Benefit Plans. (a) Section 3.11(a) of the Company Disclosure Letter sets forth a true and complete list, as of the date hereof, of each “employee benefit plan” (within the meaning of section 3(3) of the Employee Retirement Income Security Act of 1974 (“ERISA”)), “multiemployer plan” (within the meaning of ERISA section 3(37)) and all stock purchase, stock option, phantom stock or other equity-based plan, severance, employment, collective bargaining, 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 or required in the future as a result of the transactions contemplated by this Agreement or otherwise), whether formal or informal, written or oral, legally binding or not, under which any current or former employee, director or consultant of the Company or its Subsidiaries (or any of their dependents) has any present or future right to compensation or benefits or the Company or its Subsidiaries has had or has any present or future liability or with respect to which it is otherwise bound (collectively, the “Company Plans”). With respect to each Company Plan, the Company has made available to Parent a true and complete copy thereof and, to the extent applicable: (i) any related trust agreement or other funding instrument, (ii) the most recent determination letter of the Internal Revenue Service (the “IRS”), if applicable, (iii) any summary plan description and other written communications (or a description of any oral communications) by the Company or its Subsidiaries to their employees concerning the extent of the benefits provided under a Company Plan, and (iv) for the two most recent years (A) the Form 5500 and attached schedules, (B) audited financial statements, (C) actuarial valuation reports and (D) attorney’s response to an auditor’s request for information. (b) No Company Plan is subject to Title IV of ERISA or Section 412 of the Code, no Company Plan is a multiemployer plan (within the meaning of Section 3(37) of ERISA), and neither the Company nor any member of its Controlled Group (defined as any organization which is a member of a controlled group of organizations within the meaning of Code Sections 414(b), (c), (m) or (o)) has any liability (direct or contingent) with respect to, and has never incurred any liability (director or contingent) with respect to, any employee benefit plan subject to Title IV of ERISA. No Company Plan provides health or other welfare benefits to former employees of the Company or its Subsidiaries other than health continuation coverage pursuant to COBRA. (c) With respect to the Company Plans, except to the extent that the inaccuracy of any of the representations set forth in this paragraph (c), individually or in the aggregate, has not been and would not reasonably be expected to be material to the Company and its Subsidiaries, taken as a whole: (i) each Company Plan has been established and administered in accordance with its terms and in compliance with the applicable provisions of applicable Law, including ERISA and the Code, and all contributions required to be made under the terms of any Company Plan have been timely made; (ii) each Company Plan intended to be qualified under Section 401(a) of the Code has received a favorable determination, advisory or opinion letter, as applicable, from the IRS that it is so qualified and nothing has occurred that would reasonably be expected to cause the loss of such qualified status of such Company Plan; (iii) there is no Action (including any investigation, audit or other administrative proceeding) 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 the Company, threatened, relating to the Company Plans, any fiduciaries thereof with respect to their duties to the Company Plans or the assets of any of the trusts under any of the 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; (iv) neither the Company nor its Subsidiaries nor any of their Affiliates has incurred any direct or indirect liability under ERISA or the Code in connection with the termination of, withdrawal from or failure to fund, any Company Plan or other retirement plan or arrangement, and no fact or event exists that would reasonably be expected to give rise to any such liability; and (v) the Company and its Subsidiaries do not maintain any Company Plan that is a “group health plan” (as such term is defined in Section 5000(b)(1) of the Code) that has not been administered and operated in all respects in compliance with the applicable requirements of Section 601 of ERISA and Section 4980B(b) of the Code, and the Company and its Subsidiaries are not subject to any liability, including additional contributions, fines, penalties or loss of Tax deductions, as a result of such administration and operation; and (d) None of the Company Plans provides for payment of a benefit, the increase of a benefit amount, the payment of a contingent benefit, the acceleration of a payment or the 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 hereby (either alone or in conjunction with any other event). None of the Company Plans or any other plan agreement or arrangement in effect immediately prior to the Closing could result separately or in the aggregate in connection with the transactions contemplated by this Agreement (either alone or in conjunction with any other event) in the payment of any “excess parachute payment” within the meaning of Section 280G of the Code. (e) Each Company Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A(d)(1) of the Code has complied in form and operation with the requirements of Section 409A of the Code. No current or former employee, director or other service provider is entitled to any gross-up, make-whole or other additional payment from the Company or any of its Subsidiaries in respect of any Tax (including Federal, state, local or foreign income, excise or other Taxes (including Taxes imposed under Section 409A and 4999 of the Code)) or interest or penalty related thereto.
Appears in 3 contracts
Samples: Merger Agreement (Paramount Gold Nevada Corp.), Merger Agreement (Coeur Mining, Inc.), Merger Agreement (Paramount Gold & Silver Corp.)
Benefit Plans. (a) Section 3.11(a2.12(a) of the Company Disclosure Letter sets forth contains a true and complete list, as of the date hereof, list of each “employee benefit plan” material Company Plan (within the meaning of section 3(3other than (i) of the Employee Retirement Income Security Act of 1974 (“ERISA”)), “multiemployer plan” (within the meaning of ERISA section 3(37)) and all stock purchase, stock option, phantom stock mandatory government or other equity-based plan, severance, employment, collective bargaining, change-in-control, fringe benefit, bonus, incentive, deferred compensation and all other employee benefit and compensation plans, agreements, programs, policies or other social security arrangements, whether or not subject to ERISA (including ii) any funding mechanism therefor now in effect or required in offer letter on the future as a result of the transactions contemplated by this Agreement or otherwise), whether formal or informal, written or oral, legally binding or not, under which any current or former employee, director or consultant of the Company or its Subsidiaries (or any of their dependents) has any present or future right to compensation or benefits or the Company or its Subsidiaries has had or has any present or future liability or with respect to which it is otherwise bound (collectively, the “Company Plans”). With respect to each Company Plan, the Company has Company’s standard form made available to Parent providing for at-will employment that may be terminated at any time with less than 30 days’ notice without cost, penalty, payment of severance or any further Liability to the Company and (iii) any grant or award notice in respect of awards of Company Equity Awards in the form authorized under the applicable Company Stock Plan or the applicable form of Restricted Share Purchase Agreement that, in each case, do not deviate in any material respect from the forms made available to Parent).
(b) The Company has provided or made available to Parent, with respect to each material Company Plan, (i) a true current, accurate and complete copy thereof andof each such Company Plan, to including all amendments thereto, or if such Company Plan is not in written form, a written summary of the extent applicable: material terms of such Company Plan, (iii) any related trust agreement or agreements, insurance contracts and other funding instrumentinstruments, (iiiii) the most recent determination letter letter, opinion or similar documentation of the Internal Revenue Service (the “IRS”), if applicableIRS or other applicable Tax authority, (iiiiv) any the most recent summary plan description and other written communications any material modifications thereto, (or a description of any oral communications) by the Company or its Subsidiaries to their employees concerning the extent of the benefits provided under a Company Plan, and (ivv) for the two most recent years recently completed year (A) the Annual Report (Form 5500 Series) and attached schedules, accompanying schedules and (B) audited the annual financial statementsreport, trustee report, audit report or actuarial report, (Cvi) actuarial valuation reports any related Tax ruling, request or confirmation, and any further correspondence related thereto, with any Tax authority in the past three years related thereto and (Dvii) attorney’s response all material, non-routine correspondence received from or provided to an auditor’s request for information.
(b) No any Governmental Entity relating to such Company Plan is subject to Title IV of ERISA or Section 412 of in the Code, no Company Plan is a multiemployer plan (within the meaning of Section 3(37) of ERISA), and neither the Company nor any member of its Controlled Group (defined as any organization which is a member of a controlled group of organizations within the meaning of Code Sections 414(b), (c), (m) or (o)) has any liability (direct or contingent) with respect to, and has never incurred any liability (director or contingent) with respect to, any employee benefit plan subject to Title IV of ERISA. No Company Plan provides health or other welfare benefits to former employees of the Company or its Subsidiaries other than health continuation coverage pursuant to COBRApast three years.
(c) With respect to the Company Plans, except to the extent Except for those matters that the inaccuracy of any of the representations set forth in this paragraph (c), individually or in the aggregate, has not been and would not reasonably be expected to be material to the Company and its Subsidiaries, taken as a wholeCompany:
(i) each Company Plan has been established maintained, operated, registered and administered in accordance compliance with its terms and in compliance with the applicable provisions of applicable Law, including ERISA and the Code, and all contributions required Code to be made under the terms of any Company Plan have been timely madeextent applicable thereto;
(ii) all contributions or other amounts payable by the Company or any of its Subsidiaries with respect to each Company Plan in respect of current or prior plan years have been paid or accrued in accordance with applicable accounting principles or, with respect to each Company Plan covering Service Providers located in the United States, generally applicable accounting principles (other than with respect to amounts not yet due);
(iii) each Company Plan if intended to be qualified “qualified” within the meaning of Section 401(a) of the Code, has received a favorable determination letter from the IRS or is entitled to rely upon a favorable opinion issued by the IRS, and there are no facts or circumstances likely to result in the loss of the qualification of such Company Plan under Section 401(a) of the Code Code;
(iv) none of the Company, its Subsidiaries or any ERISA Affiliate nor any predecessor of any such entity, trade or business, has received a favorable determinationnow or any time in the previous six years contributed to, advisory sponsored, or opinion lettermaintained (or has been required to contribute to, as applicablesponsor or maintain), from the IRS that it is so qualified and nothing has occurred that or would reasonably be expected to cause have, any Liability (contingent or otherwise) with respect to a “multiemployer plan” (within the loss meaning of such qualified status Section 4001(a) of such Company PlanERISA) or a plan that has two or more contributing sponsors at least two of whom are not under common control within the meaning of Section 4063 of ERISA;
(iiiv) none of the Company, any of its Subsidiaries or any ERISA Affiliate has now or at any time in the previous six years contributed to, sponsored or maintained (or has been required to contribute to, sponsor or maintain) a plan that is subject to Section 302 of Title IV of ERISA or Section 412 or 4971 of the Code;
(vi) no liability under Title IV of ERISA has been incurred, or is reasonably expected to be incurred by the Company or any of its Subsidiaries (including indirectly with respect to an ERISA Affiliate), in each case, that has not been satisfied in full, and no condition, event or circumstance exists that presents a risk to the Company, any of its Subsidiaries or, to the knowledge of the Company, any ERISA Affiliate of the Company or any of its Subsidiaries of incurring a liability thereunder;
(vii) none of the Company, any of its Subsidiaries or any Company Plan that is subject to ERISA, any trust created thereunder or any trustee or administrator thereof, has engaged in a nonexempt “prohibited transaction” (as such term is defined in Section 406 of ERISA and Section 4975 of the Code);
(viii) there is are no Action pending, or to the knowledge of the Company, threatened Actions (including any investigation, audit or other administrative proceeding) by the Department by, on behalf 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 the Company, threatened, relating to the Company Plans, any fiduciaries thereof with respect to their duties to the Company Plans or the assets of any of the trusts under against any of the Company Plans or any trusts related thereto, or against any fiduciary of any Company Plan (other than routine claims for benefitsbenefits in accordance with the terms of the Company Plans) nor are there any facts or circumstances that exist that could reasonably give rise to any such Actions;
(ivix) neither except as set forth on Section 2.12(c)(ix) of the Company nor its Subsidiaries nor Disclosure Letter, no Company Plan is maintained through a human resources and benefits outsourcing entity, professional employer organization or other similar vendor or provider, except to provide third-party administrative or recordkeeping services to a Company Plan sponsored by the Company or any of their Affiliates has incurred any direct or indirect liability under ERISA or the Code in connection with the termination of, withdrawal from or failure to fund, any its Subsidiaries;
(x) no Company Plan provides medical, life insurance or other welfare benefits with respect to Participants beyond their retirement plan or arrangementother termination of service, and no fact or event exists that would reasonably be expected to give rise to any such liabilityother than coverage mandated by applicable Law; and
(vxi) the Company and its Subsidiaries do not maintain any with respect to each Company Plan that is not subject exclusively to United States Law (a “group health plan” Non-U.S. Benefit Plan”): (as i) all employer and employee contributions to each Non-U.S. Benefit Plan required by applicable Law or by the terms of such term is defined Non-U.S. Benefit Plan or pursuant to any other contractual obligation (including contributions to all mandatory provident fund schemes) have been timely made in Section 5000(b)(1accordance with applicable Law; (ii) of from and after the Code) that has not been administered Acceptance Time, such funds, accruals or reserves under the Non-U.S. Benefit Plans shall be used exclusively to satisfy benefit obligations accrued under such Non-U.S. Benefit Plans or else shall remain or revert to Parent and operated its Affiliates in all respects in compliance accordance with the terms of such Non-U.S. Benefit Plan or applicable requirements of Section 601 of ERISA Law; (iii) each Non-U.S. Benefit Plan required to be registered has been registered and Section 4980B(bhas been maintained in good standing with applicable regulatory authorities; and (iv) of the Code, and the Company and its Subsidiaries are not no Non-U.S. Benefit Plan is subject to any liability, including additional contributions, fines, penalties or loss of Tax deductions, as a result of such administration and operation; andfunding deficit.
(d) None Except as set forth on Section 2.12(d) of the Company Plans provides for payment of a benefitDisclosure Letter, the increase of a benefit amount, the payment of a contingent benefit, the acceleration of a payment or the vesting of a benefit determined or occasioned, in whole or in part, by reason of the execution and delivery of this Agreement or the consummation of the transactions contemplated hereby (will not, either alone or in conjunction combination with any other event). None , (A) entitle any Participant to severance, change in control or other pay or benefits, (B) cause any payments or funding (through a grantor trust or otherwise) to become due or accelerate the time of payment or vesting, or increase the Company Plans amount of or otherwise enhance any other plan agreement compensation or arrangement benefit due to any Participant, (C) result in effect immediately prior to the Closing could any forgiveness of indebtedness of any Participant or (D) result separately or in the aggregate in connection with the transactions contemplated by this Agreement (either alone or in conjunction with any other event) in the payment of any “excess parachute payment” within the meaning of Section 280G of the CodeCode to any Person.
(e) Each Company Plan that is constitutes in any part a “nonqualified deferred compensation plan” within the meaning of Section 409A(d)(1) of the Code has complied in form and operation with the requirements of subject to Section 409A of the CodeCode has been operated and maintained in compliance in all material respects with Section 409A of the Code and the regulations and other administrative guidance promulgated thereunder. No current or former employee, director or other service provider Participant under any Company Plan is entitled to any gross-up, make-whole or other additional payment from the Company or any of its Subsidiaries in respect of any Tax (including Federal, state, local or foreign income, excise or other Taxes (including Taxes imposed under Section incurred pursuant to Sections 409A and or 4999 of the Code)) or interest or penalty related thereto.
Appears in 3 contracts
Samples: Transaction Agreement (VectivBio Holding AG), Transaction Agreement (Ironwood Pharmaceuticals Inc), Transaction Agreement (Ironwood Pharmaceuticals Inc)
Benefit Plans. (a) Section 3.11(a3.13(a) of the Company Disclosure Letter sets forth contains a true and complete listlist of each material Company Plan. For purposes of this Agreement, as of the date hereof, of “Company Plan” means each “employee benefit plan” (within the meaning of section Section 3(3) of the Employee Retirement Income Security Act of 1974 1974, as amended (“ERISA”)), “multiemployer plan” (within the meaning of ERISA section 3(37)) and all stock purchase, stock option, phantom stock or other equity-based plan, severance, employment, collective bargaining, change-in-control, fringe benefit, bonus, incentive, deferred compensation and all compensation, employee loan or other employee benefit and compensation plansplan, agreementsagreement, programsprogram, policies policy or other arrangementsarrangement, 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), whether formal or informal, written or oralunwritten, legally binding in each case (i) maintained by the Company or notany of its Subsidiaries for current or former directors, employees or consultants of the Company or (ii) under which (A) any current employee, director or consultant or former employee, director or consultant of the Company or any of its Subsidiaries (or any of their dependents) has any present or future right to compensation or benefits or and (B) the Company or any of its Subsidiaries has had or has any present or future liability or with respect obligation to which it is otherwise bound (collectively, the “Company Plans”)contribute. With respect to each material Company Plan, the Company has furnished or made available to Parent a true current, accurate and complete copy thereof thereof, including any amendments, and, to the extent applicable: (i) any related trust agreement or other funding instrument, (ii) the most recent determination determination, opinion or advisory letter of the Internal Revenue Service (the “IRS”), if applicable, (iii) any summary plan description and or other material written communications (or a description of any oral communications) by the Company or its Subsidiaries to their employees concerning the extent of the benefits provided under a Company Plan, Plan and (iv) for the two most recent years (A) the Form 5500 and attached schedules, (B) audited financial statements, and (C) actuarial valuation reports and (D) attorney’s response to an auditor’s request for informationreports.
(b) No Company Plan is subject to Title IV of ERISA or Except as disclosed in Section 412 of the Code, no Company Plan is a multiemployer plan (within the meaning of Section 3(373.13(b) of ERISA), and neither the Company nor any member of its Controlled Group (defined as any organization which is a member of a controlled group of organizations within the meaning of Code Sections 414(b), (c), (m) or (o)) has any liability (direct or contingent) with respect to, and has never incurred any liability (director or contingent) with respect to, any employee benefit plan subject to Title IV of ERISA. No Company Plan provides health or other welfare benefits to former employees of the Company or its Subsidiaries other than health continuation coverage pursuant to COBRA.
(c) With respect to the Company Plans, Disclosure Letter and except to the extent that the inaccuracy of any of the representations set forth in this paragraph (c)as, individually or in the aggregate, has not been had, and would not reasonably be expected to be material have, a Material Adverse Effect on the Company, with respect to the Company and its Subsidiaries, taken as a wholePlans:
(i1) each Company Plan has been established and administered in accordance with its terms and in compliance with the applicable provisions of ERISA, the Code and all other applicable LawLaws, including and in the six years preceding the date hereof no reportable event, as defined in Section 4043 of ERISA, no prohibited transaction, as described in Section 406 of ERISA or Section 4975 of the Code, or failure to satisfy the minimum funding standards, within the meaning of Section 302 of ERISA and 412 of the Code, has occurred with respect to any Company Plan, and all contributions required to be made under the terms of any Company Plan have been timely made;
(ii2) each Company Plan intended to be qualified under Section 401(a) of the Code (A) has received a favorable determination, advisory or and/or opinion letter, as applicable, from the IRS that it is so qualified qualified, (B) the trust maintained thereunder has been determined to be exempt from taxation under Section 501(a) of the Code and (C) to the Company’s knowledge, nothing has occurred since the date of such letter that would could reasonably be expected to cause the loss of such qualified status of such Company Plan;
(iii3) there is no Action (including any investigation, audit or other administrative proceeding) 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 knowledge of the Company, threatened, relating to the Company Plans, any fiduciaries thereof to which the Company could have an indemnification obligation with respect to their duties to the Company Plans or the assets of any of the trusts under any of the Company Plans (other than routine claims for benefits) nor nor, to the knowledge of the Company, are there facts or circumstances that exist that could reasonably be expect to give rise to any such Actions;
(iv4) no Company Plan is or, within the preceding six years, has been subject to Title IV of ERISA or subject to Section 412 of the Code and neither the Company nor its Subsidiaries nor any Person that is a member of their Affiliates a “controlled group of corporations” with, or is under “common control” with, or is a member of the same “affiliated service group” with the Company, in each case, as defined in Sections 414(b), (c), (m) or (o) of the Code, maintains or contributes to (or has incurred any direct in the past six years maintained or indirect liability under contributed to) a multiemployer plan as defined in Section 3(37) of ERISA or the Code in connection with the termination of, withdrawal from or failure to fund, any Company Plan or other retirement plan or arrangement, and no fact or event exists that would reasonably be expected to give rise to any such liability; anda Title IV Plan;
(v5) the Company and its Subsidiaries do are not maintain subject to any material liability, including additional contributions, fine, penalties or loss of Tax Deductions as a result of the administration or operation of any Company Plan that is a “group health plan” (as such term is defined in Section 5000(b)(1) of the Code);
(6) that has not been administered and operated in all respects in compliance with the applicable requirements of Section 601 of ERISA and Section 4980B(b) of the Code, and the no Company and its Subsidiaries are not subject to any liabilityPlan provides welfare benefits, including additional contributionsdeath or medical benefits (whether or not insured) beyond retirement or termination of service, fines, penalties or loss of Tax deductions, as a result of such administration and operation; andother than coverage mandated solely by applicable Law;
(d7) None none of the Company Plans provides for payment of an amount or provision of a benefit, the increase of a benefit amountpayment or benefit, the payment of a contingent amount or provision of a contingent benefit, or the acceleration of a payment the payment, funding or the vesting of a an amount or benefit determined or occasioned, in whole or in part, by reason of the execution of this Agreement or the consummation of the transactions contemplated hereby (either whether alone or in conjunction together with any other event). None of ; and
(8) no amounts payable under the Company Plans or any other plan agreement or arrangement in effect immediately prior will fail to the Closing could result separately or in the aggregate in connection with the transactions contemplated be deductible for federal income tax purposes by this Agreement (either alone or in conjunction with any other event) in the payment of any “excess parachute payment” within the meaning virtue of Section 280G of the CodeCode as a result of the occurrence of the transactions contemplated by this Agreement, either alone or in combination with another event.
(ec) The Company and its Subsidiaries have not entered into any employment or employment-related agreements (including change in control agreements and offer letters) to which a named individual is a party, other than those set forth on Section 3.13(a) of the Company Disclosure Letter.
(d) Each Company Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A(d)(1) 409A of the Code and related Treasury Department guidance has complied (i) been operated between January 1, 2005 and December 31, 2008, in form good faith compliance with Section 409A of the Code and operation Notice 2005-01 and (ii) since January 1, 2009 (or such later date permitted under applicable guidance), been operated in compliance, and is in documentary compliance, in all material respects, with the requirements of Section 409A of the Code.
(e) Neither the Company nor any Subsidiary has a binding commitment to create any additional material Company Plan, or any plan, agreement or arrangement that would be a material Company Plan if adopted, or to modify or terminate any existing material Company Plan, except as required by applicable Law.
(f) The ESOP is an “employee stock ownership plan” within the meaning of Section 4975(e)(7) of the Code. No current Neither the Company nor the ESOP has, within the three year period immediately preceding the date of this Agreement, received any inquiry or former employeenotice from the IRS or any other governmental agency the effect of which is to question the qualification or status of the ESOP or any transaction entered into by the ESOP or the Company (with respect to the ESOP). The ESOP and the Company have filed all reports, director returns or other service provider is entitled to any gross-up, make-whole or other additional payment from the Company or any of its Subsidiaries documents in respect of any Tax the ESOP which are required to be filed pursuant to the applicable provisions of the Code and ERISA and the regulations thereunder. All loans entered into by the ESOP (including Federal, state, local or foreign income, excise or other Taxes (including Taxes imposed the “ESOP Loans”) constitute “exempt loans” under Treasury Regulation Section 409A 54.4975-7(b)(1)(iii). The securities held by the ESOP constitute “employer securities” under ERISA Section 407(d)(1) and 4999 Section 409(l) of the Code and “qualifying employer securities” under ERISA Section 407(d)(5) and Section 4975(e)(8) of the Code)) or interest or penalty related thereto.
Appears in 3 contracts
Samples: Merger Agreement (Green Bancorp, Inc.), Merger Agreement (Green Bancorp, Inc.), Merger Agreement (SP Bancorp, Inc.)
Benefit Plans. (a) Section 3.11(a) of the The Company Disclosure Letter sets forth has provided to Parent a true and complete list, as of the date hereof, list of each material “employee benefit plan” (within the meaning of section Section 3(3) of the Employee Retirement Income Security Act of 1974 1974, as amended (“ERISA”)), “multiemployer planplans” (within the meaning of ERISA section Section 3(37)) ), and all material stock purchase, stock option, phantom stock or other equity-based plan, severance, employment, collective bargaining, 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 or required in the future as a result of the transactions contemplated by this Agreement or otherwise), whether formal or informal, written or oral, legally binding or notERISA, under which any current employee or former employee, director or consultant employee of the Company or its Subsidiaries (or any of their dependents) has any present or future right to compensation or benefits or the Company or its Subsidiaries has had or has any present liability (contingent or future liability or with respect otherwise). All such plans, agreements, programs, policies and arrangements are collectively referred to which it is otherwise bound (collectively, as the “Company Plans”). .” With respect to each Company Plan, the Company has furnished or made available to Parent a true current, accurate and complete copy thereof and, to the extent applicable: (i) any related trust agreement or other funding instrument, (ii) the most recent determination letter of the Internal Revenue Service (the “IRS”), if applicable, (iii) any summary plan description and other equivalent written communications (or a description of any oral communications) by the Company or its Subsidiaries to their employees concerning the extent of the benefits provided under a Company Plan, Plan and (iv) if applicable, for the two most recent years (A) the Form 5500 and attached schedules, (B) audited financial statements, (C) actuarial valuation reports and (D) attorney’s response to an auditor’s request for information.
