or would have been treated as a single employer under Code §§ 414(b), (other than routine claims for benefitsc).
, (ivm) None or (n) or Section 4001(b) of Parent, ERISA has at any of its Subsidiaries or any of their respective ERISA Affiliates maintains, contributes to, or participates in, or has ever during the past six (6) years time maintained, contributed to, to or participated in, or otherwise has incurred any obligation or liability in connection with: (A) a plan subject to Title IV or Section 302 of ERISA or Section 412 or Section 430 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 Liability under any “multiemployer plan” (as defined in Section 3(37) of ERISA) or “multiple employer plan” (within the meaning of Code § 413(c), ) or (C) any plan or arrangement which provides for post-employment or post-retirement medical or welfare benefits for retired or former employees or beneficiaries or dependents thereof, except pursuant to Section 4980B of the Code or other applicable Law.
(v) With respect to each Parent ERISA Benefit Plan that is subject to Title IV of ERISA or Section 302 of ERISA or Section 412 Code § 412, nor has any event occurred nor does any circumstance exist that has given or 430 could give rise to a Liability of the Code (each, a “Parent Company or any Subsidiary under Title I or Title IV Plan”): (A) there does not exist any failure to meet the “minimum funding standard” of Section 412 ERISA or Chapter 43 of the Code or 302 foreign law or regulations relating to employee benefit plans. None of the Company, any Subsidiary or any Affiliate thereof has engaged in a transaction that could subject the Company, any Subsidiary or any such Affiliate to a Tax or penalty imposed by either Code § 4975 or Section 502(i) of ERISA. No Benefit Plan provides post-termination welfare benefits with respect to any current or former director, officer or employee of the Company or any Subsidiary (other than benefit coverage to the extent mandated by applicable Law, including coverage to the extent provided pursuant to Code § 4980B and Section 601 et. Seq. of ERISA (whether or not waived“COBRA”), (B) no such plan is in “at-risk” status for purposes of Section 430 and none of the CodeCompany, any Subsidiary or any Affiliate thereof has any Liability to provide post-termination or retiree welfare benefits to any Person, nor has the Company, any Subsidiary or any Affiliate thereof ever represented, promised or contracted to any employee or any other person that such employee or other Person would be provided with post-termination or retiree welfare benefits, except to the extent required by COBRA or other applicable Law.
(Cc) There are no pending nor, to the present value Knowledge of accrued benefits under such Parent Title IV the Company, threatened disputes, arbitrations, claims, suits or grievances involving or relating to any Benefit Plan, based upon other than routine claims for benefits. There are no audits, inquiries or legal proceedings pending or, to the actuarial assumptions used for funding purposes in Company’s Knowledge, threatened by the most recent actuarial report prepared by such Parent Title IV Plan’s actuary IRS or the Department of Labor, or any similar Governmental Entity with respect to such Parent Title IV any Benefit Plan, did not, as of its latest valuation date, exceed the then current fair market value of the assets of such Parent Title IV Plan allocable to such accrued benefits, (D) no reportable event within the meaning of Section 4043(c) of ERISA has occurred, (E) all premiums to the PBGC have been timely paid in full, (F) no liability (other than for premiums to the PBGC) under Title IV of ERISA has been or is expected to be incurred by Parent or any of its ERISA Affiliates, and (G) the PBGC has not instituted proceedings to terminate any such Parent Title IV Plan and, to the knowledge of Parent, no circumstances exist which could serve as a basis for the institution of such proceedings.
(vid) Except as set forth on in Section 3.2(j)(vi4.13(d) of the Parent Disclosure Letter, neither the execution and delivery of this Agreement by the Company nor the consummation of the transactions contemplated hereby shall (either alone or in conjunction with upon occurrence of any additional or subsequent events) (i) entitle any current or former director, employee, contractor or consultant of the Company or any Subsidiary to severance pay or any other eventpayment; (ii) will (A) increase any benefits otherwise payable or trigger any other obligation under any Parent Benefit Plan, (B) result in any acceleration of accelerate the time of payment, funding funding, or vesting vesting, or increase the amount of compensation due to any such benefits individual, (iii) limit or restrict the right of the Company or any Subsidiary to merge, amend or terminate any Benefit Plan, (iv) increase the amount payable or result in any other material obligation pursuant to any Benefit Plan, or (Cv) result in “excess parachute payments” within the meaning of Code § 280G(b).