(b) No Company Plan is subject to Title IV of ERISA or Section 412 of the Code, no Company Plan is a multiemployer plan (within the meaning of Section 3(37) of ERISA), and neither the Company nor any member of its Controlled Group (defined as any organization which is a member of a controlled group of organizations within the meaning of Code Sections 414(b), (c), (m) or (o)) has any liability (direct or contingent) with respect to, and has never incurred any liability (director or contingent) with respect to, any employee benefit plan subject to Title IV of ERISA. No Company Plan provides health or other welfare benefits to former employees of the Company or its Subsidiaries other than health continuation coverage pursuant to COBRA.
(c) With respect to the Company Plans, except to the extent that the inaccuracy of any of the representations set forth in this paragraph (c), individually or in the aggregate, has not been and would not reasonably be expected to be material to the Company and its Subsidiaries, taken as a whole:
(i) each Company Plan has has, in all material respects, been established and administered in accordance with its terms and in compliance with the applicable provisions of applicable Law, including ERISA and the Code, and no prohibited transaction, as described in Section 406 of ERISA or Section 4975 of the Code, or accumulated funding deficiency, as defined in Section 302 of ERISA or Section 412 of the Code, has occurred with respect to any Company Plan;
(ii) except as would not reasonably be expected to result in any material liability, all contributions required to be made under the terms of any Company Plan have been timely made;
(iiiii) each Company Plan intended to be qualified under Section 401(a) of the Code has received a favorable determination, advisory or and/or opinion letter, as applicable, from the IRS that it is so qualified and (or the deadline for obtaining such a letter has not expired as of the date of this Agreement) and, to the Company’s knowledge, nothing has occurred since the date of such letter that would reasonably be expected to cause the loss of such qualified status of such Company Plan;
(iiiiv) there no Company Plan is no Action (including any investigationsubject to Title IV of ERISA, audit Section 302 of ERISA or other administrative proceeding) 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 Section 412 of the Company, threatened, relating to the Company Plans, any fiduciaries thereof with respect to their duties to the Company Plans or the assets of any of the trusts under any of the Company Plans (other than routine claims for benefits) nor are there facts or circumstances that exist that could reasonably give rise to any such ActionsCode;
(ivv) neither the Company nor its Subsidiaries nor any of their Affiliates has incurred any direct or indirect liability under ERISA or the Code in connection with the termination of, withdrawal from or failure to fund, any no Company Plan or other retirement plan or arrangement, and no fact or event exists that would reasonably be expected to give rise to any such liability; andis a “multiemployer plan” (within the meaning of Section 3(37) of ERISA);
(vvi) the Company and its Subsidiaries do not maintain any Company Plan that is a “group health plan” (as such term is defined in Section 5000(b)(1) of the Code) that has not been administered and operated in all material respects in compliance with the applicable requirements of Section 601 of ERISA and Section 4980B(b) of the Code, and the Company and its Subsidiaries are not subject to any material liability, including additional material contributions, fines, penalties or loss of Tax deductionsdeduction, as a result of such administration and operation; and;
(dvii) None no Company Plan provides, or reflects or represents any liability of any of the Company Plans and its Subsidiaries to provide, post-termination or retiree life insurance, post-termination or retiree health benefits or other post-termination or retiree employee welfare benefits to any Person for any reason, except as may be required by COBRA or other applicable Law, and none of the Company, any Subsidiary or any entity, trade or business, whether or not incorporated, that together with the Company or any Subsidiary, would be deemed a “single employer” within the meaning of Section 4001(b) of ERISA (an “ERISA Affiliate”) has any material liability as a result of a failure to comply with the continuation coverage requirements of Section 601 et seq. of ERISA and Section 4980B of the Code;
(viii) no Company Plan provides for payment of a benefit, the increase of a benefit amount, the payment of a contingent benefit, benefit or the acceleration of a the payment or the 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 hereby (either alone or in conjunction with any other another event). None No amount or other entitlement that could be received (whether in cash or property or the vesting of the Company Plans or property) as a result of any other plan agreement or arrangement in effect immediately prior to the Closing could result separately or in the aggregate in connection with of the transactions contemplated by this Agreement (either alone or in conjunction with by any other event) in the payment of individuals under any Company Plan will be an “excess parachute payment,” within the meaning of as such term is defined in Section 280G 280G(b)(1) of the Code.. The Company has not taken any action with respect to 2012 annual incentive awards that would cause such awards to be nondeductible under Section 162(m) of the Code. The Company is not obligated to compensate any Person for excise taxes payable pursuant to Section 4999 of the Code;
(eix) Each each Company 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 complied been operated in form material compliance with Section 409A of the Code since January 1, 2005, based upon a good faith reasonable interpretation of (A) Section 409A of the Code and operation with (B) IRS Notice 2005-1 or any other applicable IRS guidance, in each case as modified by IRS Notice 2007-86 (clauses (A) and (B), together, the requirements “409A Authorities”). No Company Plan that would be a Nonqualified Deferred Compensation Plan subject to Section 409A of the Code but for the effective date provisions that are applicable to Section 409A of the Code. No current , as set forth in Section 885(d) of the American Jobs Creation Act of 2004, as amended (the “AJCA”), has been “materially modified” within the meaning of Section 885(d)(2)(B) of the AJCA after October 3, 2004, based upon a good faith reasonable interpretation of the AJCA and the 409A Authorities and has not been operated in material compliance with the 409A Authorities (except to the extent it would not reasonably be expected to result in a material liability); and
(x) there are no Actions, audits or former employeeinquiries pending, director or, to the knowledge of the Company, threatened (other than routine claims for benefits) against any, or other service provider is entitled with respect to, any Company Plan or fiduciary thereto or against the assets of any such Company Plan that would reasonably be expected to any gross-up, make-whole have a material adverse effect on the operations or other additional payment from business of the Company or any of and its Subsidiaries in respect of any Tax (including FederalSubsidiaries, state, local or foreign income, excise or other Taxes (including Taxes imposed under Section 409A and 4999 of the Code)) or interest or penalty related theretotaken as a whole.
Appears in 3 contracts
Samples: Merger Agreement (PNK Entertainment, Inc.), Merger Agreement (Pinnacle Entertainment Inc.), Merger Agreement (Ameristar Casinos Inc)
Benefit Plans. (a) Section 3.11(a3.12(a) of the Company Disclosure Letter sets forth contains a true and complete list, as of the date hereof, list of each Company Plan. For purposes of this Agreement, “Company Plan” means any “employee benefit plan” (within the meaning of section 3(3) of the Employee Retirement Income Security Act of 1974 1974, as amended (“ERISA”), whether or not subject to ERISA), “multiemployer planplans” (within the meaning of ERISA section 3(37)) ), and all stock purchase, stock option, phantom stock or other equity-based plan, severance, employment, collective bargaining, change-in-control, fringe benefit, bonus, incentive, deferred compensation compensation, supplemental retirement, health, life, or disability insurance, dependent care 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 or required in the future as a result of the transactions contemplated by this Agreement or otherwise)ERISA, whether formal or informal, written or oral, legally binding or not, under which any current or former employee, director or consultant of the Company or its Subsidiaries (or any of their dependents) has any present or future right to compensation or benefits or the Company or its Subsidiaries has had sponsors or maintains, is making contributions to or has any present or future liability or obligation (contingent or otherwise) or with respect to which it is otherwise bound (collectivelybound. The Company has delivered or made available to Parent a current, accurate and complete copy of each material Company Plan, or if such Company Plan is not in written form, a written summary of all of the “material terms of such Company Plans”)Plan. With respect to each material Company Plan, the Company has delivered or made available to Parent a true current, accurate and complete copy thereof andof, to the extent applicable: (i) any related trust agreement or other funding instrument, (ii) the most recent determination letter of the Internal Revenue Service (the “IRS”), if applicable, (iii) any summary plan description description, summary of material modifications, and other similar material written communications (or a written description of any material oral communications) by to the employees of the Company or its Subsidiaries to their employees concerning the extent of the benefits provided under a Company Plan, and (iv) for the two three most recent years (A) the Form 5500 and attached schedules, (B) audited financial statements, (C) actuarial valuation reports and (D) attorney’s response to an auditor’s request for information.
(b) No Company Plan is subject to Title IV of ERISA Neither the Company, its Subsidiaries or Section 412 of the Code, no Company Plan is a multiemployer plan (within the meaning of Section 3(37) of ERISA), and neither the Company nor any member of its their Controlled Group (defined as any organization which is a member of a controlled controlled, affiliated or otherwise related group of organizations entities within the meaning of Code Sections 414(b), (c), (m) or (o)) has ever sponsored, maintained, contributed to or been required to contribute to or incurred any liability (direct contingent or contingentotherwise) with respect to: (i) a “multiemployer plan” (within the meaning of ERISA section 3(37)), and has never incurred any liability (director or contingentii) with respect to, any an “employee pension benefit plan plan,” within the meaning of Section 3(2) of ERISA (“Pension Plan”) that is subject to Title IV of ERISA. No Company Plan provides health ERISA or other welfare benefits to former employees Section 412 of the Company Code, (iii) a Pension Plan which is a “multiple employer plan” as defined in Section 413 of the Code, or its Subsidiaries other than health continuation coverage pursuant to COBRA(iv) a “funded welfare plan” within the meaning of Section 419 of the Code.
(c) With respect to the Company Plans, except to the extent that the inaccuracy of any of the representations set forth in this paragraph (c), individually or in the aggregate, has not been and would not reasonably be expected to be material to the Company and its Subsidiaries, taken as a whole:
(i) each Company Plan has been established and administered in accordance complies with its terms in all material respects and complies in form and in compliance operation, in all material respects, with the applicable provisions of applicable Law, including ERISA and the Code, Code and all other applicable legal requirements;
(ii) all contributions required to be made under the terms of any Company Plan have been timely made;
(iiiii) each Company Plan intended to be qualified under Section 401(a) of the Code has received a favorable determination, advisory or and/or opinion letter, as applicable, from the IRS that it is so qualified and and, to the Knowledge of the Company, nothing has occurred since the date of such letter that would reasonably be expected to cause the loss of the sponsor’s ability to rely upon such letter, and, to the Knowledge of the Company, nothing has occurred that would reasonably be expected to result in the loss of the qualified status of such Company Plan;
(iiiiv) there is no Action (including any investigation, audit or other administrative proceeding) 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 the Company, threatened, relating to the Company Plans, any fiduciaries thereof with respect to their duties to the Company Plans or the assets of any of the trusts under any of the Company Plans (other than routine claims for benefits) nor nor, to the Knowledge of the Company, are there facts or circumstances that exist that could reasonably give rise to any such Actionsactions;
(ivv) neither none of the Company nor Company, its Subsidiaries nor or any member of their Affiliates Controlled Group has incurred any direct or indirect liability under ERISA or ERISA, the Code or other applicable Laws in connection with the termination of, withdrawal from or failure to fund, any Company Plan or other retirement plan or arrangement, and and, to the Knowledge of the Company, no fact or event exists that would reasonably be expected to give rise to any such liability; and;
(vvi) the Company and its Subsidiaries do not maintain any Company Plan that is a “group health plan” (as such term is defined in Section 5000(b)(1) of the Code) that has not been administered and operated in all material respects in compliance with the applicable requirements of Section 601 601, et. seq. of ERISA and Section 4980B(b) of the Code, and the Company and its Subsidiaries are not subject to any liability, including additional contributions, fines, penalties or loss of Tax deductions, deduction as a result of such administration and operation;
(vii) none of the Company Plans currently provides, or reflects or represents any material liability to provide post-termination or retiree welfare benefits to any person for any reason, except as may be required by Section 601, et. seq. of ERISA and Section 4980B(b) of the Code or other applicable similar law regarding health care coverage continuation (collectively “COBRA”), and none of the Company, its Subsidiaries or any members of their Controlled Group has any material liability to provide post-termination or retiree welfare benefits to any person or ever represented, promised or contracted to any employee or former employee of the Company (either individually or to Company employees as a group) or any other person that such employee(s) or other person would be provided with post-termination or retiree welfare benefits, except to the extent required by statute or except with respect to a contractual obligation to reimburse any premiums such person may pay in order to obtain health coverage under COBRA;
(viii) with respect to each Company Plan that is not subject exclusively to United States Law (a “Non-U.S. Benefit Plan” ): (i) all employer and employee contributions to each Non-U.S. Benefit Plan required by applicable Law or by the terms of such Non-U.S. Benefit Plan or pursuant to any other contractual obligation (including contributions to all mandatory provident fund schemes) have been timely made in accordance with applicable Law; (ii) from and after the Effective Time, such funds, accruals or reserves under the Non-U.S. Benefit Plans shall be used exclusively to satisfy benefit obligations accrued under such Non-U.S. Benefit Plans or else shall remain or revert to Parent and its Affiliates in accordance with the terms of such Non-U.S. Benefit Plan or applicable Law; and (iii) each Non-U.S. Benefit Plan required to be registered has been registered and has been maintained in good standing with applicable regulatory authorities; and
(dix) None of the Company Plans provides for payment of a benefit, the increase of a benefit amount, the payment of a contingent benefit, the acceleration of a payment or the vesting of a benefit determined or occasioned, in whole or in part, by reason of the execution and delivery of this Agreement or and the consummation of the transactions contemplated hereby (Merger will not, either alone or in conjunction combination with any other event). None , (i) entitle any current or former employee, officer, director or consultant of the Company Plans or any Subsidiary to severance pay, unemployment compensation or any other similar termination payment, or (ii) accelerate the time of payment or vesting, or increase the amount of or otherwise enhance any benefit due any such employee, officer, director or consultant.
(d) Neither the Company nor any Subsidiary is a party to any agreement, contract, arrangement or plan agreement or arrangement in effect immediately prior (including any Company Plan) that may reasonably be expected to the Closing could result result, separately or in the aggregate aggregate, in connection with the transactions contemplated by this Agreement (either alone or in conjunction combination with any other event) events), in the payment of any “excess parachute paymentpayments” within the meaning of Section 280G of the Code. There is no agreement, plan or other arrangement to which any of the Company or any Subsidiary is a party or by which any of them is otherwise bound to compensate any person in respect of taxes or other liabilities incurred with respect to Section 409A or 4999 of the Code.
(e) Each Company Plan that is constitutes in any part 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 complied been operated and maintained in form compliance with Section 409A of the Code and operation with the requirements regulations and other administrative guidance promulgated thereunder (the “409A Authorities”). No Company Plan that would be a Nonqualified Deferred Compensation Plan subject to Section 409A of the Code but for the effective date provisions that are applicable to Section 409A of the Code, as set forth in Section 885(d) of the American Jobs Creation Act of 2004, as amended (the “AJCA”), has been “materially modified” within the meaning of Section 885(d)(2)(B) of the AJCA after October 3, 2004, based upon a good faith reasonable interpretation of the AJCA and the 409A Authorities and has not been operated in compliance with the 409A Authorities. No current or former employee, director or other service provider Participant is entitled to any gross-up, make-whole or other additional payment from the Company or any of its Subsidiaries in respect of any Tax (including Federal, state, local or foreign income, excise or other Taxes (including Taxes imposed under Section 409A and 4999 of the Code)) or interest or penalty related thereto.
(f) For purposes of this Agreement, “Participant” shall mean current or former director, officer, employee, contractor or consultant of the Company or any of its Subsidiaries.
Appears in 2 contracts
Samples: Merger Agreement (Aruba Networks, Inc.), Merger Agreement (Hewlett Packard Co)
Benefit Plans. (a) Section 3.11(a) 3.16 of the Company Vyome Disclosure Letter sets forth a true and complete list, as of Schedule lists all material Vyome Plans. Each Vyome Plan that is intended to meet the date hereof, of each “employee benefit plan” (within the meaning of section 3(3) of the Employee Retirement Income Security Act of 1974 (“ERISA”)), “multiemployer plan” (within the meaning of ERISA section 3(37)) and all stock purchase, stock option, phantom stock or other equity-based plan, severance, employment, collective bargaining, 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 or required in the future as a result of the transactions contemplated by this Agreement or otherwise), whether formal or informal, written or oral, legally binding or not, under which any current or former employee, director or consultant of the Company or its Subsidiaries (or any of their dependents) has any present or future right to compensation or benefits or the Company or its Subsidiaries has had or has any present or future liability or with respect to which it is otherwise bound (collectively, the “Company Plans”). With respect to each Company Plan, the Company has made available to Parent a true and complete copy thereof and, to the extent applicable: (i) any related trust agreement or other funding instrument, (ii) the most recent determination letter of the Internal Revenue Service (the “IRS”), if applicable, (iii) any summary plan description and other written communications (or a description of any oral communications) by the Company or its Subsidiaries to their employees concerning the extent of the benefits provided under a Company Plan, and (iv) for the two most recent years (A) the Form 5500 and attached schedules, (B) audited financial statements, (C) actuarial valuation reports and (D) attorney’s response to an auditor’s request for information.
(b) No Company Plan is subject to Title IV of ERISA or Section 412 of the Code, no Company Plan is a multiemployer plan (within the meaning of Section 3(37) of ERISA), and neither the Company nor any member of its Controlled Group (defined as any organization which is a member of a controlled group of organizations within the meaning of Code Sections 414(b), (c), (m) or (o)) has any liability (direct or contingent) with respect to, and has never incurred any liability (director or contingent) with respect to, any employee benefit plan subject to Title IV of ERISA. No Company Plan provides health or other welfare benefits to former employees of the Company or its Subsidiaries other than health continuation coverage pursuant to COBRA.
(c) With respect to the Company Plans, except to the extent that the inaccuracy of any of the representations set forth in this paragraph (c), individually or in the aggregate, has not been and would not reasonably be expected to be material to the Company and its Subsidiaries, taken as a whole:
(i) each Company Plan has been established and administered in accordance with its terms and in compliance with the applicable provisions of applicable Law, including ERISA and the Code, and all contributions required to be made under the terms of any Company Plan have been timely made;
(ii) each Company Plan intended requirements to be qualified under Section 401(a) of the Code has received a favorable determination, advisory determination letter or is covered by a favorable opinion letter, as applicable, letter from the IRS Internal Revenue Service that it remains current to the effect that the form of such Vyome Plan is so qualified qualified, and nothing has occurred Vyome is not aware of any facts or circumstances that would reasonably be expected to cause jeopardize the loss qualification of such Vyome Plan. Each Vyome Plan complies in form and in operation in all material respects with the requirements of the Code, ERISA and other applicable Law; and Vyome has not become subject to any material liability by reason of (i) a failure to make any contribution to a Vyome Plan intended to be qualified status under Section 401(a) of such Company the Code within the time prescribed for the contribution under ERISA, or (ii) a breach of fiduciary duty or prohibited transaction under ERISA or any other applicable Law, in each case with respect to a Vyome Plan;.
(b) With respect to each material Vyome Plan, Vyome has made available true and complete copies of the following (as applicable) prior to the date hereof: (i) the plan document, including all amendments thereto; (ii) the summary plan description along with all summaries of material modifications thereto; (iii) there is no Action (including any investigation, audit all related trust instruments or other administrative proceedingfunding-related documents; (iv) by a copy of the Department most recent financial statements for the plan; (v) a copy of Laborall material correspondence with any Governmental Body relating to a Vyome Plan received or sent within the last two years and (vi) the most recent determination or opinion letter.
(c) Except as would not reasonably be expected to have, individually or in the Pension Benefit Guaranty Corporationaggregate, the IRS or any other Governmental Entity or by any plan participant or beneficiary pendinga Material Adverse Effect on Vyome, or with respect to the Knowledge of Vyome Plans, (i) all required contributions to, and premiums payable in respect of, such Vyome Plan have been made or, to the Companyextent not required to be made on or before the date hereof, have been properly accrued on Vyome’s financial statements in accordance with GAAP, and (ii) there are no actions, audits, suits or claims pending or, to Vyome’s Knowledge, threatened, relating to the Company Plans, any fiduciaries thereof with respect to their duties to the Company Plans or the assets of any of the trusts under any of the 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) No Vyome Plan is, and neither the Company nor its Subsidiaries Vyome nor any of their its ERISA Affiliates has incurred at any direct time in the past six years sponsored or indirect contributed to, or has or has had any liability under ERISA or the Code in connection obligation whether fixed or contingent, with the termination of, withdrawal from or failure respect to fund, any Company Plan or other retirement plan or arrangement, and no fact or event exists that would reasonably be expected to give rise to any such liability; and
(vi) the Company and its Subsidiaries do not maintain any Company Plan that is a “group health multiemployer plan” (as such term within the meaning of Section 3(37) of ERISA), (ii) a single employer plan or other pension plan that is defined in subject to Title IV of ERISA or Section 5000(b)(1302 of ERISA or Section 412 of the Code, (iii) a “multiple employer plan” (within the meaning of Section 413(c) of the Code), or (iv) that has not been administered and operated in all respects in compliance with a multiple employer welfare arrangement (within the applicable requirements meaning of Section 601 of ERISA and Section 4980B(b3(40) of the Code, and the Company and ERISA). Neither Vyome nor its Subsidiaries are not subject has any obligation to provide a current or former employee or other service provider (or any liabilityspouse or dependent thereof) any life insurance or medical or health benefits after his or her termination of employment with Vyome or any of its Subsidiaries, including additional contributionsother than as required under Part 6 of Subtitle B of Title I of ERISA, fines, penalties Section 4980B of the Code or loss any similar state Law and coverage through the end of Tax deductions, as a result the month of such administration and operation; andtermination of employment.
(de) None of the Company Plans provides for payment of a benefitExcept as otherwise contemplated by this Agreement, the increase of a benefit amount, the payment of a contingent benefit, the acceleration of a payment or the vesting of a benefit determined or occasioned, in whole or in part, by reason of neither the execution or delivery of this Agreement or Agreement, nor the consummation of the transactions contemplated hereby hereby, will, either individually or together with the occurrence of some other event (either alone including a termination of employment or service), (i) result in any payment (including severance, bonus or other similar payment) becoming due to any current or former director, employee or individual independent contractor, (ii) increase or otherwise enhance any benefits or compensation otherwise payable to any such individual, (iii) result in the acceleration of the time of payment or vesting of any benefits under any Vyome Plan, (iv) require Vyome or its Subsidiaries to set aside any assets to fund any benefits under a Vyome Plan or result in the forgiveness in whole or in conjunction with part of any other event). None of the Company Plans outstanding loans made by Vyome to any Person, or any other plan agreement or arrangement in effect immediately prior to the Closing could (v) result separately or in the aggregate in connection with the transactions contemplated by this Agreement (either alone or in conjunction with any other event) in the payment of any “excess parachute payment” within the meaning of Code Section 280G or in the imposition of the Code.
(e) Each Company Plan that is a “nonqualified deferred compensation plan” within the meaning of an excise Tax under Code Section 409A(d)(1) of the Code has complied in form and operation with the requirements of 4999 or Section 409A (or, in either case, any corresponding provision of the Codestate, local or foreign Tax law). No current or former employee, director or other service provider is entitled Vyome has no obligation to pay any gross-up, make-whole or other additional payment from the Company or any of its Subsidiaries up in respect of any Tax under Code Section 4999 or Section 409A (including Federal, or any corresponding provision of state, local or foreign income, excise or other Taxes (including Taxes imposed under Section 409A and 4999 of the CodeTax law)) or interest or penalty related thereto.
Appears in 2 contracts
Samples: Merger Agreement (ReShape Lifesciences Inc.), Merger Agreement (ReShape Lifesciences Inc.)
Benefit Plans. (a) Section 3.11(a) of the The Company Disclosure Letter sets forth has provided to Parent a true and complete list, as of the date hereof, list of each material “employee benefit plan” (within the meaning of section 3(3) of the Employee Retirement Income Security Act of 1974 1974, as amended (“ERISA”))) whether or not subject to ERISA, each “multiemployer plan” (within the meaning of ERISA section 3(37)) ), and all material stock purchase, stock option, phantom stock or other equity-based planbased, severance, employment, collective bargaining, 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 or required in the future as a result of the transactions contemplated by this Agreement or otherwise), whether formal or informal, written or oral, legally binding or not, under which any current employee or former employee, director or consultant employee of the Company or its Subsidiaries (or any of their dependents) has any present or future right to compensation or benefits or the Company or its Subsidiaries has had or has any present or future liability or with respect liability. All such plans, agreements, programs, policies and arrangements shall be collectively referred to which it is otherwise bound (collectively, as the “Company Plans”). .” With respect to each Company Plan, the Company has furnished or made available to Parent a true current, accurate and complete copy thereof (or a description of the material terms of any unwritten Company Plan), including any amendments thereto, and, to the extent applicable: (i) any related trust agreement or other funding instrument, (ii) the most recent determination or advisory letter of the Internal Revenue Service (the “IRS”), if applicable, (iii) any summary plan description description, summary of material modifications and other equivalent written communications (or a description of any oral communications) by the Company or its Subsidiaries to their employees concerning the extent of the benefits provided under a such Company Plan, and (iv) any material communications with Government Entities concerning such Company Plan during the three most recent years, and (v) if applicable, for the two most recent years (A) the Form 5500 and attached schedules, (B) audited financial statements, (C) actuarial valuation reports and (D) attorney’s response to an auditor’s request for information. Neither the Company nor its Subsidiaries have received any written notice or written demand with respect to any current or former employee informing the Company or such Subsidiary that it may be liable for an “employer shared responsibility payment” as contemplated by Section 4980H of the Code, the regulations issued thereunder, and the Patient Protection and Affordable Care Act of 2010, as amended, and all regulations issued thereunder and rulings issued with respect thereto (the “Affordable Care Act”).
(b) No Company Plan is subject to Title IV of ERISA or Section 412 of the Code, no Company Plan is a multiemployer plan (within the meaning of Section 3(37) of ERISA), and neither the Company nor any member of its Controlled Group (defined as any organization which is a member of a controlled group of organizations within the meaning of Code Sections 414(b), (c), (m) or (o)) has any liability (direct or contingent) with respect to, and has never incurred any liability (director or contingent) with respect to, any employee benefit plan subject to Title IV of ERISA. No Company Plan provides health or other welfare benefits to former employees of the Company or its Subsidiaries other than health continuation coverage pursuant to COBRA.
(c) With respect to the Company Plans, except to the extent that the inaccuracy of any of the representations set forth in this paragraph (c)Section 4.11 would not, individually or in the aggregate, has not been and would not reasonably be expected to be material to the Company and its Subsidiaries, taken as have a wholeMaterial Adverse Effect:
(i) each Company Plan complies with, and at all times during the past three years has been operated in compliance with, its terms and applicable Laws;
(ii) each Company Plan subject to ERISA has been established and administered in accordance with its terms and in compliance with the applicable provisions of applicable Law, including ERISA and the Code, and no prohibited transaction, as described in Section 406 of ERISA or Section 4975 of the Code, or accumulated funding deficiency, as defined in Section 302 of ERISA and 412 of the Code, has occurred with respect to any Company Plan, and all contributions required to be made under the terms of any Company Plan have been timely made;
(iiiii) each Company Plan intended to be qualified under Section 401(a) of the Code has received a currently effective favorable determination, advisory or and/or opinion letter, as applicable, from the IRS that it is so qualified and nothing has occurred since the date of such letter that would reasonably be expected to cause the loss of such qualified status of such Company Plan;
(iiiiv) there is no Action (including any investigation, audit or other administrative proceeding) by the Department of Labor, the Pension Benefit Guaranty CorporationCorporation (the “PBGC”), the IRS or any other Governmental Entity or by any plan participant or beneficiary pending, or to the Knowledge knowledge of the Company, threatened, relating to the Company Plans, any fiduciaries thereof with respect to their duties to the Company Plans or the assets of any of the trusts under any of the 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;
(iv) neither the Company nor its Subsidiaries nor any of their Affiliates has incurred any direct or indirect liability under ERISA or the Code in connection with the termination of, withdrawal from or failure to fund, any Company Plan or other retirement plan or arrangement, and no fact or event exists that would reasonably be expected to give rise to any such liability; andActions;
(v) no Company Plan is subject to Title IV of ERISA or subject to Section 412 of the Code;
(vi) no Company Plan is a “multiemployer plan” (within the meaning of Section 3(37) of ERISA;
(vii) the Company and its Subsidiaries do not maintain any Company Plan that is a “group health plan” (as such term is defined in Section 5000(b)(1) of the Code) that has not been administered and operated in all respects in compliance with the applicable requirements of Section 601 of ERISA and Section 4980B(b) 4980B of the Code, similar state Laws and the Affordable Care Act, and the Company and its Subsidiaries are not subject to any material liability, including additional contributions, fines, penalties or loss of Tax deductions, tax deduction as a result of such administration and operation; and
(dviii) None none of the Company Plans provides for payment of a benefit, the increase of a benefit amount, the payment of a contingent benefit, benefit or the acceleration of a the payment or the 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 Offer or Merger contemplated hereby.
(c) Neither the execution and delivery of this Agreement and any related documents nor the consummation of the Offer or Merger contemplated hereby (will, either alone or in conjunction combination with any other event). None of , (i) require the Company Plans or any other plan agreement Subsidiary to place in trust or arrangement otherwise set aside any amounts in effect immediately prior to the Closing could result separately or in the aggregate in connection with the transactions contemplated by this Agreement (either alone or in conjunction with any other event) in the payment respect of any Company Plan; or (ii) result in any payments or benefits for any current or former Company Employee under any Company Plan that would be considered “excess parachute paymentpayments” within the meaning of under Section 280G of the Code.
(d) None of the Company, any of its Subsidiaries or any entity within the same “controlled group” as the Company or any of its Subsidiaries within the meaning of Section 4001(a)(14) of ERISA has, at any time during the past six years, contributed or been obligated to contribute to (i) a multiemployer plan, as defined in Section 4001(a)(3) of ERISA, (ii) a multiple employer plan, as defined in Section 413(c) of the Code, (iii) a multiple employer welfare arrangement, as defined in Section 3(40) of ERISA, or (iv) a plan subject to Title IV of ERISA.
(e) No event has occurred, and no condition or circumstance exists, that could reasonably be expected to subject the Company, any Subsidiary of the Company or any Company Plan to any material penalties or excise taxes under Sections 4980D, 4980H, or 4980I of the Code or under any provision of the Affordable Care Act.
(f) Neither the Company nor any Subsidiary of the Company is required to provide any gross-up, make-whole or other additional payment with respect to taxes, interests or penalties imposed under any tax provisions, including Section 409A or Section 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 (a “Nonqualified Deferred Compensation Plan”) subject to Section 409A of the Code has complied been operated in form compliance with Section 409A of the Code since June 30, 2013, based upon a good faith, reasonable interpretation of (A) Section 409A of the Code and operation with (B) IRS Notice 2005-1 or any other applicable IRS guidance, in each case as modified by IRS Notice 2007-86 (clauses (A) and (B), together, the requirements “409A Authorities”). No Company Plan that would be a Nonqualified Deferred Compensation Plan subject to Section 409A of the Code but for the effective date provisions that are applicable to Section 409A of the Code. No current , as set forth in Section 885(d) of the American Jobs Creation Act of 2004, as amended (the “AJCA”), has been “materially modified” within the meaning of Section 885(d)(2)(B) of the AJCA after October 3, 2004, based upon a good faith reasonable interpretation of the AJCA and the 409A Authorities and has not been operated in compliance with the 409A Authorities.
(h) There has not been since June 30, 2013, and there is not pending or, to the knowledge of the Company, threatened any proceeding or former employee, director inquiry asserted or other service provider is entitled to any gross-up, make-whole or other additional payment from instituted against the Company or any Subsidiary by any Governmental Entity relating to the legal status or classification of its Subsidiaries in respect of an individual classified by the Company or any Tax Subsidiary as a non-employee (including Federalsuch as an independent contractor, statea leased employee, local a consultant or foreign income, excise or other Taxes (including Taxes imposed under Section 409A and 4999 of the Codespecial consultant)) or interest or penalty related thereto.
Appears in 2 contracts
Samples: Merger Agreement (Adept Technology Inc), Merger Agreement (Omron Corp /Fi)
Benefit Plans. (a) Section 3.11(a) of the Company Disclosure Letter Schedule 4.14 sets forth a true complete and complete listcorrect list of all "employee benefit plans", as of the date hereof, of each “employee benefit plan” (within the meaning of section defined in Section 3(3) of the Employee Retirement Income Security Act of 1974 (“ERISA”)), “multiemployer plan” (within the meaning of ERISA section 3(37)) and all plans, programs, policies, arrangements or agreement with respect to employment, termination, severance pay, vacation pay, company awards, salary continuation, disability, sick leave, retirement, deferred compensation, bonus or other incentive compensation, stock purchase, stock option, phantom stock option or other equity-based plancompensation, severancehospitalization, employmentmedical insurance, collective bargaininglife insurance, change-in-controleducational assistance, fringe benefit, bonus, incentive, deferred compensation and all arrangements or other employee benefit and compensation plans, agreements, programs, policies or other arrangements, 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), whether formal or informal, written or oral, legally binding or not, under which any current ) covering employees or former employee, director or consultant employees of the Company or its Subsidiaries (or any of their dependents) has any present or future right to compensation or benefits or the Company or its Subsidiaries has had or has any present or future liability Company, or with respect to which it is otherwise bound the Company has any obligation or liability (collectively"Benefit Plans").
(b) True, correct and complete copies of the “Company Plans”). With following documents, with respect to each Company Planof the Benefit Plans, the Company has made available have been provided to Parent a true and complete copy thereof and, to the extent applicablePurchaser: (i) any plans and related trust agreement or other funding instrumentdocuments, including all amendments thereto, (ii) the three most recent determination letter of the Internal Revenue Service annual reports (the “IRS”), if applicableForms 5500) and schedules thereto, (iii) any the most recent financial statements and actuarial valuations if any, (iv) the most recent IRS determination letter, (v) the most recent summary plan description and other written communications (or a description of any oral communications) by the Company or its Subsidiaries to their employees concerning the extent of the benefits provided under a Company Plandescriptions, and (iv) for the two most recent years (Avi) the Form 5500 premium expenses and attached schedules, (B) audited financial statements, (C) actuarial valuation reports and (D) attorney’s response to an auditor’s request claims experience for information.
(b) No Company each Benefit Plan is subject to Title IV of ERISA or Section 412 of the Code, no Company Plan is a multiemployer plan (within the meaning of Section 3(37) of ERISA), and neither the Company nor any member of its Controlled Group (defined as any organization which is a member of a controlled group of organizations within the meaning of Code Sections 414(b), (c), (m) or (o)) has any liability (direct or contingent) with respect to, and has never incurred any liability (director or contingent) with respect to, any employee welfare benefit plan subject for the period from January 1, 1996 to Title IV of ERISA. No Company Plan provides health or other welfare benefits to former employees the last day of the Company or its Subsidiaries other than health continuation coverage pursuant to COBRAmonth preceding the date hereof.
(c) With Each of the Benefit Plans intended to qualify under Section 401 of the Code has been so qualified since its inception and has received a favorable determination letter from the IRS as to such qualified status, and nothing has occurred with respect to the Company Plans, except to the extent that the inaccuracy operation of any such plan which could cause the loss of such qualification or the imposition of any material liability, penalty or tax under ERISA or the Code.
(d) Each of the representations set forth in this paragraph (c), individually or in the aggregate, has not been and would not reasonably be expected to be material to the Company and its Subsidiaries, taken as a whole:
(i) each Company Plan Benefit Plans has been established and administered in accordance with its terms and has been maintained in compliance material compliance, in form and operation, with the all applicable provisions of applicable Lawlaws, including including, without limitation, ERISA and the Code. Neither the Company nor, and all contributions required to be made under the terms of any Company Plan have been timely made;
(ii) each Company Plan intended to be qualified under Section 401(a) of the Code has received a favorable determination, advisory or opinion letter, as applicable, from the IRS that it is so qualified and nothing has occurred that would reasonably be expected to cause the loss of such qualified status of such Company Plan;
(iii) there is no Action (including any investigation, audit or other administrative proceeding) 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 the Company, threatened, relating to the Company Plans's knowledge, any fiduciaries thereof "party in interest" or "disqualified person" with respect to their duties to the Company Benefit Plans or the assets of any of the trusts under any of the 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;
(iv) neither the Company nor its Subsidiaries nor any of their Affiliates has incurred any direct or indirect liability under ERISA or the Code engaged in connection with the termination of, withdrawal from or failure to fund, any Company Plan or other retirement plan or arrangement, and no fact or event exists that would reasonably be expected to give rise to any such liability; and
(v) the Company and its Subsidiaries do not maintain any Company Plan that is a “group health plan” (as such term is defined in Section 5000(b)(1) of the Code) that has not been administered and operated in all respects in compliance with the applicable requirements of Section 601 of ERISA and Section 4980B(b) of the Code, and the Company and its Subsidiaries are not subject to any liability, including additional contributions, fines, penalties or loss of Tax deductions, as a result of such administration and operation; and
(d) None of the Company Plans provides for payment of a benefit, the increase of a benefit amount, the payment of a contingent benefit, the acceleration of a payment or the 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 hereby (either alone or in conjunction with any other event). None of the Company Plans or any other plan agreement or arrangement in effect immediately prior to the Closing could result separately or in the aggregate in connection with the transactions contemplated by this Agreement (either alone or in conjunction with any other event) in the payment of any “excess parachute payment” non-exempt prohibited transaction within the meaning of Section 280G of the Code.
(e) Each Company Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A(d)(1) 4975 of the Code has complied in form and operation with the requirements or Section 406 of Section 409A of the Code. No current or former employee, director or other service provider is entitled to any gross-up, make-whole or other additional payment from the Company or any of its Subsidiaries in respect of any Tax (including Federal, state, local or foreign income, excise or other Taxes (including Taxes imposed under Section 409A and 4999 of the Code)) or interest or penalty related theretoERISA.
Appears in 2 contracts
Samples: Merger Agreement (Alaris Medical Inc), Merger Agreement (Alaris Medical Systems Inc)
Benefit Plans. (a) Section 3.11(a) of the Company Disclosure Letter sets forth a true true, correct and complete list, as list of the date hereof, of each “employee benefit plan” (within the meaning of section 3(3) of the Employee Retirement Income Security Act of 1974 (“ERISA”)), “multiemployer plan” (within the meaning of ERISA section 3(37)) and all stock purchase, stock option, phantom stock or other equity-based plan, severance, employment, collective bargaining, 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 or required in the future as a result of the transactions contemplated by this Agreement or otherwise), whether formal or informal, written or oral, legally binding or not, under which any current or former employee, director or consultant of the Company or its Subsidiaries (or any of their dependents) has any present or future right to compensation or benefits or the Company or its Subsidiaries has had or has any present or future liability or with respect to which it is otherwise bound (collectively, the “material Company Plans”). With respect to each Company Plan, the The Company has made available to Parent a true true, correct and complete copy thereof and, to the extent applicable: copies of (i) any related trust agreement or other funding instrumentall material Company Plans that have been reduced to writing, together with all amendments thereto, (ii) written summaries of all material unwritten Company Plans, (iii) all related summary plan descriptions, (iv) all annual reports filed on IRS Form 5500, all plan financial statements and all actuarial valuation reports for the most recent determination letter of plan year for each material Company Plan, and (v) any material written or electronic communications within the last five years from or to the Internal Revenue Service (the “IRS”), if applicable, (iii) the Department of Labor or any summary plan description and other written communications (or a description of any oral communications) by the Company or its Subsidiaries Governmental Entity with respect to their employees concerning the extent of the benefits provided under a Company Plan, and Plan (iv) for the two most recent years (A) the Form 5500 and attached schedules, (B) audited financial statements, (C) actuarial valuation reports and (D) attorney’s response to an auditor’s request for informationincluding any voluntary correction submissions).
(b) No Company Plan is subject to Title IV of ERISA or Section 412 of the Code, no Company Plan is a multiemployer plan (within the meaning of Section 3(37) of ERISA), and neither the Company nor any member of its Controlled Group (defined as any organization which is a member of a controlled group of organizations within the meaning of Code Sections 414(b), (c), (m) or (o)) has any liability (direct or contingent) with respect to, and has never incurred any liability (director or contingent) with respect to, any employee benefit plan subject to Title IV of ERISA. No Company Plan provides health or other welfare benefits to former employees of the Company or its Subsidiaries other than health continuation coverage pursuant to COBRA.
(c) With respect to the Company Plans, except to the extent that the inaccuracy of any of the representations set forth in this paragraph (c), individually or in the aggregate, has not been and would not reasonably be expected to be material to the Company and its Subsidiaries, taken as a whole:
(i) each Each Company Plan has been established and administered in all material respects in accordance with its terms and in compliance with the applicable provisions of applicable LawERISA, including ERISA and the Code, and all contributions required to be made under other applicable Law, and no non-exempt prohibited transaction, as described in Section 406 of ERISA or Section 4975 of the terms of any Company Plan have been timely made;
(ii) each Code has occurred. Each Company Plan intended to be qualified under Section 401(a) of the Code has received a favorable determination, advisory or and/or opinion letter, as applicable, from the IRS that it is so qualified and nothing (or the deadline for obtaining such a letter has occurred that would reasonably be expected not expired as of the date of this Agreement). There is no plan or commitment, whether legally binding or not, to cause the loss of such qualified status of such create any material additional Company Plan or to materially modify any existing material Company Plan;.
(iiic) there There is no Action (including any investigation, audit or other administrative proceeding) 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 knowledge of the Company, threatened, relating to the Company Plans, any fiduciaries thereof with respect to their duties to the Company Plans or the assets of any of the trusts under any of the material Company Plans (other than routine claims for benefits) ), nor are has there facts or circumstances that exist that could reasonably give rise to been any such Actions;
(iv) neither the Company nor its Subsidiaries nor any of their Affiliates has incurred any direct or indirect liability under ERISA or the Code in connection with the termination ofAction since January 1, withdrawal from or failure to fund, any Company Plan or other retirement plan or arrangement, and no fact or event exists that would reasonably be expected to give rise to any such liability; and
(v) the Company and its Subsidiaries do not maintain any Company Plan that is a “group health plan” (as such term is defined in Section 5000(b)(1) of the Code) that has not been administered and operated in all respects in compliance with the applicable requirements of Section 601 of ERISA and Section 4980B(b) of the Code, and the Company and its Subsidiaries are not subject to any liability, including additional contributions, fines, penalties or loss of Tax deductions, as a result of such administration and operation; and2013.
(d) None of the Company Plans provides for payment Company, any of a benefitits Subsidiaries, the increase or any of a benefit amounttheir respective ERISA Affiliates has maintained, the payment contributed to or has had any obligation to contribute to, or has or has had any actual or potential liability with respect to, any plan subject to Title IV of a contingent benefitERISA, the acceleration of a payment or the vesting of a benefit determined or occasioned, in whole or in part, by reason any plan subject to Section 4.12 of the execution Code or any “multiemployer plan” (within the meaning of this Agreement or the consummation Section 3(37) of the transactions contemplated hereby ERISA) since January 1, 2009.
(either alone or in conjunction with any other event). None of e) Neither the Company Plans nor any of its Subsidiaries has made any payment, is obligated to make any payment, or is a party to any other Contract, arrangement or plan agreement or arrangement in effect immediately prior to the Closing could result separately or in the aggregate that would, in connection with the transactions contemplated by this Agreement (either Agreement, whether occurring alone or in conjunction connection with any other preceding, contemporaneous, or subsequent event) in the , obligate it to make any payment of any that would reasonably be expected to be treated as an “excess parachute payment” within the meaning of under Section 280G of the Code (without regard to Sections 280G(b)(4) and 280G(b)(5) of the Code).
(ef) All group health plans of the Company, any Subsidiary of the Company and any ERISA Affiliate comply in all material respects with the requirements of the Consolidated Omnibus Budget Reconciliation Act of 1985, Code Section 5000, the Health Insurance Portability and Accountability Act, the Patient Protection and Affordable Care Act, and any other comparable domestic or foreign Laws. No employee, officer, director or manager, or former employee, officer, director or manager (or beneficiary of any of the foregoing) of the Company or any of its Subsidiaries is entitled to receive any welfare benefits, including death or medical benefits (whether or not insured) beyond retirement or other termination of employment, other than as required by applicable Law or under insured disability benefit arrangements, and there have been no written or oral commitments inconsistent with the foregoing.
(g) No act or omission has occurred and no condition exists with respect to any Company Plan that would subject Parent, the Company, any Subsidiary of the Company, any ERISA Affiliate, or any plan participant to any material fine, penalty, Tax or liability of any kind imposed under ERISA, the Code or any other applicable Law.
(h) Each material Company Plan (other than employment agreements or the Executive Severance Agreements) is amendable and terminable unilaterally by the Company and any of its Subsidiaries that is a party thereto or covered thereby at any time without material liability or expense to the Company, any of its Subsidiaries or such Company Plan as a result thereof (other than for benefits accrued through the date of termination or amendment and reasonable administrative expenses related thereto) and no material Company Plan, plan documentation or Contract, summary plan description or other written communication distributed generally to employees by its terms prohibits the Company or any of its Subsidiaries from amending or terminating any such Company Plan, or in any way limits such action.
(i) Except for the agreements set forth in Section 3.11(i) of the Company Disclosure Letter (collectively, the “Executive Severance Agreements”) or as required by applicable Law, no material Company Plan or other material Contract, plan or arrangement covering any one or more individuals contains any provision that, in connection with any of the transactions contemplated by this Agreement or upon related, concurrent or subsequent employment termination, or in combination with any other event, would (i) increase, accelerate or vest any compensation or benefit, (ii) require severance, termination or retention payments, (iii) provide any term of employment or compensation guaranty, (iv) promise or provide any Tax gross ups or indemnification, whether under Sections 280G or 409A of the Code or otherwise, or (v) measure any values of benefits on the basis of any of the transactions contemplated hereby. No stockholder, employee, officer or director of the Company has been promised or paid any bonus or incentive compensation related to the consummation of the transactions contemplated hereby.
(j) Each Company Plan that is a “nonqualified deferred compensation plan” within the meaning of (as defined in Code Section 409A(d)(1)) of the is, and since January 1, 2005 has been, in compliance in all material respects with Code has complied in form and operation with the requirements of Section 409A of the Code. No current or former employee, director or other service provider is entitled to any gross-up, make-whole or other additional payment from the Company or any of its Subsidiaries in respect of any Tax (including Federal, state, local or foreign income, excise or other Taxes (including Taxes imposed under Section 409A and 4999 is, and since January 1, 2009 has been, in documentary compliance. No Company SAR being assumed pursuant to Section 2.2(b) has a measurement price that has been less than the fair market value of the Codeunderlying stock as of the date such right was granted or 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 right.
(k) With respect to each material Company Plan that is subject to the Laws of any jurisdiction outside of the United States (a “Foreign Plan”), the Foreign Plan (i) or interest or penalty related theretosince January 1, 2013 has been maintained in all material respects in accordance with its terms and with all applicable Laws, (ii) if intended to qualify for special Tax treatment, meets all requirements for such treatment, (iii) with respect to each material Foreign Plan, such Foreign Plan is fully funded, and (iv) if required to be registered, has been registered with the appropriate Governmental Entities and has been maintained in good standing with the appropriate Governmental Entities.
Appears in 2 contracts
Samples: Merger Agreement (Newport Corp), Merger Agreement (MKS Instruments Inc)
Benefit Plans. (a) Section 3.11(a) 5.16 of the Company Envoy Disclosure Letter sets forth a true and complete list, as of the date hereof, name of each “employee benefit plan” Envoy Plan (within the meaning as defined below) and of section 3(3) each bonus, deferred compensation (together with a list of the Employee Retirement Income Security Act of 1974 (“ERISA”)participants therein), “multiemployer plan” incentive compensation, profit sharing, salary continuation (within the meaning together with a list of ERISA section 3(37participants therein)) and all , employee benefit, fringe benefit, stock purchase, stock option, phantom stock or other equity-based planemployment, severance, employmenttermination, collective bargaininggolden parachute, change-in-control, fringe benefit, bonus, incentive, deferred compensation consulting or supplemental retirement plan or agreement relating to Envoy 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 or required in the future as a result of the transactions contemplated by this Agreement or otherwise), whether formal or informal, written or oral, legally binding or not, under which any current or former employee, director or consultant of the Company or its Subsidiaries (or any of to their dependents) has any present employees or future right to compensation or benefits or the Company or its Subsidiaries has had or has any present or future liability or with respect to which it is otherwise bound independent contractors (collectively, the “Company "Benefit Plans”"), true copies of which have heretofore been made available to Healtheon/WebMD. With Envoy has also delivered to Healtheon/WebMD true, complete and correct copies of (1) each Benefit Plan (or, in the case of any unwritten Benefit Plans, descriptions thereof), (2) the two most recent annual reports on Form 5500 (including all schedules and attachments thereto) filed with the IRS with respect to each Company Plan, the Company has made available to Parent a true and complete copy thereof and, to the extent applicable: Benefit Plan (i) if any related trust agreement or other funding instrumentsuch report was required by applicable Law), (ii3) the most recent determination letter of summary plan description (or similar document) for each Benefit Plan for which such a summary plan description is required by applicable Law or was otherwise provided to plan participants or beneficiaries and (4) each trust agreement and insurance or annuity contract or other funding or financing arrangement relating to any Benefit Plan. Each Envoy Plan and Benefit Plan has been administered in all Material respects in accordance with its terms and complies in all Material respects with ERISA, the Internal Revenue Service (Code and all other applicable Laws. All contributions to, and payments from, the “IRS”)Benefit Plans that may have been required to be made in accordance with the terms of the Benefit Plans, if any applicable collective bargaining agreement and, when applicable, (iii) any summary plan description and other written communications (or a description of any oral communications) by the Company or its Subsidiaries to their employees concerning the extent of the benefits provided under a Company Plan, and (iv) for the two most recent years (A) the Form 5500 and attached schedules, (B) audited financial statements, (C) actuarial valuation reports and (D) attorney’s response to an auditor’s request for information.