(e) Each Benefit Plan which is intended to qualify under Code § 401(a) is so qualified and has received a determination letter and, if a preapproved plan, has also received an opinion letter, to that effect from the IRS and, to the Company’s Knowledge, no circumstances exist which would reasonably be expected to adversely affect such qualification.
(f) Each welfare benefit trust or fund that constitutes or is associated with a Benefit Plan and that is intended to be exempt from federal income Tax under Code § 501(a)(9) is so exempt.
(g) Each Benefit Plan that is a nonqualified deferred compensation plan subject to Code § 409A has been operated and administered in compliance with Code § 409A and all applicable regulatory guidance. Neither the Company nor any limitation on Subsidiary has any obligation to gross up, indemnify or otherwise reimburse any individual for any excise taxes, interest or penalties incurred pursuant to Code § 409A.
(h) The Company, each Subsidiary and all Affiliates thereof comply in all material respects with the right applicable requirements of Parent COBRA or any similar state statute with respect to each Benefit Plan that is a group health plan within the meaning of Code § 5000(b)(1) or such state statute.
(i) Each Benefit Plan can be amended, terminated or otherwise discontinued after the Effective Time in accordance with its Subsidiaries terms, without material liability to Parent, Merger Sub, the Company, any Subsidiary or any Affiliate thereof (other than ordinary administration expenses in respect of accrued benefits thereunder). Neither the Company nor any Subsidiary has any commitment or obligation, nor has the Company or any Subsidiary made any representation to any employee, officer, director, independent contractor or consultant, whether or not legally binding, to adopt, amend, merge, modify or terminate or receive a reversion of assets from any Parent Benefit Plan or related trustany collective bargaining agreement, in connection with the consummation of the transactions contemplated by this Agreement or otherwise.
(viij) The Company has separately identified in Section 4.13(j) of the Disclosure Letter (i) each Benefit Plan that contains a change in control provision and (ii) each Benefit Plan that is maintained, sponsored, contributed to, or required to be contributed to by the Company or any Subsidiary primarily for the benefit of employees outside of the U.S.
(k) Without limiting the generality of any of the foregoing representations and warranties in this Section 4.13, the Bonus Arrangement and the grants of Bonus Shares to the Bonus Grantees have been adopted and approved by all required corporate actions of the Company and each Subsidiary, including any required Stockholder approvals.
(l) No Parent insurance policy or any other Contract affecting any Benefit Plan provides for the gross-up requires or reimbursement of Taxes under Section 409A permits a retroactive increase in contributions, premiums or 4999 other payments due thereunder.
(m) None of the Code Benefit Plans (other than pension plans) provide benefits to retired employees of the Company or otherwiseany Subsidiary or to the beneficiaries or dependents of retired employees of the Company or any Subsidiary.
Appears in 1 contract
Benefit Plans. (ia) Section 3.2(j)(iSchedule 3.13(a)(i) of the Parent Disclosure Letter contains sets forth a true, complete and correct accurate list of each Benefit Plan sponsored, maintained or contributed by Parent or any Plan. Schedule 3.13(a)(ii) sets forth a complete and accurate list of its Subsidiaries, or which Parent or any of its Subsidiaries is obligated to sponsor, maintain or contribute to, or with respect to which Parent or its Subsidiaries otherwise has any liability (the “Parent each Benefit Plans”). No Parent Benefit Plan is established or maintained outside of the United States or for the benefit of current or former employees of Parent or any of its Subsidiaries residing outside of the United StatesAgreement.