(b) No Company Plan is subject to Title IV Section 302 of ERISA or Section 412 of the Internal Revenue Code, no Company Plan is a multiemployer plan (within the meaning of Section 3(37) of ERISA), and neither the Company nor any member of its Controlled Group (defined as any organization which is a member of a controlled group of organizations within the meaning of Code Sections 414(b), (c), (m) or (o)) has any liability (direct or contingent) with respect to, and has never incurred any liability (director or contingent) with respect to, any employee benefit plan subject to Title IV of ERISA. No Company Plan provides health or other welfare benefits to former employees of the Company or its Subsidiaries other than health continuation coverage pursuant to COBRA.
(c) With respect to the Company Plans, except to the extent that the inaccuracy of any of the representations set forth in this paragraph (c), individually or in the aggregate, has not been and would not reasonably be expected to be material to the Company and its Subsidiaries, taken as a whole:
(i) each Company Plan has been established and administered in accordance with its terms and in compliance with the applicable provisions of applicable Law, including ERISA and the Code, and all contributions required to be made under the terms of any Company Plan have been timely made;
(ii) each Company Plan intended . All such contributions to, and payments from, the Benefit Plans, except those payments to be made from a trust qualified under Section 401(a) of the Code has received a favorable determinationInternal Revenue Code, advisory or opinion letterfor any period ending before the Effective Time that are not yet, as applicablebut will be, from required to be made, will be properly accrued and reflected in the IRS that it is so qualified and nothing balance sheet included in the Envoy Financial Statements. No "reportable event" (within the meaning of Section 4043 of ERISA) has occurred that would reasonably be expected to cause the loss of such qualified status of such Company Plan;
(iii) there is no Action (including any investigation, audit or other administrative proceeding) 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 the Company, threatened, relating to the Company Plans, any fiduciaries thereof with respect to their duties to any Envoy Plan for which the Company Plans or the assets of any of the trusts under any of the Company Plans 30-day notice requirement has not been waived (other than routine claims for benefits) nor are there facts or circumstances that exist that could reasonably give rise with respect to any such Actions;
(iv) neither the Company nor its Subsidiaries nor any of their Affiliates has incurred any direct or indirect liability under ERISA or the Code in connection with the termination of, withdrawal from or failure to fund, any Company Plan or other retirement plan or arrangement, and no fact or event exists that would reasonably be expected to give rise to any such liability; and
(v) the Company and its Subsidiaries do not maintain any Company Plan that is a “group health plan” (as such term is defined in Section 5000(b)(1) of the Code) that has not been administered and operated in all respects in compliance with the applicable requirements of Section 601 of ERISA and Section 4980B(b) of the Code, and the Company and its Subsidiaries are not subject to any liability, including additional contributions, fines, penalties or loss of Tax deductions, as a result of such administration and operation; and
(d) None of the Company Plans provides for payment of a benefit, the increase of a benefit amount, the payment of a contingent benefit, the acceleration of a payment or the 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 hereby (either alone or in conjunction with any other event). None of the Company Plans or any other plan agreement or arrangement in effect immediately prior to the Closing could result separately or in the aggregate in connection with the transactions contemplated by this Agreement (either alone or in conjunction with any other event) in the payment of any “excess parachute payment” within the meaning of Section 280G of the Code.
(e) Each Company Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A(d)(1) of the Code has complied in form and operation with the requirements of Section 409A of the Code. No current or former employee, director or other service provider is entitled to any gross-up, make-whole or other additional payment from the Company or Agreement); neither Envoy nor any of its Subsidiaries in respect of ERISA Affiliates has withdrawn from any Tax (including Federal, state, local or foreign income, excise or other Taxes (including Taxes imposed Envoy Plan under Section 409A 4063 of ERISA or Envoy Multiemployer Plan (as defined below) under Section 4203 or 4205 of ERISA or has taken, or is currently considering taking, any action to do so; and 4999 of the Code)) no action has been taken, or interest or penalty related thereto.is currently being considered, to
Appears in 2 contracts
Samples: Merger Agreement (Quintiles Transnational Corp), Merger Agreement (Healtheon Webmd Corp)
Benefit Plans. (a) Section 3.11(a3.13(a) of the Company Disclosure Letter sets forth contains a true correct and complete list, as of the date hereof, of list of: (i) each material “employee benefit plan” (within the meaning of section Section 3(3) of the Employee Retirement Income Security Act of 1974 1974, as amended (“ERISA”)), including multiemployer plans within the meaning of Section 3(37) of ERISA, whether oral or written, in each case under which any past or present director, executive officer or employee of the Company or any of its Subsidiaries has any present or future right to benefits, or under which the Company or any of its Subsidiaries have any liability or obligation, contingent or otherwise; and (ii) each other severance, retention or change-of-control Contract, whether formal or informal, in each case under which any past or present director or executive officer, or Person with the title of Division President or higher, of the Company has any present or future right to benefits, or under which the Company or any of its Subsidiaries have any liability or obligation, contingent or otherwise to any such director, officer or employee. No Company Benefit Plan is a “multiemployer plan” (within the meaning of ERISA section 3(37)Section 4001(a)(3) and all stock purchase, stock option, phantom stock of ERISA) (a “Multiemployer Plan”) or other equity-based plan, severance, employment, collective bargaining, change-in-control, fringe benefit, bonus, incentive, deferred compensation and all other employee benefit and compensation plans, agreements, programs, policies a plan that has two or other arrangements, whether or more contributing sponsors at least two of whom are not subject to ERISA under common control (including any funding mechanism therefor now in effect or required in within the future as meaning of Section 4063 of ERISA) (a result of the transactions contemplated by this Agreement or otherwise), whether formal or informal, written or oral, legally binding or not, under which any current or former employee, director or consultant of the Company or its Subsidiaries (or any of their dependents) has any present or future right to compensation or benefits or the Company or its Subsidiaries has had or has any present or future liability or with respect to which it is otherwise bound (collectively, the “Company PlansMultiple Employer Plan”). No entity is a member of the Company’s “controlled group” (within the meaning of Section 414 of the Code) other than the Company and its Subsidiaries.
(b) With respect to each Company Benefit Plan, if applicable, the Company has made available furnished to Parent a true correct and complete copy thereof and, to the extent applicable: copies of (i) any all plan texts and agreements and related trust agreement agreements (or other funding instrument, vehicles); (ii) the most recent summary plan descriptions and material employee communications (including a description of any material oral communications) concerning the extent of the benefits provided under a Company Benefit Plan; (iii) the most recent annual report (including all schedules); (iv) the most recent annual audited financial statements; (v) if the plan is intended to qualify under Section 401(a) of the Code, the most recent determination letter of received from the Internal Revenue Service (the “IRS”); and (vi) all material communications with any Governmental Entity given or received since January 1, if applicable2007. Except as set forth in Section 3.13(b) of the Company Disclosure Letter, there is no present intention that any Company Benefit Plan be materially amended, suspended or terminated, or otherwise modified to adversely change benefits (or the level thereof) under any Company Benefit Plan at any time within the twelve months immediately following the date of this Agreement other than as required by applicable Law or as disclosed in the Company SEC Documents.
(c) Except as set forth in Section 3.13(c) of the Company Disclosure Letter, since January 1, 2007, there has not been any (i) amendment or change in interpretation relating to any Company Benefit Plan which would materially increase the cost of such Company Benefit Plan, (ii) grant of any severance or termination pay to any present or former director or executive officer of the Company or any of its Subsidiaries who earned at termination in excess of $100,000 per annum (as measured by annual base salary and annual target bonus), (iii) any summary plan description and loan or advance of money or other written communications (or a description of any oral communications) property by the Company to any of its present or its Subsidiaries to their employees concerning the extent of the benefits provided under a Company Planformer directors or executive officers, and or (iv) for establishment, adoption, entrance into, or termination of any Company Benefit Plan (other than as may be required by the two most recent years (A) terms of an existing Company Benefit Plan, or as may be required by applicable Law or in order to qualify under Sections 401 and 501 of the Form 5500 and attached schedules, (B) audited financial statements, (C) actuarial valuation reports and (D) attorney’s response to an auditor’s request for informationCode).
(bd) No With respect to each Company Benefit Plan that is subject to Title IV or Section 302 of ERISA or Section 412 or 4971 of the Code: (i) there does not exist any accumulated funding deficiency within the meaning of Section 412 of the Code or Section 302 of ERISA, whether or not waived; (ii) 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, and the consummation of the transactions contemplated by this Agreement will not result in the occurrence of any such reportable event; (iii) no liability (other than for premiums to the Pension Benefit Guaranty Corporation (the “PBGC”)) under Title IV of ERISA has been incurred by the Company or any of its Subsidiaries; (iv) the PBGC has not instituted proceedings to terminate any such plan or made any inquiry which would reasonably be expected to lead to termination of any such plan, and, to the Knowledge of the Company, no condition exists that presents a material risk that such proceedings will be instituted or which would constitute grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any such plan; and (v) the funded status of such Company Benefit Plan as reflected in the Company SEC Documents is accurate in all material respects and such Company SEC Documents fairly present, in all material respects, the funded status of each such plan. Neither the Company nor any of its Subsidiaries has, at any time during the last six years, contributed to or been obligated to contribute to any Multiemployer Plan or Multiple Employer Plan other than a multiemployer plan listed on Section 3.13(a) of the Company Disclosure Letter. Neither the Company nor any of its Subsidiaries has incurred any liability to a Multiemployer Plan as a result of a complete or partial withdrawal from such Multiemployer Plan (as those terms are defined in Part I of Subtitle E of Title IV of ERISA) (a “Withdrawal Liability”) that has not been satisfied in full.
(e) Except as set forth in Section 3.13(e) of the Company Disclosure Letter, each Company Benefit Plan which is intended to qualify under Section 401(a) of the Code has been issued a favorable determination letter by the IRS with respect to such qualification and no event has occurred since the date of such qualification that would reasonably be expected to materially and adversely affect such qualification. Each Company Benefit Plan has been established and administered in all material respects accordance with its terms, and in compliance in all material respects with the applicable provisions of ERISA, the Code and other applicable Laws. No event has occurred and no condition exists that would reasonably be expected to, subject the Company by reason of its affiliation with any current or former member of its “controlled group” (within the meaning of Section 3(37414 of the Code) to any (i) Tax, penalty, fine, (ii) Lien (other than a Permitted Lien) or (iii) other material Liability imposed by ERISA, the Code or other applicable Laws.
(f) There are no Company Benefit Plans under which welfare benefits are provided to past or present employees of the Company and its Subsidiaries beyond their retirement or other termination of service, other than coverage mandated by the Consolidated Omnibus Budget Recommendation Act of 1985 (“COBRA”), Section 4980B of the Code, Title I of ERISA or any similar state group health plan continuation Laws, except as would not, individually or in the aggregate, have or reasonably be expected to have a Company Material Adverse Effect.
(g) Neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby will (either alone or in combination with another event) (i) result in any payment becoming due, or increase the amount of any compensation or benefits due, to any current or former employee of the Company and its Subsidiaries or with respect to any Company Benefit Plan; (ii) increase any benefits otherwise payable under any Company Benefit Plan; (iii) result in the acceleration of the time of payment or vesting of any such compensation or benefits; (iv) result in a non-exempt “prohibited transaction” within the meaning of Section 406 of ERISA or section 4975 of the Code; (v) limit or restrict the right of the Company to merge, amend or terminate any of the Company Benefit Plans; or (vi) except as set forth in Section 3.13(g) of the Company Disclosure Letter, result in the payment of any amount that would, individually or in combination with any other such payment, reasonably be expected to constitute an “excess parachute payment,” as defined in Section 280G(b)(1) of the Code.
(h) Except as set forth in Section 3.13(h) of the Company Disclosure Letter, neither the Company nor any of its Subsidiaries or any Company Benefit Plan, nor to the Knowledge 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), and neither the Company nor has engaged in any member of its Controlled Group non-exempt prohibited transaction (defined as any organization which is a member of a controlled group of organizations within the meaning of Section 4975 of the Code Sections 414(b), (c), (m) or (o)) has any liability (direct or contingent) with respect to, and has never incurred any liability (director or contingent) with respect to, any employee benefit plan subject to Title IV Section 406 of ERISA. No Company Plan provides health or other welfare benefits to former employees of the Company or its Subsidiaries other than health continuation coverage pursuant to COBRA.
(c) With respect to the Company Plans, except to the extent that the inaccuracy of any of the representations set forth in this paragraph (c)which, individually or in the aggregate, has not been and would not reasonably be expected to be material to the Company and its Subsidiaries, taken as a whole:
(i) each Company Plan has been established and administered in accordance with its terms and in compliance with the applicable provisions of applicable Law, including ERISA and the Code, and all contributions required to be made under the terms of any Company Plan have been timely made;
(ii) each Company Plan intended to be qualified under Section 401(a) of the Code has received a favorable determination, advisory resulted or opinion letter, as applicable, from the IRS that it is so qualified and nothing has occurred that would reasonably be expected to cause result in any material liability to the loss Company or any of such qualified status its Subsidiaries. Except as set forth in Section 3.13(h) of such the Company Disclosure Letter, with respect to any Company Benefit Plan;
, (iiii) there is no Action material Legal Actions (including any administrative investigation, audit or other administrative proceeding) proceeding by the Department of LaborLabor or the Internal Revenue Service other than routine claims for benefits in the ordinary course) are pending or, 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 the Company, threatened, relating and (ii) to the Company Plans, any fiduciaries thereof with respect to their duties to the Company Plans or the assets of any Knowledge of the trusts under any of the Company Plans (other than routine claims for benefits) nor are there facts Company, no events or circumstances that conditions have occurred or exist that could reasonably give rise to any such Actions;
(iv) neither the Company nor its Subsidiaries nor any of their Affiliates has incurred any direct or indirect liability under ERISA or the Code in connection with the termination of, withdrawal from or failure to fund, any Company Plan or other retirement plan or arrangement, and no fact or event exists that would reasonably be expected to give rise to any such liability; and
(v) the Company and its Subsidiaries do not maintain any Company Plan that is a “group health plan” (as such term is defined in Section 5000(b)(1) of the Code) that has not been administered and operated in all respects in compliance with the applicable requirements of Section 601 of ERISA and Section 4980B(b) of the Code, and the Company and its Subsidiaries are not subject to any liability, including additional contributions, fines, penalties or loss of Tax deductions, as a result of such administration and operation; and
(d) None of the Company Plans provides for payment of a benefit, the increase of a benefit amount, the payment of a contingent benefit, the acceleration of a payment or the 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 hereby (either alone or in conjunction with any other event). None of the Company Plans or any other plan agreement or arrangement in effect immediately prior to the Closing could result separately or in the aggregate in connection with the transactions contemplated by this Agreement (either alone or in conjunction with any other event) in the payment of any “excess parachute payment” within the meaning of Section 280G of the Codematerial Legal Actions.
(ei) All Company Benefit Plans subject to the laws of any jurisdiction outside of the United States (i) have been maintained in all material respects in accordance with all applicable requirements, (ii) if they are intended to qualify for special tax treatment, meet the qualification requirements for such treatment in all material respects, 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.
(j) Each Company Plan that is a “nonqualified deferred compensation plan” within the meaning of (as defined in Section 409A(d)(1) of the Code Code) of the Company has complied been operated since January 1, 2005 in form and operation good faith compliance with the requirements of Section 409A of the Code. No current or former employee, director or Code and the Treasury Regulations and other service provider is entitled to any gross-up, make-whole or other additional payment from the Company or any of its Subsidiaries in respect of any Tax (including Federal, state, local or foreign income, excise or other Taxes (including Taxes imposed under Section 409A and 4999 of the Code)) or interest or penalty related theretoguidance issued thereunder.
Appears in 2 contracts
Samples: Merger Agreement (Jarden Corp), Merger Agreement (K2 Inc)
Benefit Plans. (a) Section 3.11(a) of the Company Disclosure Letter Schedule sets forth a true and complete list, as of the date hereof, list of each Company Benefit Plan. A “Company Benefit Plan” is any “employee benefit plan,” (within the meaning of section as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974 1974, as amended (“ERISA”)), “any multiemployer plan” (plan within the meaning of ERISA section Section 3(37)) and all each stock purchase, stock option, phantom stock or other equity-based plan, severance, employment, collective bargaining, change-in-control, fringe benefit, collective bargaining, bonus, incentive, incentive or deferred compensation and all other employee benefit and compensation plansplan, agreementsagreement, programsprogram, policies policy or other arrangementsarrangement, whether qualified or nonqualified, written or unwritten, or subject to ERISA (all the foregoing being herein called “Benefit Plans”)
(i) maintained, entered into or contributed to by the Company, any of its Subsidiaries, or any trade or business, whether or not subject to incorporated, that together with the Company would be deemed a “single employer” within the meaning of section 4001(b) of 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), whether formal or informal, written or oral, legally binding or not, “Company ERISA Affiliate”) under which any current present or former employee, director director, independent contractor or consultant of the Company or any of its Subsidiaries (or any of their dependents) has any present or future right to compensation or benefits or (ii) under which the Company, any of its Subsidiaries, or any Company ERISA Affiliate has or its Subsidiaries has had or has could reasonably be expected to have any present or future liability or with respect to which it is otherwise bound liability.
(collectively, the “Company Plans”). b) With respect to each Company Benefit Plan, the Company has made available to Parent Acquiror a true current, correct and complete copy thereof andthereof, to the extent and (where applicable: ): (i) any the related trust agreement or other funding instrument, ; (ii) the most recent determination letter of the Internal Revenue Service (the “IRS”)or opinion letter, if applicable, ; (iii) any the summary plan description (including any summaries of material modifications) and other written communications (or a description of any material oral communications) by the Company or its Subsidiaries to their employees the participants and/or beneficiaries concerning the extent of the benefits provided under a Company Plan, and thereunder; (iv) the insurance policies, certificates of coverage, and related documents; (v) for the two most recent four years preceding the date of this Agreement (A) the Annual Report (Form 5500 Series) and attached accompanying schedules, (B) audited financial statements, (C) actuarial valuation reports reports, and (D) attorney’s response to an auditor’s request for information.
(b) No Company Plan is subject to Title IV all notices issued by the IRS, Department of ERISA or Section 412 of the CodeLabor, no Company Plan is a multiemployer plan (within the meaning of Section 3(37) of ERISA), and neither the Company nor any member of its Controlled Group (defined as any organization which is a member of a controlled group of organizations within the meaning of Code Sections 414(b), (c), (m) or (o)) has any liability (direct or contingent) with respect to, and has never incurred any liability (director or contingent) with respect to, any employee benefit plan subject to Title IV of ERISA. No Company Plan provides health or other welfare benefits governmental agency to former employees of the Company or any of its Subsidiaries Subsidiaries; and (vi) all contracts with Third Party administrators, actuaries, investment managers, consultants, and other than health continuation coverage pursuant to COBRAindependent contractors.
(c) With respect to the Company Benefit Plans, except to the extent that the inaccuracy of any of the representations set forth in this paragraph (c), individually or and in the aggregate, has not been and would not reasonably be expected to be material to the Company and its Subsidiaries, taken as a whole:
(i) each no event has occurred and, to the Knowledge of the Company, there exists no condition or set of circumstances in connection with which the Company Plan has been established and administered in accordance with or any of its terms and in compliance with Subsidiaries could be subject to any material liability under ERISA, the applicable provisions of applicable Code or any other Applicable Law, including ERISA and the Code, and all contributions required to be made under the terms of any Company Plan have been timely made;
; (ii) each Company Plan intended no actions, suits or claims (other than routine claims for benefits in the ordinary course) are pending or to be qualified under Section 401(a) the Knowledge of the Code has received a favorable determinationCompany, advisory or opinion letter, as applicable, from the IRS that it is so qualified threatened; and nothing has occurred that would reasonably be expected to cause the loss of such qualified status of such Company Plan;
(iii) there is no Action (including any administrative investigation, audit or other administrative proceeding) proceeding 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, governmental agency is pending or to the Knowledge of the Company, threatened, relating to the Company Plans, any fiduciaries thereof with respect to their duties to the Company Plans or the assets of any of the trusts under any of the 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;
(iv) neither the Company nor its Subsidiaries nor any of their Affiliates has incurred any direct or indirect liability under ERISA or the Code in connection with the termination of, withdrawal from or failure to fund, any Company Plan or other retirement plan or arrangement, and no fact or event exists that would reasonably be expected to give rise to any such liability; and
(v) the Company and its Subsidiaries do not maintain any Company Plan that is a “group health plan” (as such term is defined in Section 5000(b)(1) of the Code) that has not been administered and operated in all respects in compliance with the applicable requirements of Section 601 of ERISA and Section 4980B(b) of the Code, and the Company and its Subsidiaries are not subject to any liability, including additional contributions, fines, penalties or loss of Tax deductions, as a result of such administration and operation; and.
(d) None Except as set forth in Section 3.11(d) of the Company Plans provides for payment of a benefitDisclosure Schedule, the increase of a benefit amount, the payment of a contingent benefit, the acceleration of a payment or the vesting of a benefit determined or occasioned, in whole or in part, by reason of neither the execution and delivery of this Agreement or any other document contemplated hereby, nor the consummation of the transactions Arrangement or any other transaction contemplated hereby (either alone or upon the occurrence of any additional or subsequent events), will result in conjunction with the acceleration or creation of any other eventrights of any Person to benefits under any Company Benefit Plan (including, but not limited to, the acceleration of the vesting or exercisability of any stock options or similar equity-based compensation, the acceleration of the vesting of any restricted stock or similar equity-based compensation, the acceleration of the accrual or vesting of any benefits under any pension plan or the acceleration or creation of any rights under any employment, severance, parachute or change in control agreement). None Except as set forth in Section 3.11(d) of the Company Plans Disclosure Schedule, each Company Benefit Plan can be merged, amended or any other plan agreement or arrangement in effect immediately prior to the Closing could result separately or in the aggregate in connection with the transactions contemplated by this Agreement (either alone or in conjunction with any other event) in the terminated, without payment of any “excess parachute payment” within additional contribution or amount and without the meaning vesting or acceleration of Section 280G of the Codeany benefits.
(e) Each No liability under Title IV or section 302 of ERISA has been incurred by the Company or by any Company ERISA Affiliate that has not been satisfied in full, and no condition exists that presents a risk to the Company or any Company ERISA Affiliate of incurring any such liability.
(f) No Company Benefit Plan that is subject to Section 302 or Title IV of ERISA or Section 412 or 4971 of the Code. Neither the Company nor any other Company ERISA Affiliate participates or has participated in, or contributes or has contributed to a multi-employer plan within the meaning of ERISA Section 3(37)(A). Neither the Company nor any other Company ERISA Affiliate sponsors or has sponsored, participates or has participated in, or contributes or has contributed to a voluntary employees’ beneficiary association within the meaning of Code Section 501(c)(9). Neither the Company nor any of its Subsidiaries has incurred any current or projected liability in respect of post-employment or post-retirement health, medical or life insurance benefits, except as required to avoid an excise Tax under Code Section 4980B. No Company Benefit Plan is a “nonqualified deferred compensation multiemployer plan” within the meaning of ERISA Section 409A(d)(14001(a)(3).
(g) All filings required by ERISA and the Code as to each Company Benefit Plan have been timely filed, and all notices and disclosures to participants, participant spouses and beneficiaries required by ERISA or the Code have been timely provided.
(h) The Company has no formal plan or commitment, whether legally binding or not, to create any additional Company Benefit Plan or modify or change any existing Company Benefit Plan that would affect any employee of the Company, or any spouse, dependent or beneficiary thereof.
(i) The Company and each of its Subsidiaries have performed all of their obligations under all Company Benefit Plans and have made appropriate entries in their financial records and statements for all obligations and liabilities under the Company Benefit Plans that have accrued as of the date of this Agreement. Each Company Benefit Plan is, in form and operation, in full compliance with ERISA, the Code, and other Applicable Laws. No transaction prohibited by ERISA Section 406 and no “prohibited transaction” under Code Section 4975(c) has complied occurred with respect to any Company Benefit Plan.
(j) All contributions and payments made or accrued with respect to all Employee Benefit Plans are deductible under Code Section 162 or 404. No amount, or any asset of any Employee Benefit Plan is subject to tax as unrelated business taxable income.
(k) No payment that is owed or may become due to any director, officer, employee, or agent of the Company will be non-deductible by the Company or any of its Subsidiaries under Code Section 280G or 4999; nor will the Company or any of its Subsidiaries be required to “gross up” or otherwise compensate any such Person because of the imposition of any excise tax on a payment to such Person.
(l) Each Company Benefit Plan that provides for nonqualified deferred compensation within the meaning of Code Section 409A complies in form and operation with the requirements of Code Section 409A 409A.
(m) No Company Benefit Plan is maintained outside the jurisdiction of the Code. No current United States, or former employee, director covers any employee residing or other service provider is entitled to any gross-up, make-whole or other additional payment from working outside the Company or any of its Subsidiaries in respect of any Tax (including Federal, state, local or foreign income, excise or other Taxes (including Taxes imposed under Section 409A and 4999 jurisdiction of the Code)) or interest or penalty related theretoUnited States.