(iib) Parent With respect to each material Benefit Plan and each material Benefit Agreement, as of the date of this Agreement, Seller has delivered or made available complete and accurate copies of such Benefit Plan (or a written description thereof, with respect to the Company prior each unwritten Assumed Benefit Plan) or Benefit Agreement (or a representative form thereof and copies of each Assumed Benefit Agreement differing materially from such form), including any amendment thereto. With respect to each material Assumed Benefit Plan and each material Assumed Benefit Agreement, as of the date of this Agreement a trueAgreement, correct Seller has delivered or made available complete and complete copy accurate copies of (i) each Parent Benefit Plan currently in effect andtrust, with respect theretoinsurance, if applicable, (A) all amendments, the current trust (annuity or other funding vehicleContract related thereto, (ii) agreements, and the most recent summary plan descriptionsdescription and any summary of material modifications (if any) prepared for such Benefit Plan, (Biii) the most recent financial statements and actuarial or other valuation reports prepared with respect thereto, (iv) the most recent determination or opinion letter from the Internal Revenue Service (“IRS”) and (v) the most recent annual report (on Form 5500 series including, where applicable, all schedules and actuarial and accountants’ reports) required to be filed with the Department of Labor and the most recent actuarial report or other financial statement relating to such Parent Benefit Plan, (C) the most recent determination letter from the IRS with respect thereto (if applicableany).
(c) for such Parent Each Assumed Benefit Plan and each Assumed Benefit Agreement (Dand any related trust or other funding vehicle) any notice to or from has been administered in accordance with its terms and is in compliance with ERISA, the IRS or any office or representative Code and all other Applicable Laws, except for instances of the Department of Labor relating to any unresolved compliance issues in respect of such Parent Benefit Plan.
(iii) Except as would not reasonably be expected to havenoncompliance that, individually or in the aggregate, have not had and are not reasonably likely to have a Company Material Adverse Effect on ParentEffect. Each of the Companies and, (A) to the extent applicable, each Parent Benefit Plan has been maintained and administered member of the Seller Group, is in compliance with its terms and with applicable LawERISA, including, but not limited to, ERISA and the Code and all other Applicable Laws applicable to Assumed Benefit Plans and Assumed Benefit Agreements and the terms of all Collective Bargaining Agreements, except for instances of noncompliance that, individually or in the aggregate, have not had and are not reasonably likely to have a Company Material Adverse Effect.
(d) Schedule 3.13(d) sets forth, as of the date of this Agreement, each case the regulations thereunder, (B) each Parent Assumed Benefit Plan intended to be qualified under Section 401(athat provides health, medical, life insurance or death benefit (whether or not insured) of the Code has received a favorable determination or opinion letter as to its qualifications from the IRS or is entitled to rely on an advisory or opinion letter as to its qualifications 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 adversely affect the qualified status of any such plan, Post Business Employees (C) neither Parent nor any of its Subsidiaries has engaged in a transaction that has resulted in, or would reasonably be expected to result in, the assessment of a civil penalty upon Parent or any of its Subsidiaries pursuant to Section 409 or 502(i) of ERISA or a tax imposed pursuant to Section 4975 or 4976 of the Code that has not been satisfied in full, (D) there does not now exist, nor, to the knowledge of Parent, do any circumstances exist that would reasonably be expected to result in, any Controlled Group Liability that would be a liability of Parent, any of its Subsidiaries or any of their respective ERISA Affiliates, beneficiaries) after retirement (Eother than coverage or benefits (i) all payments required to be made by provided under Part 6 of Title I of ERISA or with respect to each Parent Benefit Plan (including all contributions, insurance premiums or intercompany chargesSection 4980(B)(f) with respect to all prior periods have been timely made or paid by Parent or its Subsidiaries in accordance with the provisions of each of the Parent Benefit Plans and applicable Law orCode, to or any other Applicable Law, or (ii) the extent not required to be made or paid on or before full cost of which is borne by the date hereof, have been reflected on the books and records of Parent in accordance with GAAP and (F) there are no pending or, to the knowledge of Parent, threatened claims by or on behalf of any Parent Benefit Plan, by any employee or beneficiary covered under any Parent Benefit Plan or otherwise involving any Parent Benefit Plan former employee (or any trusts related thereto of their beneficiaries)) (other than routine claims for benefitsthe “Post-Retirement Welfare Plans”).
(ive) None of Parent, any of its Subsidiaries or any of their respective ERISA Affiliates 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 plan subject to Title IV or Section 302 of ERISA or Section 412 or Section 430 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 plan” (as defined in Section 3(37) of ERISA), or (C) any plan or arrangement which provides for post-employment or post-retirement medical or welfare benefits for retired or former employees or beneficiaries or dependents thereof, except pursuant to Section 4980B of the Code or other applicable Law.
(v) With respect to each Parent Benefit Plan that is subject to Title IV or Section 302 of ERISA or Section 412 or 430 of the Code (each, a “Parent Title IV Plan”): (A) there does not exist any failure to meet the “minimum funding standard” of Section 412 of the Code or 302 of ERISA (whether or not waived), (B) no such plan is in “at-risk” status for purposes of Section 430 of the Code, (C) the present value of accrued benefits under such Parent Title IV Plan, based upon the actuarial assumptions used for funding purposes in the most recent actuarial report prepared by such Parent Title IV Plan’s actuary with respect to such Parent Title IV Plan, did not, as of its latest valuation date, exceed the then current fair market value of the assets of such Parent Title IV Plan allocable to such accrued benefits, (D) no reportable event within the meaning of Section 4043(c) of ERISA has occurred, (E) all premiums to the PBGC have been timely paid in full, (F) no liability (other than for premiums to the PBGC) under Title IV of ERISA has been or is expected to be incurred by Parent or any of its ERISA Affiliates, and (G) the PBGC has not instituted proceedings to terminate any such Parent Title IV Plan and, to the knowledge of Parent, no circumstances exist which could serve as a basis for the institution of such proceedings.
(vi) Except as set forth on Section 3.2(j)(vi) of the Parent Disclosure Letter, neither the execution and delivery of this Agreement nor or the consummation of the transactions Acquisition or any other transaction contemplated hereby by this Agreement (either alone or in conjunction with any other event) will (Ai) entitle any Post Business Employee to any material compensation or benefit, (ii) materially increase the amount of compensation or benefits due to any Post Business Employee or (iii) accelerate the time of payment or vesting, or trigger any payment or funding, of any material compensation or benefits otherwise payable or trigger any other obligation under any Parent Benefit Plan, (B) result in any acceleration of the time of payment, funding or vesting of any such benefits or (C) result in any limitation on the right of Parent or any of its Subsidiaries to amend, merge, terminate or receive a reversion of assets from any Parent material Assumed Benefit Plan or related trustmaterial Assumed Benefit Agreement, except, in each case, for arrangements for which the Seller Group shall be solely liable. No Assumed Benefit Plan and no Assumed Benefit Agreement would result in the payment (whether in connection with a termination of employment or otherwise) of any “excess parachute payment” within the meaning of Section 280G of the Code as a result of the transactions contemplated by this Agreement.
(viif) No Parent With respect to each Assumed Benefit Plan provides for the gross-up or reimbursement of Taxes Plan: (i) if intended to qualify under Section 409A 401(a), 401(k) or 4999 403(a) of the Code or otherwiseunder any law or regulation of any foreign jurisdiction or governmental agency, such plan so qualifies, its trusts (if any) are exempt from taxation under Section 501(a) of the Code (or the comparable provisions of any law or regulation of any foreign jurisdiction or governmental agency) and the consummation of the transactions contemplated by this Agreement will not adversely affect such qualification or exemption; (ii) there are no pending or threatened claims against, by or on behalf of any Assumed Benefit Plans or the assets, fiduciaries or administrators thereof (other than routine claims for benefits); (iii) no breaches of fiduciary duty under which the Company or a fiduciary could reasonably be expected to incur a material liability have occurred; (iv) no non-exempt prohibited transaction within the meaning of Section 406 of ERISA or Section 4975 of the Code has occurred; (v) no Lien imposed under the Code, ERISA or any foreign law exists; and (vi) all premiums and expenses to or in respect of such Assumed Benefit Plan have been timely paid in full or, to the extent not yet due, have been adequately accrued on Seller’s consolidated financial statements; except, in the case of each of (i), (ii), (iii), (iv), (v) and (vi), as could not reasonably be expected to give rise to any material liability to the Companies or the Purchaser.
(g) Except as set forth on Schedule 3.13(g), no Assumed Benefit Plan, nor any Company or any Commonly Controlled Entity with respect to any Assumed Benefit Plan, is under audit or is the subject of an audit or investigation by the IRS, the U.S. Department of Labor, the PBGC or any other federal or state governmental agency or any foreign Regulatory Agency, nor is any such audit or investigation pending or, to the knowledge of the Company, threatened, except as could not reasonably be expected to give rise to any material liability to the Companies or the Purchaser.