Appears in 2 contracts
Samples: Arrangement Agreement (Magnum Hunter Resources Corp), Arrangement Agreement (NGAS Resources Inc)
Benefit Plans. (a) Section 3.11(a) of the The Company Disclosure Letter sets forth has provided to Parent a true and complete list, as of the date hereof, list of each “employee benefit plan” (within the meaning of section 3(3) of the Employee Retirement Income Security Act of 1974 1974, as amended (“ERISA”“)), “multiemployer planplans” (within the meaning of ERISA section 3(37)) ), and all stock purchase, stock option, phantom stock or other equity-based plan, severance, employment, collective bargaining, 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 or required in the future as a result of the transactions contemplated by this Agreement or otherwise), whether formal or informal, written or oral, legally binding or not, under which any current employee or former employee, director or consultant employee of the Company or its Subsidiaries (or any of their dependents) has any present or future right to compensation or benefits or the Company or its Subsidiaries has had or has any present or future liability or with respect liability. All such plans, agreements, programs, policies and arrangements shall be collectively referred to which it is otherwise bound (collectively, as the “Company Plans”). .” With respect to each Company Plan, the Company has furnished or made available to Parent a true current, accurate and complete copy thereof and, to the extent applicable: (i) any related trust agreement or other funding instrument, (ii) the most recent determination letter of the Internal Revenue Service (the “IRS”“), if applicable, (iii) any summary plan description and other written communications (or a description of any oral communications) by the Company or its Subsidiaries to their employees concerning the extent of the benefits provided under a Company Plan, Plan and (iv) for the two most recent years (A) the Form 5500 and attached schedules, (B) audited financial statements, (C) actuarial valuation reports reports, if applicable, and (D) attorney’s response to an auditor’s request for information, if applicable.
(b) No Each Company Plan for which the Company is subject the plan sponsor intended to Title IV of ERISA or be qualified under Section 412 401(a) of the CodeCode has received a favorable determination, no advisory and/or opinion letter, as applicable, from the IRS that it is so qualified and, to the knowledge of the Company, nothing has occurred since the date of such letter that would reasonably be expected to cause the loss of such qualified status of such Company Plan.
(c) No Company Plan is a multiemployer plan (within the meaning of as defined in Section 3(37) of ERISA), and neither the Company nor any member of its Controlled Group (defined as any organization which is a member of a controlled group of organizations within the meaning of Code Sections 414(b), (c), (m) or (o)) has any liability (direct or contingent) with respect to, and has never incurred any liability (director or contingent) with respect to, any employee benefit plan is subject to Section 412 or 430 of the Code or Title IV of ERISA. No Company Plan provides health or other welfare benefits to former employees of the Company or its Subsidiaries other than health continuation coverage pursuant to COBRA.
(cd) With respect to the Company Plans, except to the extent that the inaccuracy of any of the representations set forth in this paragraph (c), individually or in the aggregate, has not been and would not reasonably be expected to be material to the Company and its Subsidiaries, taken as a whole:
(i) each Company Plan for which the Company is the plan sponsor has been established and administered in accordance with its terms and in material compliance with the applicable provisions of ERISA, the Code, and other applicable LawLaws, including and no reportable event, as defined in Section 4043 of ERISA, to the Company’s knowledge, no prohibited transaction, as described in Section 406 of ERISA or Section 4975 of the Code, or accumulated funding deficiency, as defined in Section 302 of ERISA and 412 of the Code, has occurred with respect to any such Company Plan, and all contributions required to be made under the terms of any Company Plan have been timely made;
(ii) each Company Plan intended to be qualified under Section 401(a) of the Code has received a favorable determination, advisory or opinion letter, as applicable, from the IRS that it is so qualified and nothing has occurred that would reasonably be expected to cause the loss of such qualified status of such Company Plan;
(iii) there is no Action (including any investigation, audit or other administrative proceeding) 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 knowledge of the Company, threatened, relating to the Company Plans, any fiduciaries thereof with respect to their duties to the Company Plans or the assets of any of the trusts under any of the Company Plans (other than routine claims for benefits) nor nor, to the knowledge of the Company, are there facts or circumstances that exist that could reasonably give rise to any such Actions;
(iviii) neither none of the Company nor and its Subsidiaries nor any or members of their Affiliates Controlled Group (as defined in ERISA) has incurred any direct or indirect material liability under ERISA or the Code in connection with the termination of, withdrawal from or failure to fund, any Company Plan or other retirement plan or arrangement, and no fact or event exists that would reasonably be expected to give rise to any such liability; and;
(viv) the Company and its Subsidiaries do not maintain any Company Plan that is a “group health plan” (as such term is defined in Section 5000(b)(1) of the Code) that has not been administered and operated in all material respects in compliance with the applicable requirements of Section 601 of ERISA and Section 4980B(b) of the Code, and the Company and its Subsidiaries are not subject to any material liability, including additional contributions, fines, penalties or loss of Tax deductions, deduction as a result of such administration and operation; and.
(de) None of the Company Plans provides for payment of a benefit, the increase of a benefit amount, the payment of a contingent benefit, benefit or the acceleration of a the payment or the 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 hereby hereby. No amount or benefit that could be received by any “disqualified individual” (either alone or as defined in conjunction Treasury Regulation Section 1.280G-1) with any other event). None of respect to the Company Plans or any other plan agreement or arrangement in effect immediately prior to the Closing could result separately or in the aggregate Subsidiary in connection with the transactions contemplated by this Agreement (either alone or in conjunction combination with any other event, and whether pursuant to a Company Plan or otherwise) in the payment of any could be characterized as an “excess parachute payment” within the meaning of (as defined in Section 280G 280G(b)(l) of the Code).
(ef) No Company Plan provides for post-employment welfare benefits except to the extent required by Section 4980B of the Code or applicable state Law.
(g) Each Company Plan that is a “nonqualified deferred compensation plan” within the meaning of subject to Section 409A(d)(1) 409A of the Code has materially complied in form and operation with the requirements of Section 409A of the Code. No current or former employee, director or other service provider individual is entitled to any gross-up, make-whole or other additional payment from the Company or any of its Subsidiaries in respect of any Tax (including Federalfederal, state, local or foreign income, excise or other Taxes (including Taxes imposed under Section 409A and 4999 of the Code)) or interest or penalty related thereto.
Appears in 2 contracts
Samples: Merger Agreement (Schawk Inc), Merger Agreement (Matthews International Corp)
Benefit Plans. (a) Section 3.11(a) of the The Company Disclosure Letter sets forth has furnished or made available to Parent a true and complete list, as of the date hereof, list of each material written “employee benefit plan” (within the meaning of section 3(3) of the Employee Retirement Income Security Act of 1974 1974, as amended (“ERISA”)), “multiemployer plan” (within the meaning of ERISA section 3(37)) and including all stock purchase, stock option, phantom stock or other equity-based plan, severance, employment, collective bargaining, 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 or required in the future as a result of the transactions contemplated by this Agreement or otherwiseeffect), whether formal or informal, written or oral, legally binding or not, under which any current or former employee, director or individual consultant of the Company or its Subsidiaries (or any of their dependents) has any present or future right to compensation or benefits or the Company or its Subsidiaries has had or has any present or future liability other than “multiemployer plans” (within the meaning of ERISA section 3(37)) (“Multiemployer Plans”) and any plans or with respect programs that are mandated and administered by a Governmental Entity. All such plans, agreements, programs, policies and arrangements shall be collectively referred to which it is otherwise bound (collectively, as the “Company Plans”). .” In addition, the Company has furnished or made available to Parent a true and complete list of each Multiemployer Plan.
(b) With respect to each Company Plan, the Company has furnished or made available to Parent a true current, accurate and complete copy thereof and, to the extent applicable: (i) any related trust agreement or other funding instrument, (ii) the most recent determination letter of the Internal Revenue Service (the “IRS”), if applicable, (iii) any summary plan description and other written communications (or a description of any oral communications) by the Company or its Subsidiaries to their employees concerning the extent of the benefits provided under a Company Plan, Plan and (iv) for the two most recent years (A) the Form 5500 and attached schedules, (B) audited financial statements, and (C) actuarial valuation reports and (D) attorney’s response to an auditor’s request for information.
(b) No Company Plan is subject to Title IV of ERISA or Section 412 of the Code, no Company Plan is a multiemployer plan (within the meaning of Section 3(37) of ERISA), and neither the Company nor any member of its Controlled Group (defined as any organization which is a member of a controlled group of organizations within the meaning of Code Sections 414(b), (c), (m) or (o)) has any liability (direct or contingent) with respect to, and has never incurred any liability (director or contingent) with respect to, any employee benefit plan subject to Title IV of ERISA. No Company Plan provides health or other welfare benefits to former employees of the Company or its Subsidiaries other than health continuation coverage pursuant to COBRAreports.
(c) With respect to the Company Plans, :
(i) except to the extent that the inaccuracy of any of the representations set forth in this paragraph (c)as, individually or in the aggregate, has not been had, and would not reasonably be expected to be material to have, a Material Adverse Effect on the Company and its SubsidiariesCompany, taken as a whole:
(i) each Company Plan has been established and administered in accordance with its terms and in compliance with the applicable provisions of applicable Law, including ERISA and the Code, and no reportable event, as defined in Section 4043 of ERISA, no prohibited transaction, as described in Section 406 of ERISA or Section 4975 of the Code, or accumulated funding deficiency, as defined in Section 302 of ERISA and 412 of the Code, has occurred with respect to any Company Plan, and all contributions required to be made under the terms of any Company Plan have been timely made;
(ii) each Company Plan intended to be qualified under Section 401(a) of the Code has received a favorable determination, advisory or and/or opinion letter, as applicable, from the IRS that it is so qualified and and, to the Knowledge of the Company, nothing has occurred since the date of such letter that would reasonably be expected to cause the loss of such qualified status of such Company Plan;
(iii) the aggregate accumulated benefit obligations of the Company Plans subject to Title IV of ERISA (as of the date of the most recent actuarial valuation prepared for such Company Plans and based on the discount rate and other actuarial assumptions used in such valuation) do not exceed the fair market value of the assets of such Company Plans in the aggregate (as of the date of such valuation);
(iv) except as, individually or in the aggregate, has not had, and would not reasonably be expected to have a Material Adverse Effect on the Company, there is no Action (including any investigation, audit or other administrative proceeding) by the Department of Labor, the Pension Benefit Guaranty CorporationCorporation (the “PBGC”), the IRS or any other Governmental Entity or by any plan participant or beneficiary pending, or to the Knowledge of the Company, threatened, relating to the Company Plans, any fiduciaries thereof who the Company has an obligation to indemnify with respect to their duties to the Company Plans or the assets of any of the trusts under any of the Company Plans (other than routine claims for benefits) nor ), nor, to the Knowledge of the Company, are there facts or circumstances that exist that could reasonably give rise to any such Actions;
(ivv) neither with respect to any Multiemployer Plan to which the Company nor Company, its Subsidiaries nor or any member of their Affiliates Controlled Group (defined as any organization which is a member of a controlled group of organizations within the meaning of Code 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 the Company, its Subsidiaries or any member of their Controlled Group has incurred any direct withdrawal liability in the past six (6) years under Title IV of ERISA that remains unsatisfied or indirect would be subject to any withdrawal liability under if, as of the Effective Time, the Company, 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), except, in each case, as, individually or in the Code in connection with the termination ofaggregate, withdrawal from or failure to fund, any Company Plan or other retirement plan or arrangementhas not had, and no fact or event exists that would not reasonably be expected to give rise have, a Material Adverse Effect on the Company;
(vi) except as, individually or in the aggregate, has not had, and would not reasonably be expected to have, a Material Adverse Effect on the Company, with respect to each Company Plan that is subject to Title IV of ERISA, the Company has not incurred, nor, to the Knowledge of the Company, does it reasonably expect to incur, any liability to the Company Plan or to the PBGC in connection with such liabilityCompany Plan (other than for premiums to the PBGC); and
(vvii) the Company and its Subsidiaries do not maintain any each Company Plan that is a “group health plan” (as such term is defined in Section 5000(b)(1) of the Code) that has not been administered and operated in all respects in compliance with the applicable requirements of Section 601 of ERISA and Section 4980B(b) of the Code, and to the Knowledge of the Company the Company and its Subsidiaries are not subject to any liability, including additional contributions, fines, penalties or loss of Tax deductions, deduction as a result of such administration any operational failures, except, in each case, as, individually or in the aggregate, has not had, and operation; andwould not reasonably be expected to have, a Material Adverse Effect on the Company.
(d) None Except as set forth in Section 3.12(d) of the Company Plans provides for payment of a benefitDisclosure Letter, the increase of a benefit amount, the payment of a contingent benefit, the acceleration of a payment or the vesting of a benefit determined or occasioned, in whole or in part, by reason of the execution of this Agreement or and the consummation of the transactions contemplated hereby (will not, either alone or in conjunction combination with another event, (i) entitle any other event). None Company Participant to severance pay under the terms of a Company Plan, (ii) accelerate the time of payment, vesting or funding, or increase the amount of compensation due to any Company Participant or (iii) cause or result in a limitation on the right of the Company Plans or any other plan agreement of its Subsidiaries to amend, merge, terminate or arrangement in effect immediately prior to receive a reversion of assets from any Company Plan or related trust. Section 3.12(d) of the Closing could Company Disclosure Letter separately identifies any equity-based incentive awards the vesting of which will be accelerated solely as a result separately of the consummation of the transactions contemplated by this Agreement. No amount paid or in payable by the aggregate Company or any of its Subsidiaries or Parent or any of its Affiliates in connection with the transactions contemplated by this Agreement (either Agreement, whether alone or in conjunction combination with any other another event) in the payment of any , will be an “excess parachute payment” within the meaning of Section 280G or Section 4999 of the Code or will not be deductible by the Company by reason of Section 280G of the Code.
(e) Each Company Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A(d)(1) of the Code has complied in form and operation with the requirements of (a “Nonqualified Deferred Compensation Plan”) subject to Section 409A of the CodeCode has been operated in compliance in all material respects 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, in each case as modified by IRS Notice 2007-86 (clauses (i) and (ii), together, the “409A Authorities”). No current or former employee, director or other service provider Company Participant is entitled to any gross-up, make-whole or other additional payment from the Company or any of its Subsidiaries under any Company Plan in respect of any Tax (including Federalfederal, state, local or foreign income, excise or other Taxes (including Taxes imposed under Section 409A and of the Code and/or Section 4999 of the Code)) or interest or penalty related thereto.
(f) For purposes of this Agreement, “Company Participant” shall mean current or former director, officer, employee, individual contractor or individual consultant of the Company or any of its Subsidiaries.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Urs Corp /New/), Merger Agreement (Aecom Technology Corp)
Benefit Plans. (a) Section 3.11(a2.17(a) of the Company Disclosure Letter Schedule sets forth a true an accurate and complete list, as list of the date hereof, of each “employee benefit plan” material Employee Plans (within the meaning of section 3(3) of the Employee Retirement Income Security Act of 1974 (“ERISA”)), “multiemployer plan” (within the meaning of ERISA section 3(37)) and all stock purchase, stock option, phantom stock or other equity-based plan, severance, employment, collective bargaining, 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 or required in the future as a result of the transactions contemplated by this Agreement or otherwise), whether formal or informal, written or oral, legally binding or not, under which any current or former employee, director or consultant of the Company or its Subsidiaries (or any of their dependents) has any present or future right to compensation or benefits or the Company or its Subsidiaries has had or has any present or future liability or with respect to which it is otherwise bound (collectively, the “Company Plans”). With respect to each Company Plan, the Company has made available to Parent a true and complete copy thereof and, to the extent applicable: than (i) any related trust agreement or other funding instrument, (ii) the most recent determination letter of the Internal Revenue Service (the “IRS”), if applicable, (iii) any summary plan description and other written communications (or a description of any oral communications) by the Company or its Subsidiaries to their employees concerning the extent of the benefits provided under a Company Plan, and (iv) employment agreements for the two most recent years (A) the Form 5500 and attached schedules, (B) audited financial statements, (C) actuarial valuation reports and (D) attorney’s response to an auditor’s request for information.
(b) No Company Plan is subject to Title IV of ERISA or Section 412 of the Code, no Company Plan is a multiemployer plan (within the meaning of Section 3(37) of ERISA), and neither the Company nor any member of its Controlled Group (defined as any organization which is a member of a controlled group of organizations within the meaning of Code Sections 414(b), (c), (m) or (o)) has any liability (direct or contingent) with respect to, and has never incurred any liability (director or contingent) with respect to, any employee benefit plan subject to Title IV of ERISA. No Company Plan provides health or other welfare benefits to former non-officer employees of the Company or its Subsidiaries that do not provide for any severance rights, (ii) equity grant notices with respect to awards disclosed on Section 2.3(g) of the Company Disclosure Schedule and that do not materially deviate from the forms delivered or made available to Parent prior to the execution of this Agreement in accordance with Section 2.17(k), or (iii) agreements with individual consultants entered into in the ordinary course of business consistent with past practice). To the extent applicable, the Company has either delivered or made available to Parent prior to the execution of this Agreement with respect to each material Employee Plan accurate and complete copies of: (A) all plan documents and all amendments thereto, and all related trust or other than health continuation coverage pursuant funding documents, and in the case of unwritten material Employee Plans, written descriptions thereof, (B) the most recent annual actuarial valuation, if any, and the most recent annual report (Form Series 5500 and all schedules and financial statements attached thereto), (C) all material correspondence to COBRAor from the IRS, the United States Department of Labor or any other Governmental Body with respect to an Employee Plan, (D) all determination letters, rulings, opinion letters, information letters or advisory opinions issued by the IRS or the United States Department of Labor, and (E) the most recent summary plan descriptions and any material modifications thereto.
(b) Neither the Company nor any ERISA Affiliate has ever maintained, contributed to, been required to contribute to, or otherwise incurred any liability with respect to, (i) a plan subject to Title IV or Section 302 of ERISA or Code Section 412 or 4971, including any “single employer” defined benefit plan or any “multiemployer plan,” each as defined in Section 4001 of ERISA, or (ii) a plan that has two or more contributing sponsors at least two of whom are not under common control, within the meaning of Section 4063 of ERISA.
(c) With respect to the Company Plans, except to the extent that the inaccuracy of any Each of the representations set forth in this paragraph (c), individually or in the aggregate, has not been and would not reasonably be expected to be material to the Company and its Subsidiaries, taken as a whole:
(i) each Company Plan has been established and administered in accordance with its terms and in compliance with the applicable provisions of applicable Law, including ERISA and the Code, and all contributions required to be made under the terms of any Company Plan have been timely made;
(ii) each Company Plan Employee Plans that is intended to be qualified under Section 401(a) of the Code has received obtained a favorable determination, advisory determination letter (or opinion letter, if applicable) as applicableto its qualified status under the Code, from each such Employee Plan has timely adopted all currently effective amendments to the IRS Code, and, to the knowledge of the Company, there are no existing circumstances or any events that it is so qualified and nothing has have occurred that would reasonably be expected to cause affect the loss of such qualified status of any such Company Employee Plan;.
(iiid) there Each of the Employee Plans is now and has been operated in compliance in all material respects with its terms and all applicable Legal Requirements, including but not limited to ERISA and the Code.
(e) There are no Action pending or threatened claims (including other than routine claims for benefits in the ordinary course of business consistent with past practice) or Legal Proceedings, and, to the knowledge of the Company, no set of circumstances exists that may reasonably give rise to a claim or Legal Proceeding, against the Employee Plans, any investigationfiduciaries thereof or the assets of any related trusts. No Employee Plan is under audit or, audit or other administrative proceeding) to the Company’s knowledge, the subject of an investigation by the IRS, the U.S. Department of Labor, the Pension Benefit Guaranty Corporation, the IRS SEC or any other Governmental Entity Body, nor is any such audit or by any plan participant or beneficiary pendinginvestigation pending or, or to the Knowledge knowledge of the Company, threatened. The Company is not and could not reasonably be expected to be subject to either a material liability pursuant to Section 502 of ERISA or a material Tax imposed pursuant to Section 4975 or 4976 of the Code.
(f) Each Employee Plan that is in any part a “nonqualified deferred compensation plan” subject to Section 409A of the Code complies both in form and operation with the requirements of Section 409A of the Code in all material respects.
(g) All contributions required to be made to any Employee Plan by applicable Legal Requirements or otherwise, relating to the Company Plans, any fiduciaries thereof and all premiums due or payable with respect to their duties insurance policies funding any Employee Plan, have been timely made or paid in full or, to the Company Plans extent not required to be made or paid on or before the assets of any of date hereof, have been fully reflected on the trusts under any financial statements of the Company Plans in accordance with GAAP.
(h) Except to the extent required under Section 601 et seq. of ERISA or 4980B of the Code (or any other than routine claims for benefitssimilar state or local Legal Requirement), no Acquired Corporation, ERISA Affiliate nor any Employee Plan has any present or future obligation to provide post-employment welfare benefits to or make any payment to, or with respect to, any present or former employee, officer, director or service provider of the Acquired Corporations pursuant to any retiree medical benefit plan or other retiree welfare plan.
(i) nor are there facts Except as provided in Section 1.8, the consummation of the Transactions (including in combination with other events or circumstances that exist that could reasonably give rise circumstances) will not (i) entitle any current or former employee, director, officer, independent contractor or other service provider of an Acquired Corporation to severance pay, unemployment compensation or any other material payment, (ii) accelerate the time of payment or vesting, or increase the amount of, compensation or benefits due to any such Actions;
employee, director, officer, independent contractor, (iii) directly or indirectly cause an Acquired Corporation to transfer or set aside any material assets to fund any payments or benefits under any Employee Plan, or (iv) neither result in any limitation on the Company nor its Subsidiaries nor right of an Acquired Corporation to amend, merge, terminate or receive a reversion of assets from any Employee Plan or related trust. Without limiting the generality of their Affiliates has incurred any direct the foregoing, no amount paid or indirect liability under ERISA payable (whether in cash, in property, or in the Code form of benefits) by an Acquired Corporation in connection with the termination of, withdrawal from or failure to fund, any Company Plan or other retirement plan or arrangement, and no fact or event exists that would reasonably be expected to give rise to any such liability; and
Transactions (v) the Company and its Subsidiaries do not maintain any Company Plan that is a “group health plan” (as such term is defined in Section 5000(b)(1) of the Code) that has not been administered and operated in all respects in compliance with the applicable requirements of Section 601 of ERISA and Section 4980B(b) of the Code, and the Company and its Subsidiaries are not subject to any liability, including additional contributions, fines, penalties or loss of Tax deductions, as a result of such administration and operation; and
(d) None of the Company Plans provides for payment of a benefit, the increase of a benefit amount, the payment of a contingent benefit, the acceleration of a payment or the 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 hereby (either whether alone or in conjunction combination with any other event). None of the Company Plans events or any other plan agreement or arrangement in effect immediately prior to the Closing could result separately or in the aggregate in connection with the transactions contemplated by this Agreement (either alone or in conjunction with any other eventcircumstances) in the payment of any will be an “excess parachute payment” within the meaning of Section 280G of the Code.
(ej) No Employee Plan provides for the gross-up or reimbursement of Taxes under Section 4999 or 409A of the Code, or otherwise.
(k) The Company has made available to Parent copies of the Company Equity Plans and the forms of all agreements and instruments relating to or issued under the Company Equity Plans. Each outstanding Company Plan that is a “nonqualified deferred compensation plan” Option has an exercise price equal to or above the fair market value on the date of grant (within the meaning of Section 409A(d)(1) of the Code has complied in form and operation with the requirements of Section 409A of the Code. ) and is otherwise not subject to Section 409A of the Code.
(l) No current Employee Plan is subject to the Legal Requirements of a jurisdiction other than the United States (whether or former employee, director not United States Legal Requirements also apply) or covers employees or other service provider is entitled to any gross-up, make-whole or other additional payment from the Company or any of its Subsidiaries in respect providers of any Tax (including Federal, state, local or foreign income, excise or other Taxes (including Taxes imposed under Section 409A and 4999 of Acquired Corporation working primarily outside the Code)) or interest or penalty related theretoUnited States.
Appears in 2 contracts
Samples: Acquisition Agreement, Merger Agreement (IVERIC Bio, Inc.)