Appears in 1 contract
Benefit Plans. (ia) Section 3.2(j)(i) 4.20 of the Parent Disclosure Letter contains Schedule includes a true, complete and correct list of all Company Plans, and the Company has provided or made available to Buyer a complete copy of (i) each Benefit Company Plan sponsored, maintained (or contributed by Parent or any of its Subsidiaries, or which Parent or any of its Subsidiaries is obligated to sponsor, maintain or contribute to, or with respect to which Parent or its Subsidiaries otherwise has any liability (the “Parent Benefit Plans”). No Parent Benefit Plan is established or maintained outside a description of the United States or for the benefit material terms of current or former employees of Parent or any of its Subsidiaries residing outside of the United States.
unwritten Company Benefit Plan) and all amendments thereto, (ii) Parent each trust, custodial, or other funding arrangement, (iii) each summary plan description and summary of material modifications and (iv) the most recent application for determination letter submitted to the IRS or similar Governmental Authority and the most recent determination or opinion letter received from the IRS or similar Governmental Authority. The Company has delivered or made available to the Buyer true, complete and correct copies of all Form 5500 Series annual reports (and similar filings with any applicable Governmental Authority) for each Company prior Plan, together with all schedules, attachments and related opinions, all related agreements, insurance contracts and other agreements which implement each such Company Plan, and copies of any correspondence from or to the date of this Agreement a trueIRS, correct and complete copy of each Parent Benefit Plan currently in effect and, with respect thereto, if applicable, (A) all amendments, the current trust (or other funding vehicle) agreements, and the most recent summary plan descriptions, (B) 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 Governmental Authority relating to such Parent Benefit Planan investigation, (C) the most recent determination letter audit or penalty assessment with respect to any Company Plan or relating to requested relief from the IRS (if applicable) for such Parent Benefit Plan and (D) any notice to liability or from the IRS or any office or representative of the Department of Labor penalty relating to any unresolved compliance issues in respect of such Parent Benefit Company Plan.
(iiib) Except as would not reasonably be expected to haveotherwise set forth in Section 4.20 of the Disclosure Schedule, individually or in the aggregate, a Material Adverse Effect on Parent, (A) each Parent Benefit Company Plan has been maintained designed and documented in compliance in all material respects with all applicable Legal Requirements. Except as otherwise set forth in Section 4.20 of the Disclosure Schedule, each Company Plan has been maintained, funded, and administered in compliance in all material respects with its terms and with all applicable Law, including, but not limited to, ERISA and the Code and in each case the regulations thereunder, (B) each Parent Benefit Legal Requirements. Each Company Plan that is intended to be qualified under Section 401(a) of the Code has received a favorable determination letter from the IRS, or with respect to a prototype plan, can rely on an opinion letter as from the IRS to its qualifications the prototype plan sponsor, to the effect that such plan is so qualified and, to the Knowledge of the Company, nothing has occurred that could reasonably be expected to cause the revocation of such determination letter from the IRS or is entitled to rely the unavailability of reliance on an advisory or such opinion letter from the IRS, as to its qualifications issued applicable.
(c) The Company and the Company Subsidiaries have no liability, including withdrawal liability, 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 adversely affect the qualified status single employer plan (as such term is defined in Section 4001(b) of any such plan, (CERISA) neither Parent nor any of its Subsidiaries has engaged in a transaction that has resulted in, or would reasonably be expected to result in, the assessment of a civil penalty upon Parent or any of its Subsidiaries pursuant subject to Section 409 412 of the Code or 502(i) Title IV of ERISA or a tax imposed pursuant to Section 4975 or 4976 of the Code that has not been satisfied in full, (D) there does not now exist, nor, to the knowledge of Parent, do any circumstances exist that would reasonably be expected to result in, any Controlled Group Liability that would be a liability of Parent, any of its Subsidiaries or any of their respective ERISA Affiliates, (E) all payments required to be made by or with respect to each Parent Benefit Plan (including all contributions, insurance premiums or intercompany charges) with respect to all prior periods have been timely made or paid by Parent or its Subsidiaries in accordance with the provisions of each of the Parent 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 Parent in accordance with GAAP and (F) there are no pending or, to the knowledge of Parent, threatened claims by or on behalf of any Parent Benefit Plan, by any employee or beneficiary covered under any Parent Benefit Plan or otherwise involving any Parent Benefit Plan or any trusts related thereto (other than routine claims for benefits).