Benefit Plans. (a) Section 3.11(a) of the The Company Disclosure Letter sets forth has provided to Parent a true and complete list, as of the date hereof, list of each material (i) “employee benefit plan” (within the meaning of section Section 3(3) of the Employee Retirement Income Security Act of 1974 1974, as amended (“ERISA”)), (ii) “multiemployer plan” (within the meaning of ERISA section Section 3(37) of ERISA), (iii) and all stock purchase, stock option, phantom stock or other equity-based plan, and (iv) severance, facility closing, employment, collective bargaining, change-in-control, fringe benefit, bonus, incentive, deferred compensation compensation, supplemental retirement, death benefit, cafeteria, vacation, and all other material 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 or required in the future as a result of the transactions contemplated by this Agreement or otherwisetherefor), whether formal or informal, written or oral, legally binding or not, (x) under which any current or former employee, director director, or consultant of the Company or its Subsidiaries (has any rights to material compensation or benefits from the Company or any of their dependentsits Subsidiaries or (y) has any present or future right to compensation or benefits or for which the Company or its Subsidiaries has had or any Subsidiary has any present or future material liability or with respect to which it is otherwise bound (collectivelybound. All such plans, agreements, programs, policies and arrangements shall be collectively referred to as the “Company Plans”). .” With respect to each Company Plan, the Company has furnished or made available to Parent a true current, accurate and complete copy thereof and, to the extent applicable: (i) any related trust agreement agreement, insurance policy or other funding instrument, (ii) the most recent determination letter of the Internal Revenue Service (the “IRS”), if applicable, (iii) any summary plan description and other material written communications (or a description of any material oral communications) by the Company or its Subsidiaries to their employees concerning the extent of the benefits provided under a Company Plan, and (iv) for the two most recent years year (A) the Form 5500 and attached schedules, (B) audited financial statementsstatements (or if none, the latest cost summaries, including any Form 990 or 990T filings), and (C) actuarial valuation reports reports, (v) nondiscrimination testing results, (vi) forms of Company Equity Plan award agreements, (vii) correspondence in connection with any material government audit or investigation, excise tax, funding waiver, closing agreement or correction program, (viii) information relating to any material pending or threatened litigation or other legal proceeding involving a Company Plan, and (Dix) attorney’s response any self-help analysis, reports of outside consultants or auditors, or similar materials examining actual or potential liabilities with respect to any Company Plan. Section 3.11(a) of the Company Disclosure Letter sets forth the maximum aggregate Gross-Up Payments that may be triggered by the consummation of the transactions contemplated hereby, assuming an auditor’s request for informationinvoluntary termination of all eligible employees without cause as of March 31, 2012.
(b) No With respect to the Company Plans:
(i) except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, (A) each Company Plan has been established and administered in accordance with its terms and in compliance with the applicable provisions of ERISA, the Code and all other applicable Law, (B) no non-exempt prohibited transaction, as described in Section 406 of ERISA or Section 4975 of the Code, has occurred with respect to any Company Plan, and (C) all contributions required to be made under the terms of any Company Plan have been timely made;
(ii) each Company Plan intended to be qualified under Section 401(a) of the Code is so qualified and has received a favorable determination, advisory or opinion letter, as applicable, from the IRS that it is so qualified and nothing has occurred since the date of such letter that would reasonably be expected to cause the loss of such qualified status of such Company Plan;
(iii) no Company Plan is subject to Title IV or Part 3 of Title I of ERISA or Section 412 of the Code;
(iv) except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, there is no Action (including any investigation, audit or other administrative proceeding) by the Department of Labor, the Pension Benefit Guaranty Corporation (the “PBGC”), the IRS, the SEC or any other Governmental Entity or by any plan participant or beneficiary pending, or to the knowledge of the Company, threatened, relating to the Company Plans (other than routine, uncontested claims for benefits), nor, to the knowledge of the Company, are there facts or circumstances that exist that could reasonably give rise to any such Actions;
(v) any Company Plan providing death benefits is fully insured (other than the Company’s 401(k) plan);
(vi) no Company Plan is a multiple employer plan (as defined in Code Section 413) or a “multiemployer plan plan” (within the meaning of Section ERISA section 3(37)) of ERISA)to which the Company, and neither the Company nor its Subsidiaries or any member of its their Controlled Group (defined as any organization which is a member of a controlled group of organizations within the meaning of Code Sections 414(b), (c), (m) or (o)) has any liability or has contributed (direct or contingenthad at any time contributed or had an obligation to contribute);
(vii) with respect to each Company Plan or similar plan currently or formerly maintained or contributed to (or required to be contributed to) by the Company, a Subsidiary, or any current or former member of their Controlled Group, to the knowledge of the Company, no event has occurred and has never incurred no condition exists that on or after the Effective Time could subject the Company, Parent or Surviving Corporation, directly or indirectly, to any material liability (director including material liability under any indemnification agreement) under Section 412, 413, 4971, 4975 or contingent) with respect to4980B of the Code or Section 302, any employee benefit plan subject to 502, 515, 601, 606 or Title IV of ERISA. No ;
(viii) no Company Plan provides health for any post-employment welfare benefits; and with respect to any Company Plan that provides retiree welfare benefits, (A) such plans can be amended or other welfare benefits to former employees terminated at any time, and (B) the FAS 106 liabilities of the Company or its Subsidiaries other than health continuation coverage pursuant to COBRA.and the assumptions used therefor accurately reflect the costs associated with the rights and benefit of all plan participants;
(cix) With respect except as has not had and would not reasonably be expected to the Company Plans, except to the extent that the inaccuracy of any of the representations set forth in this paragraph (c)have, individually or in the aggregate, has not been and would not reasonably be expected to be material to a Material Adverse Effect, (A) none of the Company and its Subsidiaries, taken as a whole:
(i) each Company Plan has been established and administered in accordance with its terms and in compliance with the applicable provisions of applicable Law, including ERISA and the Code, and all contributions required to be made under the terms of any Company Plan have been timely made;
(ii) each Company Plan intended to be qualified under Section 401(a) of the Code has received a favorable determination, advisory Subsidiaries or opinion letter, as applicable, from the IRS that it is so qualified and nothing has occurred that would reasonably be expected to cause the loss of such qualified status of such Company Plan;
(iii) there is no Action (including any investigation, audit or other administrative proceeding) 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 the Company, threatened, relating to the Company Plans, any fiduciaries thereof with respect to their duties to the Company Plans or the assets of any of the trusts under any of the 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;
(iv) neither the Company nor its Subsidiaries nor any members of their Affiliates Controlled Group has incurred any direct or indirect liability under ERISA or the Code in connection with the termination of, withdrawal from or failure to fund, any Company Plan or other retirement plan or arrangementplan, and (B) no fact or event exists that would reasonably be expected to give rise to any such liability; and;
(vx) the Company and its Subsidiaries do not maintain any Company Plan that is a “group health plan” (as such term is defined in Section 5000(b)(1) of the Code) that has not been administered and operated in all respects in compliance with the applicable requirements of Section 601 of ERISA and Section 4980B(b) of the Code, and the Company and its Subsidiaries are not subject to any liability, including additional contributions, fines, penalties or loss of Tax deductions, as a result of such administration and operation; and
(d) None none of the Company Plans provides for payment of a benefit, the increase of a benefit amount, the payment of a contingent benefit, the deemed satisfaction of goals or conditions, the release or modification of any indebtedness, or the acceleration of a the funding, payment or the 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 hereby (either alone “CIC Payment”);
(xi) no Company Plan provides for any gross-up payment for any excise tax imposed by or in conjunction with relating to Code Section 280G or 4999 (“Gross-Up Payment”);
(xii) any Gross-Up Payment provided under the Company’s Executive Severance Plan is based solely on the severance pay and benefits payable under such Executive Severance Plan, and does not provide for any Gross-Up Payment relating to any accelerated vesting or payout under any Company Equity Plan or attributable to any other eventCIC Payment; and any Company Equity Plan acceleration or other CIC Payment is not counted in determining whether or not any Executive Severance Plan participant is entitled to any Gross-Up Payment with respect to any compensation or benefits provided under the Executive Severance Plan; and
(xiii) no Company Plan has any unfunded benefits that are not fully reflected in the Company’s audited financial statements (including without limitation, any accruals or reserves or other provisions for any liabilities that may be triggered upon a change in control). None of the Company Plans or any other plan agreement or arrangement in effect immediately prior .
(c) Except as has not had and would not reasonably be expected to the Closing could result separately have, individually or in the aggregate in connection with the transactions contemplated by this Agreement (either alone or in conjunction with any other event) in the payment of any “excess parachute payment” within the meaning of Section 280G of the Code.
(e) Each aggregate, a Material Adverse Effect, each Company 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 complied been operated in form and operation compliance with the requirements of Section 409A of the Code. No current or former employee, director or other service provider is entitled to any gross-up, make-whole or other additional payment from the Company or any of its Subsidiaries in respect of any Tax (including Federal, state, local or foreign income, excise or other Taxes (including Taxes imposed under Section 409A and 4999 of the Code)) or interest or penalty related thereto.
Appears in 2 contracts
Samples: Merger Agreement (Southeastern Grocers, LLC), Merger Agreement (Winn Dixie Stores Inc)
Benefit Plans. (ai) Section 3.11(a) of the Company Disclosure Letter sets forth Schedule 2.15 is a true and complete list, as of the date hereof, list of each “-------------- "employee pension benefit plan” " (within the meaning of section 3(3as defined in Section 3(2) of the Employee Retirement Income Security Act of 1974 1974, as amended (“"ERISA”")) (hereinafter a "Pension Plan"), “multiemployer "employee welfare benefit plan” " (within the meaning as defined in Section 3(l) of ERISA section 3(37ERISA, hereinafter a "Welfare Plan")) , and all each other plan, arrangement or policy relating to stock purchaseoptions, stock optionpurchases, phantom stock or other equity-based plancompensation, deferred compensation, severance, employment, collective bargaining, change-in-control, fringe benefit, bonus, incentive, deferred compensation and all benefits or other employee benefit and compensation plansbenefits, agreementsin each case maintained or contributed to, 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 to be maintained or otherwise)contributed to, whether formal or informal, written or oral, legally binding or not, under which any current or former employee, director or consultant of the Company or its Subsidiaries (or any of their dependents) has any present or future right to compensation or benefits or the Company or its Subsidiaries has had or has any present or future liability or with respect to which it is otherwise bound (collectively, the “Company Plans”). With respect to each Company Plan, the Company has made available to Parent a true and complete copy thereof and, to the extent applicable: (i) any related trust agreement or other funding instrument, (ii) the most recent determination letter of the Internal Revenue Service (the “IRS”), if applicable, (iii) any summary plan description and other written communications (or a description of any oral communications) by the Company or and its Subsidiaries to their employees concerning or any other person or entity that, together with the extent of the benefits provided Company, is treated as a single employer under a Company Plan, and (iv) for the two most recent years (A) the Form 5500 and attached schedules, (B) audited financial statements, (C) actuarial valuation reports and (D) attorney’s response to an auditor’s request for information.
(b) No Company Plan is subject to Title IV of ERISA or Section 412 of the Code, no Company Plan is a multiemployer plan (within the meaning of Section 3(37) of ERISA), and neither the Company nor any member of its Controlled Group (defined as any organization which is a member of a controlled group of organizations within the meaning of Code Sections 414(b), (c), (m) or (o)) has of the Code (each a "Commonly Controlled Entity") for the benefit of any liability (direct present or contingent) with respect to, and has never incurred any liability (director or contingent) with respect to, any employee benefit plan subject to Title IV of ERISA. No Company Plan provides health or other welfare benefits to former employees of the Company or any of its Subsidiaries other than health continuation coverage pursuant (all the foregoing being herein called "Benefit Plans"). The Company has made available to COBRAParent true, complete and correct copies of (1) each Benefit Plan, (2) the most recent annual report on Form 5500 as filed with the Internal Revenue Service with respect to each applicable Benefit Plan, (3) the most recent summary plan description (or similar document) with respect to each applicable Benefit Plan and (4) each trust agreement and insurance or annuity contract relating to any Benefit Plan.
(cii) With respect Except as disclosed in Schedule 2.15, to the Company Plans, except to the extent that the inaccuracy of any knowledge of the representations set forth in this paragraph (c)Company, individually or in the aggregate, has not been and would not reasonably be expected to be material to the Company and its Subsidiaries, taken as a whole:
(i) each Company Benefit Plan has been established and administered in all material respects in accordance with its terms terms. Except as disclosed in Schedule 2.15, to the knowledge of the Company, the Company, its Subsidiaries and all the Benefit Plans are in compliance in all material respects with the applicable provisions of applicable LawERISA, including ERISA and the Code, and all other Applicable Laws. Except as disclosed in Schedule 2.15, to the knowledge of the Company, there are no investigations by any governmental agency, termination proceedings or other claims (except claims for benefits payable in the normal operation of the Benefit Plans), suits or proceedings against or involving any Benefit Plan or asserting any rights to or claims for benefits under any Benefit Plan that could give rise to a Material Adverse Effect, and to the knowledge of the Company, there are not any facts that could give rise to a Material Adverse Effect in the event of any such investigation, claim, suit or proceeding.
(iii) Except as disclosed on Schedule 2.15, to the knowledge of the Company: (1) all contributions to the Benefit Plans required to be made under by the Company or any of its Subsidiaries in accordance with the terms of the Benefit Plans, any Company Plan applicable collective bargaining agreement and, when applicable, Section 302 of ERISA or Section 412 of the Code, have been timely made;
, (ii2) each there has been no application for or waiver of the minimum funding standards imposed by Section 412 of the Code with respect to any Benefit Plan that is a Pension Plan, excluding any Pension Plan which is a multiemployer plan as defined in Section 4001(a)(3) of ERISA (hereinafter a "Company Pension Plan") and (3) no Company Pension Plan intended to be qualified under had an "accumulated funding deficiency" within the meaning of Section 401(a412(a) of the Code as of the end of the most recently completed plan year. All such contributions to the Benefit Plans for any period ending before the Balance Sheet Date are properly accrued and reflected in the Balance Sheet and such contributions since such Balance Sheet Date will be reflected on subsequent balance sheets.
(iv) Except as disclosed on Schedule 2.15, to the knowledge of the Company, (1) each Company Pension Plan that is intended to be a tax-qualified plan has been the subject of a determination letter from the Internal Revenue Service to the effect that such Company Pension Plan and each related trust is qualified and exempt from Federal income taxes under Sections 401(a) and 501(a), respectively, of the Code, (2) no such determination letter has been revoked, and revocation has not been threatened, (3) no event has occurred and no circumstances exist that would adversely affect the tax-qualification of such Company Pension Plan and (4) such Company Pension Plan has not been amended since the effective date of its most recent determination letter in any respect that might adversely affect its qualification, materially increase its cost or require security under Section 307 of ERISA. The Company has made available to Parent a copy of the most recent determination letter received with respect to each Company Pension Plan for which such a letter has been issued, as well as a copy of any pending application for a determination letter. The Company has also provided to Parent a list of all Company Pension Plan amendments as to which a favorable determinationdetermination letter has not yet been received.
(v) Schedule 2.15 discloses whether: (1) to the knowledge of the Company, advisory any non-exempt "prohibited transaction" (as defined in Section 4975 of the Code or opinion letter, as applicable, from the IRS that it is so qualified and nothing Section 406 of ERISA) has occurred that would reasonably be expected involves the assets of any Benefit Plan; (2) to cause the loss knowledge of such qualified status the Company, any Company Pension Plan has been terminated or has been the subject of such Company Plan;
a "reportable event" (iiias defined in Section 4043 of ERISA and the regulations thereunder) there is no Action (including any investigation, audit or other administrative proceeding) for which the 30-day notice requirement has not been waived 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 Corporation ("PBGC"); and (3) to the Knowledge knowledge of the Company, threatenedthe Company, relating any of its Subsidiaries or any trustee, administrator or other fiduciary of any Benefit Plan has engaged in any transaction or acted in a manner that could, or has failed to act so as to, subject the Company, any such Subsidiary or any trustee, administrator or other fiduciary to any material liability for breach of fiduciary duty under ERISA or any other applicable law.
(vi) Except as disclosed on Schedule 2.15, to the knowledge of the Company, as of the most recent valuation date for each Company PlansPension Plan that is a "defined benefit pension plan" (as defined in Section 3(35) of ERISA (hereinafter a "Defined Benefit Plan")), there was not any fiduciaries thereof with respect to their duties to amount of "unfunded benefit liabilities" (as defined in Section 4001(a)(18) of ERISA) under such Defined Benefit Plan, and the Company Plans or the assets is not aware of any of the trusts under any of the Company Plans (other than routine claims for benefits) nor are there facts or circumstances that exist that could reasonably give rise to would materially change the funded status of any such Actions;Defined Benefit Plan. The Company has made available to Parent the most recent actuarial report or valuation with respect to each Defined Benefit Plan.
(ivvii) neither Except as disclosed on Schedule 2.15, to the Company nor its Subsidiaries nor any knowledge of their Affiliates the Company, no Commonly Controlled Entity has incurred any direct liability to a Pension Plan (other than for contributions not yet due) or indirect to the PBGC (other than for the payment of premiums not yet due) that, when aggregated with other such liabilities, would result in a Material Adverse Effect to the Company, which liability has not been fully paid as of the date hereof if due and payable.
(viii) No Commonly Controlled Entity has (a) engaged in a transaction described in Section 4069 of ERISA that could subject the Company to a material liability at any time after the date hereof or (b) acted in a manner that could, or failed to act so as to, result in material fines, penalties, taxes or related charges under (x) Section 502(c), (i) or (1) of ERISA, (y) Section 4071 of ERISA or (z) Chapter 43 of the Code Code.
(ix) Except as disclosed in connection with Schedule 2.15, to the termination ofknowledge of the Company, withdrawal no Commonly Controlled Entity has announced an intention to withdraw, but has not yet completed withdrawal, from or failure a "multiemployer plan" (as defined in Section 4001(a)(3) of ERISA). Except as disclosed on Schedule 2.15, to fundthe knowledge of the Company, any Company Plan or other retirement plan or arrangementno action has been taken, and no fact circumstances exist, that could result in either a partial or event exists complete withdrawal from such a multiemployer plan by any Commonly Controlled Entity. Schedule 2.15 also lists for each Benefit Plan that is a multiemployer plan (excluding the multiemployer plan in respect of the Company's former New York Building Products, Inc. operations) the Company's best estimate, based upon the information supplied to it by each multiemployer plan, of the amount of withdrawal liability that would reasonably be expected incurred if each Commonly Controlled Entity were to give rise make a complete withdrawal from each such plan as of the dates specified in Schedule 2.15. Schedule 2.15 also lists for each Benefit Plan that is a multiemployer plan (excluding the multiemployer plans in respect of the Company's former New York Building Products, Inc., and Bardstown operations) the Company's best estimate, based upon the information supplied to it by each multiemployer plan, of the amount of "unfunded vested benefits" (within the meaning of Section 4211 of ERISA) as of the dates specified in Schedule 2.15. As of the most recent valuation date for the multiemployer plan in respect of the Company's former New York Building Products Inc. operations, to the knowledge of the Company, based upon the information supplied to it by such multiemployer plan, there was not any amount of "unfunded vested benefits" under such plan.
(x) The list of Welfare Plans in Schedule 2.15 discloses whether each Welfare Plan is (i) unfunded, (ii) funded through a "welfare benefit fund", as such term is defined in Section 419(e) of the Code, or other funding mechanism or (iii) insured. Except as disclosed on Schedule 2.15, to the knowledge of the Company, apart from the written provisions of the Welfare Plans disclosed to Parent, there are no understandings, agreements or undertakings, written or oral, that would prevent any such liability; and
(v) Welfare Plan from being amended or terminated at any time after the Closing Date. The Company and its Subsidiaries do not maintain any Company comply with the applicable requirements of Section 4980B(f) of the Code with respect to each Benefit Plan that is a “group health plan” (, as such term is defined in Section 5000(b)(1) of the Code) that has not been administered and operated in all respects in compliance with the applicable requirements of Section 601 of ERISA and Section 4980B(b) of the Code, and the Company and its Subsidiaries are not subject to any liability, including additional contributions, fines, penalties or loss of Tax deductions, as a result of such administration and operation; and
(d) None of the Company Plans provides for payment of a benefit, the increase of a benefit amount, the payment of a contingent benefit, the acceleration of a payment or the 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 hereby (either alone or in conjunction with any other event). None of the Company Plans or any other plan agreement or arrangement in effect immediately prior to the Closing could result separately or in the aggregate in connection with the transactions contemplated by this Agreement (either alone or in conjunction with any other event) in the payment of any “excess parachute payment” within the meaning of Section 280G of the Code.
(exi) Each Company Plan that is a “nonqualified deferred compensation plan” within Except as provided in Section 1.14 with respect to the meaning 1982 Stock Option Plan, the 1992 Stock Option Plan, the Director Option Plan, the 1998 Incentive Compensation Program (the "MICP") and the Savings Plan, and as provided in the employment and severance agreements listed in Schedules 2.11 (a) and 2.15, no employee of Section 409A(d)(1) of the Code has complied in form and operation with the requirements of Section 409A of the Code. No current or former employee, director or other service provider is entitled to any gross-up, make-whole or other additional payment from the Company or any of its Subsidiaries in respect will be entitled to any additional material benefits or any acceleration of the time of payment or vesting of any Tax material benefits under any Benefit Plan as a result of the transactions contemplated by this Agreement.
(including Federalxii) During the period beginning on January 1, state1995, local or foreign incomeand ending on the date of this Agreement, excise there has been no change (a) in any actuarial or other Taxes assumption used to calculate funding obligations with respect to any Company Pension Plan or (including Taxes imposed b) in the manner in which contributions to any Company Pension Plan are made or the basis on which such contributions are determined.
(xiii) Except as disclosed on Schedule 2.15, to the knowledge of the Company and based upon its best estimate, any amount that could be received (whether in cash or property or the vesting of property) as a result of any of the transactions contemplated by this Agreement by any employee, officer or director of the Company or any of its affiliates who is a "disqualified individual" (as such term is defined in proposed Treasury Regulation Section 1.280G-1) under any employment, severance or termination agreement, other compensation arrangement or Benefit Plan currently in effect would not be characterized as an "excess parachute payment" (as such term is defined in Section 409A and 4999 280G(B)(1) of the Code). Schedule 2.15 sets forth (i) or interest or penalty related theretothe Company's best estimate of the maximum amount that could be paid to each executive officer of Company as a result of the transactions contemplated by this Agreement under all employment, severance and termination agreements, other compensation arrangements and Benefit Plans currently in effect and (ii) the Company's best estimate of the "base amount" (as such term is defined in Section 280(b)(3) of the Code) for each such executive officer calculated as of the date of this Agreement.
Appears in 2 contracts
Samples: Merger Agreement (Bi Expansion Ii Corp), Merger Agreement (Bird Corp)
Benefit Plans. (a) Section 3.11(a) 4.10 of the Company Disclosure Letter sets forth Schedule contains a true and complete list, as of the date hereof, list of each “employee benefit plan” (within the meaning of section Section 3(3) of the Employee Retirement Income Security Act of 1974 (“ERISA”)), “multiemployer plan” (within the meaning of ERISA section 3(37)) and all stock purchase, stock option, phantom stock or other equity-based planrestricted stock, severance, employment, collective bargaining, change-in-control, fringe benefit, bonus, incentive, deferred compensation and all other employee benefit and compensation plans, agreements, programs, policies or other arrangements, other than a Multiemployer Plan, whether written or oral and whether or not subject to ERISA (including any funding mechanism therefor now in effect or required in ERISA, which is maintained by the future as a result of the transactions contemplated by this Agreement or otherwise)Company, whether formal or informal, written or oral, legally binding or not, under to which any current or former employee, director or consultant of the Company or its Subsidiaries (or any of their dependents) has any present or future right is required to compensation or benefits or the Company or its Subsidiaries has had or has any present or future liability contribute or with respect to which it is otherwise bound (collectivelythe Company or any of its ERISA Affiliates has any liability. All such plans, agreements, programs, policies and arrangements shall be collectively referred to as the “Company Plans.”).
(b) With respect to each Company Plan, the Company has made available to Parent a true and complete accurate copy thereof and, to the extent applicable: (i) any related the current trust agreement or other funding instrument, ; (ii) the most recent IRS determination letter of the Internal Revenue Service (the “IRS”), if applicable, or opinion letter; (iii) any the most recent summary plan description and other written communications (or a description of any oral communications) by the Company or its Subsidiaries to their employees concerning the extent of the benefits provided under a Company Plan, and description; (iv) for the two most recent years (A) the Form 5500 and attached schedules, ; (Bv) audited financial statements, (C) the most recent actuarial valuation reports report; and (Dvi) attorney’s response to an auditor’s request copies of nondiscrimination tests for information.
(b) No Company Plan is subject to Title IV of ERISA or Section 412 of the Code, no Company Plan is a multiemployer plan (within the meaning of Section 3(37) of ERISA), and neither the Company nor any member of its Controlled Group (defined as any organization which is a member of a controlled group of organizations within the meaning of Code Sections 414(b), (c), (m) or (o)) has any liability (direct or contingent) with respect to, and has never incurred any liability (director or contingent) with respect to, any employee benefit plan subject to Title IV of ERISA. No Company Plan provides health or other welfare benefits to former employees of the Company or its Subsidiaries other than health continuation coverage pursuant to COBRApast two years.
(c) With respect to the Company Plans, except to the extent that the inaccuracy of any of the representations set forth in this paragraph (c), individually or in the aggregate, has not been and would not reasonably be expected to be material to the Company and its Subsidiaries, taken as a whole:
(i) each Each Company Plan has been established and complies and has been administered in form and operation in all material respects in accordance with its terms and in compliance with the applicable provisions of applicable LawLegal Requirements including, including without limitation, ERISA and the Code, and all contributions required to be made under the terms of any . Each Company Plan have been timely made;
(ii) each Company Plan which is intended to be qualified under Section 401(a) of the Code has received a favorable determination, advisory determination letter or opinion letter, as applicable, letter from the IRS as to its qualification under Section 401(a) of the Code and the tax-exempt status of any trust which forms a part of such plan under Section 501(a) of the Code, and to the Knowledge of the Company there are no facts and circumstances that it is so qualified and nothing has occurred that would could reasonably be expected to cause result in the loss revocation of such qualified status of such Company Plan;
(iii) there is no Action (including any investigation, audit or other administrative proceeding) by letter except as may be self-corrected pursuant to Revenue Procedure 2003-44 without material liability to 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 Company. To the Knowledge of the Company, threatened, relating no event has occurred and no condition exists that could reasonably be expected to subject the Company Plansor any of its ERISA Affiliates to any material tax, any fiduciaries thereof fine, Lien, penalty or other liability imposed by ERISA or the Code. No non-exempt “prohibited transaction” (as such term is defined in ERISA Section 406 and Section 4975 of the Code) has occurred with respect to their duties any Company Plan. Except as listed on Section 4.10 of the Company Disclosure Schedule, no Company Plan provides post-retirement or post-termination health benefits and none of the Company or any of its ERISA Affiliates has any obligations to provide any post-retirement health benefits, except, in either case, to the extent required by Section 4980B of the Code, Part 6 of Title 1 of ERISA or similar provisions of applicable state law.
(d) With respect to any Company Plans Plan (or the assets of any of the trusts under any of the Company Plans thereof), (i) no actions, suits or claims (other than routine claims for benefits) nor are there pending or threatened in writing, (ii) to the Knowledge of the Company, no facts or circumstances that exist that could reasonably give rise to any such Actions;
(iv) neither the Company nor its Subsidiaries nor any of their Affiliates has incurred any direct or indirect liability under ERISA or the Code in connection with the termination of, withdrawal from or failure to fund, any Company Plan or other retirement plan or arrangement, and no fact or event exists that would reasonably be expected to give rise to any such liability; and
actions, suits or claims (vother than routine claims for benefits), (iii) none of the assets of any Company Plan are invested in employer securities or employer real property and (iv) the Company and its Subsidiaries do not maintain any Company Plan that is a “group health plan” (as such term is defined in Section 5000(b)(1) of the Code) that has not been administered and operated in all respects in compliance with the applicable requirements of Section 601 of ERISA and Section 4980B(b) of the Code, and the Company and its Subsidiaries are not subject to received notice that any liability, including additional contributions, fines, penalties governmental investigation is pending or loss of Tax deductions, as a result of such administration and operation; andthreatened.
(de) None of the Company Plans provides are subject to Title IV of ERISA. With respect to each Company Plan that is subject to Title IV of ERISA, (i) no steps have been taken by the Company or any of its ERISA Affiliates to terminate any such Company Plan, (ii) the material facts underlying the most recently completed actuarial valuation for payment of a benefit, the increase of a benefit amount, the payment of a contingent benefit, the acceleration of a payment or the vesting of a benefit determined or occasioned, in whole or in part, by reason such Company Plan remain true and correct as of the execution date hereof, (iii) all required contributions have been made to such Company Plan in accordance with minimum funding standards of this Agreement Section 412 of the Code and (iv) no proceedings to terminate such Company Plan (or to appoint a trustee to administer any such Company Plan) have been instituted by the PBGC pursuant to Section 4042 of ERISA and no facts exist that could reasonably be expected to result in the institution of such proceedings.
(f) Neither the Company nor any of its ERISA Affiliates has any liability under or with respect to any Multiemployer Plan.
(g) The consummation of the transactions contemplated hereby (either alone or in conjunction with any other event). None of the Company Plans or any other plan agreement or arrangement in effect immediately prior to the Closing could result separately or in the aggregate in connection with the transactions transaction contemplated by this Agreement (either alone will neither entitle any current or in conjunction with former employee or other service provider of the Company or any Company Subsidiary to severance benefits or any other eventpayment (including golden parachute) in the payment of under any “excess parachute payment” within the meaning Company Plan nor cause any amounts payable under any Company Plan to fail to be deductible for federal income tax purposes by virtue of Section 280G of the Code.
(eh) Each All Company Plan Plans that is a “nonqualified deferred compensation plan” within are maintained by the meaning of Section 409A(d)(1) Company or its Subsidiaries outside of the Code has complied in form and operation with United States primarily for the requirements benefit of Section 409A employees of the Code. No current or former employee, director or other service provider is entitled to any gross-up, make-whole or other additional payment from the Company or any of its Subsidiaries working outside of the United States comply in all material respects with applicable Legal Requirements. To the extent that any such Company Plan is, or is required to be, funded, the fair market value of plan assets exceeds the present value of benefit obligations under such Company Plan.
(i) With respect to each of any Tax the Company Plans, all contributions or premium payments due and payable on or before the Closing Date have been timely made, and to the extent not presently payable appropriate reserves have been established for the payment and properly accrued in accordance with customary accounting practices.
(including Federal, state, local or foreign income, excise or other Taxes (including Taxes imposed under j) No Company Plan that is a non-qualified deferred compensation plan subject to Section 409A and 4999 of the Code)Code (“Section 409A”) has been materially modified (within the meaning of Section 409A of the Code ) on or interest or penalty related theretoafter October 3, 2004 and all such non-qualified deferred compensation plans have been operated and administered in good faith compliance with Section 409A of the Code and applicable guidance with respect thereto from the period beginning January 1, 2005 through the date hereof.
(k) The actions described on Section 1.01 of the Company Disclosure Schedule have been taken prior to the date hereof.
Appears in 2 contracts
Samples: Merger Agreement (Carters Inc), Merger Agreement (Oshkosh B Gosh Inc)
Benefit Plans. (a) Section 3.11(a4.13(a) of the Company Disclosure Letter sets forth a true and complete listlists, as of the date hereof, of each “all material employee benefit plan” plans (within the meaning of section as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974 ERISA (“ERISA”)), “multiemployer plan” (within the meaning of ERISA section 3(37)) and all stock purchase, stock option, phantom stock or other equity-based plan, severance, employment, collective bargaining, 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 ERISA)) and all material bonus, stock option, share purchase, restricted share, other equity or equity-based plans, incentive, deferred compensation, retiree medical or life insurance, supplemental retirement, employment, retention, transaction bonus, termination, change in control, severance, health, life, or disability insurance, dependent care or other material benefit plans, programs, policies, arrangements, contracts or agreements (including the Company Employment Agreements), in each case, to which the Company, Company LP or any funding mechanism therefor now in effect Company Subsidiary is a party, with respect to which the Company, Company LP or required in the any Company Subsidiary has or could have any current or future as a result of the transactions contemplated by this Agreement obligation or liability (contingent or otherwise), whether formal or informal, written or oral, legally binding or not, under which any of the current or former employeeemployees, director officers, trustees, directors or consultant independent contractors of the Company, Company LP or its Subsidiaries any Company Subsidiary (or any of their dependents) has any present or future right to compensation or benefits (all such plans, programs, arrangements, contracts or the Company or its Subsidiaries has had or has any present or future liability or with respect to which it is otherwise bound (agreements, collectively, the “Company Benefit Plans”). With respect to each Company Plan, the The Company has made available to Parent a true and complete copy thereof andParent, to the extent applicable, and, to the Knowledge of the Company, true and complete copies of the following with respect to each material Company Benefit Plan: (i) the Company Benefit Plans to the extent in written form (or to the extent not in written form, a written description of all of the material terms of such Company Benefit Plan), (ii) the annual reports (Form 5500s) filed for the most recent plan year, if any, relating to a Company Benefit Plan, (iii) the most recently received IRS determination letter or opinion letter, if any, relating to a Company Benefit Plan, (iv) the most recently prepared actuarial report or financial statement, if any, relating to a Company Benefit Plan, (v) any related trust agreement or other funding instrument, (iivi) the most recent determination letter of the Internal Revenue Service (the “IRS”)prospectus, if applicableany, (iii) any summary plan description for each Company Equity Incentive Plan and other written communications (or a description of any oral communications) by the Company or its Subsidiaries to their employees concerning the extent of the benefits provided under a Company PlanESPP, and (ivvii) all material correspondence with the Department of Labor, the IRS or any other Governmental Authority with respect to any Company Benefit Plan for the two most recent years last three (A3) the Form 5500 and attached schedules, (B) audited financial statements, (C) actuarial valuation reports and (D) attorney’s response to an auditor’s request for informationplan years.
(b) No Each Company Plan is subject to Title IV of ERISA or Section 412 of the Code, no Company Plan is a multiemployer plan (within the meaning of Section 3(37) of ERISA), and neither the Company nor any member of its Controlled Group (defined as any organization which is a member of a controlled group of organizations within the meaning of Code Sections 414(b), (c), (m) or (o)) has any liability (direct or contingent) with respect to, and has never incurred any liability (director or contingent) with respect to, any employee benefit plan subject to Title IV of ERISA. No Company Plan provides health or other welfare benefits to former employees of the Company or its Subsidiaries other than health continuation coverage pursuant to COBRA.
(c) With respect to the Company Plans, except to the extent that the inaccuracy of any of the representations set forth in this paragraph (c), individually or in the aggregate, has not been and would not reasonably be expected to be material to the Company and its Subsidiaries, taken as a whole:
(i) each Company Benefit Plan has been established and administered operated in all material respects in accordance with its terms and in compliance with the requirements of all applicable provisions of applicable LawLaws, including ERISA and the Code, and all contributions required to be made under the terms of any Company Plan have been timely made;.
(iic) each Each Company Benefit Plan that is intended to be qualified under Section 401(a) of the Code has received a favorable determinationdetermination letter from the IRS, advisory or is entitled to rely on a favorable opinion letter issued by the IRS, and, except as would not reasonably be expected to have a Company Material Adverse Effect, no fact or event has occurred since the date of such determination letter or opinion letter, as applicable, letter from the IRS that it is so qualified and nothing has occurred that would reasonably be expected to cause adversely affect the loss of such qualified status of any such Company Benefit Plan;
(iii) there is no Action (including . None of the assets of any investigation, audit or other administrative proceeding) by the Department of Labor, the Pension such Company Benefit Guaranty Corporation, the IRS or any other Governmental Entity or by any plan participant or beneficiary pending, or to the Knowledge Plan are invested in securities of the Company, threatenedCompany LP or any Company Subsidiary, relating to or in employer real property.
(d) None of the Company, Company PlansLP or any Company Subsidiary or any of their ERISA Affiliates have within the last six (6) years (i) sponsored, maintained or had any fiduciaries thereof obligation with respect to their duties an “employee benefit plan” (as defined in Section 3(3) of ERISA) that is subject to the Company Plans provisions of Section 302 or the assets Title IV of any ERISA or Section 412 of the trusts under Code or a “multiemployer plan” within the meaning of Section 3(37) of ERISA or (ii) incurred or reasonably expects to incur any material liability pursuant to Title IV of ERISA, whether contingent or otherwise. Neither the Company, Company Plans (other than routine claims for benefits) nor are there facts or circumstances that exist that could reasonably give rise to LP, any such Actions;
(iv) neither the Company nor its Subsidiaries Subsidiary nor any of their Affiliates ERISA affiliates has incurred any direct obligation with respect to any Company Benefit Plan that provides for any post-employment or indirect liability under ERISA post-retirement health or medical or life insurance benefits for former or current employees of the Code in connection with the termination ofCompany, withdrawal from or failure to fundCompany LP, any Company Plan Subsidiary or any of their ERISA Affiliates except as required by Section 4980B of the Code or similar state Law. No ERISA Affiliate of the Company, Company LP, any Company Subsidiary (other retirement plan than the Company, Company LP or arrangementany Company Subsidiary) in existence on or prior to the Closing shall, and no fact or event exists that would reasonably be expected to give rise to any such liability; and
(v) after the Company and its Subsidiaries do not Closing, maintain any Company Plan that is a “group health plan” (as such term is defined in Section 5000(b)(1) of the Code.
(e) that has not been administered and operated Except as provided in all respects any Company Benefit Plan or Company Employment Agreement, as set forth in compliance with the applicable requirements of Section 601 of ERISA and Section 4980B(b4.13(e) of the Code, and Company Disclosure Letter or as otherwise specifically contemplated by this Agreement with respect to the Company Equity Awards and its Subsidiaries are not subject to any liabilityCompany Look-Back LTI Awards, including additional contributions, fines, penalties or loss of Tax deductions, as a result of such administration and operation; and
(d) None of the Company Plans provides for payment of a benefit, the increase of a benefit amount, the payment of a contingent benefit, the acceleration of a payment or the vesting of a benefit determined or occasioned, in whole or in part, by reason of neither the execution and delivery of this Agreement or nor the consummation of the Mergers and the other transactions contemplated hereby will (either alone or in conjunction with any other eventevent (whether contingent or otherwise). None ) (i) increase the amount or value of, any payment, right or other benefit otherwise due to any current or former employee, officer, trustee, director or other service provider of the Company, Company Plans LP or any Company Subsidiary, (ii) entitle any current or former employee, officer, trustee, director or other service provider of the Company, Company LP or any Company Subsidiary to severance pay or any other plan agreement similar termination payment or arrangement (iii) result in effect immediately prior any amount failing to the Closing could result separately or in the aggregate in connection with the transactions contemplated be deductible by this Agreement (either alone or in conjunction with any other event) in the payment of any “excess parachute payment” within the meaning reason of Section 280G of the Code.
(e) Each Company Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A(d)(1) of the Code has complied in form and operation with the requirements of Section 409A of the Code. No current or former employee, director or other service provider Person is entitled to any gross-up, make-whole or other additional payment from the Company or any of its Subsidiaries in respect of any Tax (including Federal, state, local or foreign income, excise or other Taxes (including Taxes imposed under Section 409A and or Section 4999 of the Code)) Code or any interest or penalty related thereto.
(f) Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect: (i) no non-exempt “prohibited transactions” (as described in Section 406 of ERISA or Section 4975 of the Code) have occurred with respect to any Company Benefit Plan; and (ii) each Company Benefit Plan that is a “nonqualified deferred compensation plan” (as defined under Section 409A(d)(1) of the Code) has been operated and administered in good faith compliance with Section 409A of the Code and related Treasury guidance thereunder.
(g) Section 4.13(g) of the Company Disclosure Letter lists: (i) each outstanding award of Company Restricted Shares, and with respect to each award of Company Restricted Shares, the name of the holder thereof, the additional Company Restricted Shares issuable upon performance in excess of target levels in accordance with the terms of the applicable award agreement or Company Equity Incentive Plan governing such award and such target level and the aggregate cash dividends and other distributions payable with respect to the award pursuant to Section 3.3(d) if the REIT Merger Effective Time were on the date of this Agreement; (ii) each outstanding Company Option, and with respect to each Company Option, the name of the holder thereof (except to the extent that such Company Option is “underwater” relative to the REIT Per Share Merger Consideration), the grant date, exercise price, expiration date, current vesting status and vesting conditions and whether or not the Option was intended to be an “incentive stock option;” (iii) each outstanding Company Look-Back LTI Award, and with respect to each Company Look-Back LTI Award, the name of the grantee thereof, and for the outstanding performance period, the target amount of the performance portion of the award and the stretch amount of the performance portion of the award; and (iv) each Person that is entitled to receive any annual cash incentive under the Company’s applicable annual incentive bonus program and the amount payable thereunder as described in Section 7.15(e). The Company shall, no later than five (5) Business Days prior to the REIT Merger Effective Time, update the information set forth in Section 4.13(g) of the Company Disclosure Letter.
Appears in 2 contracts
Samples: Merger Agreement (Government Properties Income Trust), Merger Agreement (First Potomac Realty Trust)
Benefit Plans. (a) Section 3.11(a4.11(a) of the Company Disclosure Letter sets forth a true complete and complete list, as of the date hereof, accurate list of each Company Plan. For purposes of this Agreement, “Company Plan” means any “employee benefit plan” (within the meaning of section Section 3(3) of the Employee Retirement Income Security Act of 1974 1974, as amended (“ERISA”)), including any “multiemployer plan” (within the meaning of ERISA section Section 3(37)) ), and all any stock purchase, stock option, phantom stock or other equity-based plan, severance, employment, collective bargaining, change-in-control, fringe benefitbenefit (if material), bonus, incentive, deferred compensation and all compensation, employment or other material employee benefit and compensation plansplan, agreementsagreement, programsprogram, policies policy or other arrangementsarrangement, 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), whether formal or informal, written or oralwritten, legally binding or not, under which any current or former employee, director or consultant independent contractor of the Company or its Subsidiaries (or any of their dependents) has any present or future right to compensation or benefits or the Company or its Subsidiaries has had or has any present current or future liability for benefits to or with respect on behalf of any current or former employee director or independent contractor of the Company or its Subsidiaries (including an obligation to which it is otherwise bound (collectively, the “Company Plans”make contributions). With respect to each Company Plan, the Company has furnished or made available to Parent a true current, accurate and complete copy thereof and, to the extent applicable: (i) any all related trust agreement agreements or other funding instrumentinstruments, (ii) the most recent determination letter of the U.S. Internal Revenue Service (the “IRS”), if applicable, (iii) any the current summary plan description and other equivalent written communications (or a description of any oral communications) by the Company or its Subsidiaries to their respective employees concerning the extent of the benefits provided under a Company Plan, and (iv) audited financial reports and Forms 5500 (including all schedules thereto) for the two most recent plan years (A) the Form 5500 ending December 31, 2005, 2006 and attached schedules, (B) audited financial statements, (C) actuarial valuation reports 2007 and (Dv) attorney’s response all material correspondence with any Governmental Entity relating to an auditor’s request for informationany Action or potential Action.
(b) No Company Plan is subject to Title IV of ERISA or Section 412 of the Code, no Company Plan is a multiemployer plan (within the meaning of Section 3(37) of ERISA), and neither the Company nor any member of its Controlled Group (defined as any organization which is a member of a controlled group of organizations within the meaning of Code Sections 414(b), (c), (m) or (o)) has any liability (direct or contingent) with respect to, and has never incurred any liability (director or contingent) with respect to, any employee benefit plan subject to Title IV of ERISA. No Company Plan provides health or other welfare benefits to former employees of the Company or its Subsidiaries other than health continuation coverage pursuant to COBRA.
(c) With respect to the Company Plans, except to the extent that the inaccuracy of any of the representations set forth in this paragraph (c), individually or in the aggregateaggregate as does not have, has not been and would not reasonably be expected to be material to the Company and its Subsidiarieshave, taken as a wholeMaterial Adverse Effect:
(i) except as set forth in Section 4.11(b) of the Company Disclosure Letter, each Company Plan has been established and administered in accordance with its terms and in compliance with the applicable Laws, including provisions of applicable Law, including ERISA and the Code, and no non-exempt prohibited transaction, as described in Section 406 of ERISA or Section 4975 of the Code, or accumulated funding deficiency, as defined in Section 302 of ERISA and Section 412 of the Code, has occurred with respect to any Company Plan, and all contributions required to be made under the terms of any Company Plan have been timely made;
(ii) each Company Plan intended to be qualified under Section 401(a) of the Code has received a favorable determination, advisory or and/or opinion letter, as applicable, from the IRS that it is so qualified (or the deadline for obtaining such a letter has not expired as of the date of this Agreement) and nothing has occurred that would reasonably be expected to cause the loss of such qualified status of any such Company PlanPlan to not be so qualified;
(iii) there is no Action (including any investigation, audit or other administrative proceeding) 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 knowledge of the Company, threatened, relating to the Company Plans, any fiduciaries thereof with respect to their duties to the Company Plans Plans, or to the assets of any of the trusts under any of the Company Plans (other than routine claims for benefits) ), nor are there facts or circumstances that exist that could would reasonably be expected to give rise to any such Actions;
(iv) neither the Company nor its Subsidiaries nor any of their Affiliates has incurred any direct or indirect liability under ERISA or the Code in connection with the termination of, withdrawal from or failure to fund, any if such Company Plan or other retirement plan or arrangement, and no fact or event exists that would reasonably be expected to give rise to any such liability; and
(v) the Company and its Subsidiaries do not maintain any Company Plan that is a “group health plan” (as such term is defined in Section 5000(b)(1) of the Code) that has not been administered and operated in all respects in compliance with the applicable requirements of Section 601 of ERISA and Section 4980B(b) of the Code, and the Company and its Subsidiaries are not subject to any liability, including additional contributions, fines, penalties or loss of Tax deductions, as a result of such administration and operation; and
(d) None of the Company Plans provides for payment of a benefit, the increase of a benefit amount, the payment of a contingent benefit, the acceleration of a payment or the 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 hereby (either alone or in conjunction with any other event). None of the Company Plans or any other plan agreement or arrangement in effect immediately prior to the Closing could result separately or in the aggregate in connection with the transactions contemplated by this Agreement (either alone or in conjunction with any other event) in the payment of any “excess parachute payment” within the meaning of Section 280G of the Code.
(e) Each Company Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A(d)(1) of the Code has complied in form and operation with the requirements of is subject to Section 409A of the Code, then (A) the written terms of such Company Plan have at all times since January 1, 2009 been in compliance with, and (B) such Company Plan has, at all times while subject to Section 409A of the Code, been operated in compliance with, Section 409A of the Code and all applicable guidance thereunder; and
(v) each Company Plan subject to the Laws of any jurisdiction outside of the United States (A) has been maintained and operated in accordance with all applicable requirements of such Laws and (B) if intended to qualify for special Tax treatment, has met all requirements for such treatment.
(c) No Company Plan is subject to Title IV of ERISA, and neither the Company, any of its Subsidiaries, nor any trade or business (whether or not incorporated) which, together with the Company or any of its Subsidiaries, would be treated as a single employer under Section 414 of the Code (each such trade or business, an “ERISA Affiliate” ) has any material liability, whether direct, indirect, contingent or otherwise, under Section 412 of the Code or Title IV of ERISA. No Neither the Company, any of its Subsidiaries, nor any of its ERISA Affiliates has, at any time during the last six years, contributed to or been obligated to contribute to any “multiemployer plan,” as defined in Section 3(37) of ERISA, or any employee benefit plan, program or arrangement that is subject to Title IV of ERISA or Section 412 of the Code.
(d) Neither the Company nor any of its Subsidiaries has any obligations for post-employment health or life benefits for any of their respective retired, former or current employees, except as required by Law or as set forth in Section 4.11(d) of the Company Disclosure Letter.
(e) Neither the Company, any of its Subsidiaries, nor any of its ERISA Affiliates has any material liability, whether known or unknown, direct, indirect, contingent or otherwise, (i) on account of any violation of the health care requirements of Part 6 or 7 of Subtitle B of Title I of ERISA or Section 4980B or 4980D of the Code, or (ii) under Section 502(i) or 502(l) of ERISA.
(f) Except as specifically provided herein or set forth in Section 4.11(f) of the Company Disclosure Letter, the consummation of the Merger and the other transactions contemplated hereby will not, either alone or together with any other event, (i) entitle any current or former employee, director director, or independent contractor of the Company or its Subsidiaries to severance pay, or (ii) accelerate the time of payment or vesting or trigger any payment or funding (whether through a grantor trust or otherwise) of compensation or benefits under, increase the amount allocable or payable or trigger any other service provider material obligation pursuant to, any Company Plan.
(g) Except as set forth in Section 4.11(g) of the Company Disclosure Letter, there is entitled no contract, plan or arrangement (written or otherwise) covering any current or former employee of the Company or its Subsidiaries or any other Person that, individually or in the aggregate, could, as a result of the consummation of the transactions contemplated hereby (either alone or in connection with any other event), give rise to the payment of any gross-up, make-whole or other additional payment from amount that will not be deductible by the Company or any of its Subsidiaries in respect under Section 280G of the Code and no Person is entitled to receive any additional payment as a result of the imposition of any Tax (including Federal, state, local or foreign income, excise or other Taxes (including Taxes imposed tax under Section 409A and 4999 of the Code)) or interest or penalty related thereto.