(iv) None of Parent, any of its Subsidiaries or any of their respective ERISA Affiliates 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 plan subject to Title IV or Section 302 of ERISA or Section 412 or Section 430 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 plan” (as such term is defined in Section 3(37) of ERISA)) that remains unsatisfied. No Company Plan is funded by, associated with or related to a “voluntary employees’ beneficiary association” within the meaning of Section 501(c)(9) of the Code. The Company has made or will accrue prior to the Closing Date all payments and contributions due and payable as of the Closing Date to each Company Plan as required to be made under the terms of each such Company Plan.
(d) With respect to all Company Plans and related trusts, there are no “prohibited transactions,” as that term is defined in Section 406 of ERISA or Section 4975 of the Code, that have occurred which could subject any Company Plan or the Company or any of the Company Subsidiaries, or any of the officers and employees of the Company or any of the Company Subsidiaries, to any material tax or penalty on prohibited transactions imposed by Section 501(i) of ERISA or Section 4975 of the Code.
(Ce) There are no Actions (other than routine claims for benefits by employees of the Company and the Company Subsidiaries, beneficiaries or dependents of such employees arising in the normal course of operation of a Company Plan) pending or, to the Knowledge of the Company, threatened, with respect to any Company Plan or the Company or the Company Subsidiaries, or any of the officers and employees of the Company or any of the Company Subsidiaries, with respect to any of their duties under such Company Plan.
(f) The Company and the Company Subsidiaries have complied in all material respects with all applicable health care continuation requirements of Section 601, et. seq. of ERISA, Section 4980B of the Code and similar state welfare plan or arrangement which provides for post-employment or continuation coverage laws with respect to employees and their spouses, former spouses and dependents.
(g) The Company and the Company Subsidiaries have no obligations under any Company Plan to provide post-retirement medical benefits to any employee or welfare benefits any former employee of the Company or any Company Subsidiary (or spouse or dependent thereof) other than statutory liability for retired or former employees or beneficiaries or dependents thereof, except pursuant to providing group health plan continuation coverage under Part 6 of Title I of ERISA and Section 4980B of the Code or other applicable Lawstate law.
(vh) Except as otherwise set forth in Section 4.20 of the Disclosure Schedule or as expressly provided in this Agreement, neither the negotiation or execution of this Agreement, nor the consummation of the transactions contemplated by this Agreement will, either alone or in combination with another event, (i) entitle any current or former employee or officer of the Company or any Company Subsidiary to severance, retention, bonus or other similar payment or unemployment compensation or any other payment or additional right, other than as required under applicable Legal Requirements, (ii) accelerate the time of payment or vesting, or (iii) increase the amount of compensation due any such employee or officer.
(i) No Company Plan which is an employee welfare benefit plan under Section 3(l) or ERISA is self-funded, self-insured or funded through the general assets of the Company or any Company Subsidiary. No Company Plan which is an employee welfare benefit plan under Section 3(l) of ERISA is funded by a trust or is subject to Section 419 or 419A of the Code.
(j) Except as otherwise set forth in Section 4.20 of the Disclosure Schedule, with respect to each Company Plan, there are no restrictions on the ability of the sponsor of each Company Plan to amend or terminate any Company Plan, the Company or the applicable Company Subsidiary has expressly reserved for itself and in its sole discretion the right to amend, modify or terminate any such Company Plan, or any portion of it, and, to the Knowledge of the Company, has made no representations which would conflict with or contradict such reservation or right, subject only to such constraints as may be imposed by any applicable Legal Requirement, and without material penalty or cost (other than routine administrative costs). Each Company Plan may be transferred by the Company or the applicable Company Subsidiary to Buyer. Other than with respect to Company Plans referred to in Section 7.10 of the Disclosure Schedule, neither the Company nor any Company Subsidiary has announced its intention, or undertaken to modify or terminate any Company Plan or adopt any arrangement or program which, once established, would come within the definition of a Company Plan.
(k) Except as otherwise set forth in Section 4.20 of the Disclosure Schedule, no amounts paid or payable under the Company Plans or to any “disqualified individual,” as defined in Section 280G(c) of the Code, will fail to be deductible for federal income Tax purposes by virtue of Section 162(a)(1) or Section 280G of the Code, nor will the Company or any Company Subsidiary be required to “gross up” or otherwise compensate any such person because of the imposition of any excise tax under Section 4999 of the Code on a payment to such person.
(l) Neither the Company nor any Company Subsidiary has liability, including under any Company Plan, arising out of the treatment of any Employee/Service Provider as a consultant or independent contractor and not as an employee, or vice-versa.
(m) With respect to each Parent Benefit Plan that is subject to Title IV Company Plan, all required contributions and premium payments have been made or Section 302 of ERISA or Section 412 or 430 properly accrued on the Companies’ financial statements. None of the Code assets of any Company Plan includes any share capital or other securities issued by the Company or any Company Subsidiary.
(n) With respect to each Company Plan established or maintained primarily for benefit of employees of the Company or any Company Subsidiary residing outside the United States (each, a “Parent Title IV Foreign Benefit Plan”): (A) there does not exist any failure to meet the “minimum funding standard” of ), except as set forth in Section 412 4.20 of the Code or 302 of ERISA Disclosure Schedule: (whether or not waived), (Bi) no such plan each Foreign Benefit Plan is in “at-risk” status for purposes compliance in all material respects with all applicable Legal Requirements; (ii) all employer and employee contributions to each Foreign Benefit Plan required by applicable Legal Requirements or by the terms of Section 430 of the Codesuch Foreign Benefit Plan have been made, or, if applicable, accrued, in accordance with normal accounting practices or as required pursuant to applicable Legal Requirements; (Ciii) the present value of accrued benefits under such Parent Title IV Plan, based upon the actuarial assumptions used for funding purposes in the most recent actuarial report prepared by such Parent Title IV Plan’s actuary with respect to such Parent Title IV Plan, did not, as of its latest valuation date, exceed the then current fair market value of the assets of each funded Foreign Benefit Plan, the liability of each insurer for any Foreign Benefit Plan funded through insurance or the book reserve established for any Foreign Benefit Plan, together with any accrued contributions, is sufficient to procure or provide for the accrued benefit obligations, as of the Closing Date, with respect to all current and former participants in such Parent Title IV Foreign Benefit Plan allocable according to the actuarial assumptions and valuations most recently used to determine employer contributions to such accrued benefits, Foreign Benefit Plan and no transaction contemplated by this Agreement shall cause such assets or insurance obligations to be less than such benefit obligations; (Div) no reportable event within the meaning of Section 4043(c) of ERISA has occurred, (E) all premiums each Foreign Benefit Plan required to the PBGC have been timely paid in full, (F) no liability (other than for premiums to the PBGC) under Title IV of ERISA be registered with a Governmental Authority has been registered with a Governmental Authority and has been maintained in good standing with or is expected to be incurred by Parent or any in accordance with the requirements of its ERISA Affiliatesthe applicable Governmental Authority, and as applicable; (Gv) the PBGC has not instituted proceedings to terminate any such Parent Title IV Plan andthere are no pending, or, to the knowledge Knowledge of Parentthe Company, no circumstances exist which could serve as a basis for the institution of such proceedings.
threatened Actions in connection with any Foreign Benefit Plan; and (vi) Except as set forth on Section 3.2(j)(vi) of the Parent Disclosure Letterthere has been no act or omission which has given or is reasonably likely to give rise to fines, neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby (either alone penalties, taxes or in conjunction with any other event) will (A) increase any benefits otherwise payable or trigger any other obligation related charges under any Parent applicable Legal Requirement. The Company has previously provided or made available to Buyer true and complete copies of all Foreign Benefit Plan, Plans documents and amendments thereto (B) result in any acceleration of the time of payment, funding or vesting including a written summary of any such benefits unwritten Foreign Benefit Plans) and related trust agreements or (C) result in any limitation on the right of Parent or any of its Subsidiaries to amend, merge, terminate or receive a reversion of assets from any Parent Benefit Plan or related trustother agreements.
(vii) No Parent Benefit Plan provides for the gross-up or reimbursement of Taxes under Section 409A or 4999 of the Code or otherwise.
Appears in 1 contract
Samples: Share Purchase Agreement (Allscripts Healthcare Solutions, Inc.)