Appears in 2 contracts
Samples: Merger Agreement (I Flow Corp /De/), Merger Agreement (Kimberly Clark Corp)
Benefit Plans. (a) Section 3.11(a) of the Company Disclosure Letter sets forth a true and complete listEach employee pension benefit plan ("PENSION PLAN"), as of the date hereof, of each “employee benefit plan” (within the meaning of section 3(3defined in Section 3(2) of the Employee Retirement Income Security Act of 1974 (“"ERISA”)"), “multiemployer plan” each employee welfare benefit plan (within the meaning "WELFARE PLAN"), as defined in Section 3 of ERISA section 3(37)) ERISA, and all stock purchase, stock option, phantom stock or other equity-based plan, severance, employment, collective bargaining, change-in-control, fringe benefiteach deferred compensation, bonus, incentive, deferred compensation and all stock incentive, option, stock purchase, severance, or other employee benefit and compensation plansplan, agreementsagreement, programscommitment, policies or other arrangementsarrangement funded or unfunded, whether written or not subject oral ("BENEFIT PLAN"), which is currently maintained by the Company or any of its ERISA Affiliates (defined in Section 3.15(o) below) or to which the Company or any of its ERISA Affiliates currently contributes, or is under any current obligation to contribute, or under which the Company or any of its ERISA Affiliates has any liability, contingent or otherwise (including any funding mechanism therefor now in effect withdrawal liability within the meaning of Section 4201 of ERISA) (collectively, the "COMPANY EMPLOYEE PLANS" and each, individually, a "COMPANY EMPLOYEE PLAN"), and each management, employment, severance, consulting, non-compete or required similar agreement or contract between the Company or any of its Subsidiaries and any Company Employee pursuant to which the Company or any of its Subsidiaries has or may have any liability, contingent or otherwise ("COMPANY EMPLOYEE AGREEMENT"), is listed in the future Company Disclosure Schedule. True and complete copies have been delivered or made available to Buyer of (i) all documents embodying or relating to each Company Employee Plan and each Company Employee Agreement, including all amendments thereto, written interpretations thereof and trust or funding agreements with respect thereto; (ii) the two most recent annual actuarial valuations, if any, prepared for each Company Employee Plan; (iii) a statement of alternative form of compliance pursuant to U.S. Department of Labor ("DOL") Regulation ss.2520.104-23, if any, filed for each Company Employee Plan which is an "employee pension benefit plan" (as defined in Section 3(2) of ERISA) for a result select group of management or highly compensated employees; (iv) the most recent determination letter received from the Internal Revenue Service ("IRS"), if any, for each Company Employee Plan and related trust which is intended to satisfy the requirements of Section 401(a) of the transactions contemplated by this Agreement Code; (v) if a Company Employee Plan is funded, the most recent annual and periodic accounting of the Company Employee Plan assets; (vi) the most recent summary plan description together with the most recent summary of material modifications, if any, required under ERISA with respect to each Company Employee Plan; and (vii) the most recent annual reports (Series 5500 and all schedules thereto) filed for plan years 1998 and 1999, if any, as required under ERISA in connection with each Company Employee Plan or otherwise)related trust. None of the Company, nor any of its Subsidiaries or ERISA Affiliates has any plan or commitment, whether formal or informal, written or oral, legally binding or not, to establish any new Company Employee Plan, to enter into any Company Employee Agreement or to modify or to terminate any Company Employee Plan or Company Employee Agreement (except to the extent required by law or to conform any such Company Employee Plan or Company Employee Agreement to the requirements of any applicable law, in each case as previously disclosed to Buyer, or as required by this Agreement), nor has any intention to do any of the foregoing been communicated to Company Employees.
(b) The Company and each of its ERISA Affiliates has made on a timely basis all contributions or payments required to be made by it under which any current or former employee, director or consultant the terms of the Company Employee Plans, ERISA, the Code, or other applicable laws.
(c) Each Company Employee Plan intended to qualify under Section 401 of the Code is, and since its Subsidiaries inception has been, so qualified and a determination letter has been issued by the IRS to the effect that each such Company Employee Plan is so qualified and that each trust forming a part of any such Company Employee Plan is exempt from tax pursuant to Section 501(a) of the Code and no circumstances exist which would adversely affect this qualification or exemption.
(d) Each Company Employee Plan (and any related trust or other funding instrument) has been established, maintained, and administered in all material respects in accordance with its terms and in both form and operation is in compliance in all material respects with the applicable provisions of ERISA, the Code, and other applicable laws, statutes, orders, rules and regulations (other than adoption of any plan amendments for which the deadline has not yet expired), and all reports required to be filed with any governmental agency with respect to each Company Employee Plan have been timely filed, other than filings that are inconsequential.
(e) There is no litigation, arbitration, audit or investigation or administrative proceeding pending or, to the knowledge of the Company, threatened against the Company or any of their dependents) its ERISA Affiliates or, to the knowledge of the Company, any plan fiduciary by the IRS, the DOL, the Pension Benefit Guaranty Corporation ("PBGC"), or any participant or beneficiary with respect to any Company Employee Plan as of the date of this Agreement. No event or transaction has occurred with respect to any present Company Employee Plan that would result in the imposition of any tax under Chapter 43 of Subtitle D of the Code. Neither the Company nor any of its ERISA Affiliates nor, to the knowledge of the Company, any plan fiduciary of any Pension or future right to compensation or benefits or Welfare Plan maintained by the Company or its Subsidiaries has had engaged in any transaction in violation of Section 406(a) or has any present or future liability or with respect to which it is otherwise bound (collectively, the “Company Plans”). With respect to each Company Plan, the Company has made available to Parent a true and complete copy thereof and, to the extent applicable: (i) any related trust agreement or other funding instrument, (ii) the most recent determination letter of the Internal Revenue Service (the “IRS”), if applicable, (iii) any summary plan description and other written communications (or a description of any oral communications) by the Company or its Subsidiaries to their employees concerning the extent of the benefits provided under a Company Plan, and (iv) for the two most recent years (A) the Form 5500 and attached schedules, (B) audited financial statements, (C) actuarial valuation reports and (D) attorney’s response to an auditor’s request for information.
(b) No Company Plan is subject to Title IV of ERISA for which no exemption exists under Section 408 of ERISA or any "prohibited transaction" (as defined in Section 412 4975(c)(1) of the Code) for which no exemption exists under Section 4975(c)(2) or 4975(d) of the Code, no or is subject to any excise tax imposed by the Code or ERISA with respect to any Company Employee Plan.
(f) Each Company Employee Plan can be amended, terminated or otherwise discontinued without liability to the Company, any of its Subsidiaries or any of its ERISA Affiliates.
(g) No liability under any Company Employee Plan has been funded, nor has any such obligation been satisfied with the purchase of a contract from an insurance company as to which the Company or any of its Subsidiaries has received notice that such insurance company is a multiemployer plan insolvent or is in rehabilitation or any similar proceeding.
(within the meaning of Section 3(37h) of ERISA), and neither Neither the Company nor any member of its Controlled Group (defined as ERISA Affiliates currently maintains, nor at any organization which is a member of a controlled group of organizations within time in the meaning of Code Sections 414(b), (c), (m) previous six calendar years maintained or (o)) has any liability (direct or contingent) with respect to, and has never incurred any liability (director or contingent) with respect had an obligation to contribute to, any employee defined benefit pension plan subject to Title IV of ERISA. No , or any "multiemployer plan" as defined in Section 3(37) of ERISA.
(i) None of the Company, nor any of its Subsidiaries or ERISA Affiliates (i) maintains or contributes to any Company Employee Plan provides health which provides, or has any liability to provide, life insurance, medical, severance or other employee welfare benefits to former employees any Company Employee upon his retirement or termination of employment, except as may be required by Section 4980B of the Code; or (ii) has ever represented, promised or contracted (whether in oral or written form) to any Company Employee (either individually or its Subsidiaries to Company Employees as a group) that such Company Employee(s) would be provided with life insurance, medical, severance or other than health continuation coverage pursuant to COBRA.
(c) With respect to the Company Plansemployee welfare benefits upon their retirement or termination of employment, except to the extent that required by Section 4980B of the inaccuracy Code.
(j) The execution of, and performance of the transactions contemplated in, this Agreement will not (either alone or upon the occurrence of any additional or subsequent events) (i) constitute an event under any Company Employee Plan, Company Employee Agreement, trust or loan that will or may result in any payment (whether of severance pay or otherwise), acceleration, forgiveness of indebtedness, vesting, distribution, increase in benefits or obligation to fund benefits with respect to any Company Employee, or (ii) result in the triggering or imposition of any restrictions or limitations on the right of the representations set forth in this paragraph Company or Buyer to amend or terminate any Company Employee Plan and receive the full amount of any excess assets remaining or resulting from such amendment or termination, subject to applicable taxes.
(c)k) There is no commitment covering any Company Employee that, individually or in the aggregate, has not been and would not be reasonably be expected to be material to the Company and its Subsidiaries, taken as a whole:
(i) each Company Plan has been established and administered in accordance with its terms and in compliance with the applicable provisions of applicable Law, including ERISA and the Code, and all contributions required to be made under the terms of any Company Plan have been timely made;
(ii) each Company Plan intended to be qualified under Section 401(a) of the Code has received a favorable determination, advisory or opinion letter, as applicable, from the IRS that it is so qualified and nothing has occurred that would reasonably be expected to cause the loss of such qualified status of such Company Plan;
(iii) there is no Action (including any investigation, audit or other administrative proceeding) 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 the Company, threatened, relating to the Company Plans, any fiduciaries thereof with respect to their duties to the Company Plans or the assets of any of the trusts under any of the 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;
(iv) neither the Company nor its Subsidiaries nor any of their Affiliates has incurred any direct or indirect liability under ERISA or the Code in connection with the termination of, withdrawal from or failure to fund, any Company Plan or other retirement plan or arrangement, and no fact or event exists that would reasonably be expected likely to give rise to any such liability; and
(v) the Company and its Subsidiaries do not maintain any Company Plan that is a “group health plan” (as such term is defined in Section 5000(b)(1) of the Code) that has not been administered and operated in all respects in compliance with the applicable requirements of Section 601 of ERISA and Section 4980B(b) of the Code, and the Company and its Subsidiaries are not subject to any liability, including additional contributions, fines, penalties or loss of Tax deductions, as a result of such administration and operation; and
(d) None of the Company Plans provides for payment of a benefit, the increase of a benefit amount, the payment of a contingent benefit, the acceleration of a payment or the 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 hereby (either alone or in conjunction with any other event). None of the Company Plans or any other plan agreement or arrangement in effect immediately prior to the Closing could result separately or in the aggregate in connection with the transactions contemplated by this Agreement (either alone or in conjunction with any other event) in the payment of any “excess parachute payment” within the meaning amount that would result in a material loss of tax deductions pursuant to Section 280G 162(m) of the Code.
(el) Each The Company Plan that and each of its Subsidiaries (i) is a “nonqualified deferred compensation plan” within the meaning in compliance with all applicable federal, state and local laws, rules and regulations (domestic and foreign) respecting employment, employment practices, labor, terms and conditions of Section 409A(d)(1employment and wages and hours, in each case, with respect to Company Employees; (ii) is not liable for any arrears of wages or any penalty for failure to comply with any of the Code has complied in form foregoing; and operation with the requirements of Section 409A of the Code. No current or former employee, director (iii) is not liable for any past due payment to any trust or other service provider is entitled fund or to any gross-upgovernmental or administrative authority, make-whole with respect to unemployment compensation benefits, social security or other additional payment from benefits for Company Employees.
(m) No work stoppage or labor strike against the Company or any of its Subsidiaries by Company Employees is pending or threatened. Neither the Company nor any of its Subsidiaries (i) is involved in respect or threatened with any labor dispute, grievance, or litigation relating to labor matters involving any Company Employees, including violation of any Tax federal, state or local labor, safety or employment laws (including Federaldomestic or foreign), statecharges of unfair labor practices or discrimination complaints, local other than such disputes, grievances or foreign incomelitigation that are inconsequential; (ii) is engaged in any unfair labor practices within the meaning of the National Labor Relations Act or the Railway Labor Act; or (iii) is presently, excise nor has been in the past six years, a party to, or other Taxes bound by, any collective bargaining agreement or union contract with respect to Company Employees and no such agreement or contract is currently being negotiated by the Company or any of its affiliates. No Company Employees are currently represented by any labor union for purposes of collective bargaining and, to the knowledge of the Company, no activities the purpose of which is to achieve such representation of all or some of such Company Employees are threatened or ongoing.
(including Taxes imposed n) Neither the Company nor any of its ERISA Affiliates has any liability with respect to any plan, program, or arrangement maintained or contributed to by any ERISA Affiliate that would be a Company Employee Plan if it were maintained by the Company.
(o) For purposes of this Agreement, "ERISA AFFILIATE" means, with respect to the Company and its Subsidiaries or Buyer and it Subsidiaries, as applicable, each trade, business or entity which is a member of a "controlled group of corporations," under Section 409A "common control" or an "affiliated service group" with the Company and 4999 its Subsidiaries or Buyer and its Subsidiaries, as applicable, within the meaning of Sections 414(b), (c) or (m) of the Code, or required to be aggregated with the Company and its Subsidiaries or Buyer and its Subsidiaries, as applicable, under Section 414(o) of the Code, or is under "common control" with the Company and its Subsidiaries or Buyer and its Subsidiaries, as applicable, within the meaning of Section 4001(a)(14)) or interest or penalty related thereto.
Appears in 2 contracts
Samples: Merger Agreement (Diker Charles M), Merger Agreement (Cantel Medical Corp)
Benefit Plans. (ai) Section 3.11(aEach Benefit Plan intended to be tax qualified under Sections 401(a) and 501(a) of the Company Disclosure Letter sets forth a true and complete listInternal Revenue Code of 1986, as amended (the "CODE")
(i) has been determined by the Internal Revenue Service (the "IRS") to be tax qualified under Sections 401(a) and 501(a) of the date hereofCode and, since such determination, no amendment to or failure to amend any such Benefit Plan and no other event or circumstance has occurred that could reasonably be expected to adversely affect its tax qualified status, and (ii) has or will be submitted to the IRS for a determination that it continues to be tax qualified in accordance with GUST (as defined in Revenue Procedure 2001-55, 2001-49 I.R.B. 552 (Nov. 15, 2001)) before the end of each “employee benefit plan” the GUST remedial amendment period (as set forth in that same Revenue Procedure or subsequent guidance from the IRS). There have been no prohibited transactions within the meaning of section 3(3) Section 4975 of the Code or Section 406 of Title I of the Employee Retirement Income Security Act of 1974 1974, as amended (“"ERISA”)"), “multiemployer with respect to any Benefit Plan, except to the extent there is an exemption available under Section 4975(d) of the Code or Section 408 of ERISA, or a class or individual exemption issued by the Department of Labor. For purposes of this Agreement, "BENEFIT PLAN" shall mean any pension, retirement, savings, deferred compensation or profit-sharing plan” (within the meaning of ERISA section 3(37)) and all , any stock option, stock appreciation, stock purchase, stock optionperformance share, phantom stock bonus or other equity-based incentive plan, severanceseverance plan, employmenthealth, collective bargaininggroup insurance or other welfare plan, change-in-control, fringe benefit, bonus, incentive, deferred compensation or other similar plan (whether written or otherwise) and all other any "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 or required in the future as a result of the transactions contemplated by this Agreement or otherwise), whether formal or informal, written or oral, legally binding or not, under which any current or former employee, director or consultant of the Company or its Subsidiaries (or any of their dependents) has any present or future right to compensation or benefits or the Company or its Subsidiaries has had or has any present or future liability or with respect to which it is otherwise bound (collectively, the “Company Plans”). With respect to each Company Plan, the Company has made available to Parent a true and complete copy thereof and, to the extent applicable: (i) any related trust agreement or other funding instrument, (ii) the most recent determination letter of the Internal Revenue Service (the “IRS”), if applicable, (iii) any summary plan description and other written communications (or a description of any oral communications) by the Company or its Subsidiaries to their employees concerning the extent of the benefits provided under a Company Plan, and (iv) for the two most recent years (A) the Form 5500 and attached schedules, (B) audited financial statements, (C) actuarial valuation reports and (D) attorney’s response to an auditor’s request for information.
(b) No Company Plan is subject to Title IV of ERISA or Section 412 of the Code, no Company Plan is a multiemployer plan (plan" within the meaning of Section 3(373(3) of ERISA), and neither under which the Company nor any member of its Controlled Group (defined as any organization which is a member of a controlled group of organizations within the meaning of Code Sections 414(b), (c), (m) or (o)) has any current or future obligation or liability (direct including any potential, contingent or contingent) with respect to, and has never incurred any secondary liability (director or contingent) with respect to, any employee benefit plan subject to under Title IV of ERISA. No Company Plan provides health ) or other welfare benefits to under which any employee or former employees employee (or beneficiary of any employee or former employee) of the Company has or its Subsidiaries other than health continuation coverage pursuant may have any current or future right to COBRA.
benefits (c) With respect to the Company Plansterm "plan" shall include any contract, except to the extent that the inaccuracy of any of the representations set forth in this paragraph agreement (cincluding an employment or independent contractor agreement), individually policy or in the aggregate, has not been and would not reasonably be expected to be material to the Company and its Subsidiaries, taken as a whole:
(i) each Company Plan has been established and administered in accordance with its terms and in compliance with the applicable provisions of applicable Law, including ERISA and the Code, and all contributions required to be made under the terms of any Company Plan have been timely made;
(ii) each Company Plan intended to be qualified under Section 401(a) of the Code has received a favorable determination, advisory or opinion letter, as applicable, from the IRS that it is so qualified and nothing has occurred that would reasonably be expected to cause the loss of such qualified status of such Company Plan;
(iii) there is no Action (including any investigation, audit or other administrative proceeding) 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 the Company, threatened, relating to the Company Plans, any fiduciaries thereof with respect to their duties to the Company Plans or the assets of any of the trusts under any of the 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;
(iv) neither the Company nor its Subsidiaries nor any of their Affiliates has incurred any direct or indirect liability under ERISA or the Code in connection with the termination of, withdrawal from or failure to fund, any Company Plan or other retirement plan or arrangement, and no fact or event exists that would reasonably be expected to give rise to any such liability; and
(v) the Company and its Subsidiaries do not maintain any Company Plan that is a “group health plan” (as such term is defined in Section 5000(b)(1) of the Code) that has not been administered and operated in all respects in compliance with the applicable requirements of Section 601 of ERISA and Section 4980B(b) of the Code, and the Company and its Subsidiaries are not subject to any liability, including additional contributions, fines, penalties or loss of Tax deductions, as a result of such administration and operation; and
(d) None of the Company Plans provides for payment of a benefit, the increase of a benefit amount, the payment of a contingent benefit, the acceleration of a payment or the 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 hereby (either alone or in conjunction with any other event). None of the Company Plans or any other plan agreement or arrangement in effect immediately prior to the Closing could result separately or in the aggregate in connection with the transactions contemplated by this Agreement (either alone or in conjunction with any other event) in the payment of any “excess parachute payment” within the meaning of Section 280G of the Codeunderstanding.
(e) Each Company Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A(d)(1) of the Code has complied in form and operation with the requirements of Section 409A of the Code. No current or former employee, director or other service provider is entitled to any gross-up, make-whole or other additional payment from the Company or any of its Subsidiaries in respect of any Tax (including Federal, state, local or foreign income, excise or other Taxes (including Taxes imposed under Section 409A and 4999 of the Code)) or interest or penalty related thereto.
Appears in 2 contracts
Samples: Securities Purchase Agreement (Clearwire Corp), Securities Purchase Agreement (Clearwire Corp)
Benefit Plans. (a) Section 3.11(aSection 4.12(a) of the Company Disclosure Letter sets forth contains a true and complete list, as of the date hereof, list of each material “employee benefit plan” (within the meaning of section 3(3) of the Employee Retirement Income Security Act of 1974 1974, as amended (“ERISA”), whether or not subject to ERISA), “multiemployer planplans” (within the meaning of ERISA section 3(37)) ), and all stock purchase, stock option, phantom stock or other equity-based plan, severance, employment, collective bargaining, change-in-control, fringe benefit, bonus, incentive, deferred compensation compensation, supplemental retirement, health, life, or disability insurance, dependent care 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 or required in the future as a result of the transactions contemplated by this Agreement or otherwise), whether formal or informal, written or oral, legally binding or not, under which any current or former employee, director or consultant of the Company or any of its Subsidiaries (or any of their dependents) has any present or future right to compensation or benefits or the Company or any of its Subsidiaries has had sponsors or maintains, is making contributions to or has any present or future liability or obligation (contingent or otherwise) or with respect to which it is otherwise bound (collectivelybound. All such plans, agreements, programs, policies and arrangements shall be collectively referred to as the “Company Plans”).” The Company has provided or made available to Parent a current, accurate and complete copy of each material Company Plan, or if such Company Plan is not in written form, a written summary of all of the material terms of such Company Plan. With respect to each Company Plan, the Company has furnished or made available to Parent a true current, accurate and complete copy thereof andof, to the extent applicable: (i) any related trust agreement or other funding instrument, (ii) the most recent determination letter of the Internal Revenue Service (the “IRS”), if applicable, (iii) any summary plan description description, summary of material modifications, and other similar material written communications (or a written description of any material oral communications) by to the employees of the Company or any of its Subsidiaries to their employees concerning the extent of the benefits provided under a Company Plan, Plan and (iv) for the two three most recent years and as applicable (A) the Form 5500 and attached schedules, (B) audited financial statements, statements and (C) actuarial valuation reports and (D) attorney’s response to an auditor’s request for informationreports.
(b) No Company Plan is subject to Title IV of ERISA Neither the Company, its Subsidiaries or Section 412 of the Code, no Company Plan is a multiemployer plan (within the meaning of Section 3(37) of ERISA), and neither the Company nor any member of its their Controlled Group (defined as any organization which is a member of a controlled controlled, affiliated or otherwise related group of organizations entities within the meaning of Code Sections 414(b), (c), (m) or (o)) has ever sponsored, maintained, contributed to or been required to contribute to or incurred any liability (direct contingent or contingentotherwise) with respect to: (i) a “multiemployer plan” (within the meaning of ERISA section 3(37)), and has never incurred any liability (director or contingentii) with respect to, any an “employee pension benefit plan plan,” within the meaning of Section 3(2) of ERISA (“Pension Plan”) that is subject to Title IV of ERISA. No Company Plan provides health ERISA or other welfare benefits to former employees Section 412 of the Company Code, (iii) a Pension Plan which is a “multiple employer plan” as defined in Section 413 of the Code, or its Subsidiaries other than health continuation coverage pursuant to COBRA(iv) a “funded welfare plan” within the meaning of Section 419 of the Code.
(c) With respect to the Company Plans, except to the extent that the inaccuracy of any of the representations set forth in this paragraph (c), individually or in the aggregate, has not been and would not reasonably be expected to be material to the Company and its Subsidiaries, taken as a whole:
(i) each Company Plan has been established and administered complies in accordance all material respects with its terms and materially complies in compliance form and in operation with the applicable provisions of applicable Law, including ERISA and the Code, Code and all contributions required to be made under the terms of any Company Plan have been timely madeother applicable legal requirements;
(ii) each Company Plan intended to be qualified under Section 401(a) of the Code has received a favorable determination, advisory or and/or opinion letter, as applicable, from the IRS that it is so qualified and nothing has occurred to the knowledge of the Company since the date of such letter that would reasonably be expected to cause the loss of the sponsor’s ability to rely upon such letter, and nothing has occurred to the knowledge of the Company that would reasonably be expected to result in the loss of the qualified status of such Company Plan;
(iii) there is no material Action (including any investigation, audit or other administrative proceeding) by the Department of Labor, the Pension Benefit Guaranty CorporationCorporation (the “PBGC”), the IRS or any other Governmental Entity or by any plan participant or beneficiary pending, or to the Knowledge knowledge of the Company, threatened, relating to the Company Plans, any fiduciaries thereof with respect to their duties to the Company Plans or the assets of any of the trusts under any of the Company Plans (other than routine claims for benefits) nor nor, to the knowledge of the Company, are there facts or circumstances that exist that could reasonably give rise to any such Actionsactions;
(iv) neither none of the Company nor its Subsidiaries nor Plans currently provides, or reflects or represents any of their Affiliates has incurred any direct liability to provide post-termination or indirect liability under ERISA or the Code in connection with the termination of, withdrawal from or failure to fund, any Company Plan or other retirement plan or arrangement, and no fact or event exists that would reasonably be expected to give rise retiree welfare benefits to any such liability; and
(v) the Company and its Subsidiaries do not maintain person for any Company Plan that is a “group health plan” (reason, except as such term is defined in may be required by Section 5000(b)(1) of the Code) that has not been administered and operated in all respects in compliance with the applicable requirements of Section 601 601, et seq. of ERISA and Section 4980B(b) of the CodeCode or other applicable similar law regarding health care coverage continuation (collectively “COBRA”), and none of the Company, its Subsidiaries or any members of its Controlled Group has any liability to provide post-termination or retiree welfare benefits to any person or ever represented, promised or contracted to any employee or former employee of the Company and or any of its Subsidiaries are not subject (either individually or to any liability, including additional contributions, fines, penalties or loss of Tax deductions, employees as a result of group) or any other person that such administration and operationemployee(s) or other person would be provided with post-termination or retiree welfare benefits, except to the extent required by statute or except with respect to a contractual obligation to reimburse any premiums such person may pay in order to obtain health coverage under COBRA;
(v) each Company Plan is subject exclusively to United States Law; and
(dvi) None of the Company Plans provides for payment of a benefit, the increase of a benefit amount, the payment of a contingent benefit, the acceleration of a payment or the vesting of a benefit determined or occasioned, in whole or in part, by reason of the execution and delivery of this Agreement or and the consummation of the transactions contemplated hereby (Merger will not, either alone or in conjunction combination with any other event). None , (A) entitle any current or former employee, officer, director or consultant of the Company Plans or any of its Subsidiaries to severance pay, unemployment compensation or any other similar termination payment, or (B) accelerate the time of payment or vesting, or increase the amount of or otherwise enhance any benefit due any such employee, officer, director or consultant.
(d) Neither the Company nor any of its Subsidiaries is a party to any agreement, contract, arrangement or plan agreement or arrangement in effect immediately prior (including any Company Plan) that may reasonably be expected to the Closing could result result, separately or in the aggregate aggregate, in connection with the transactions contemplated by this Agreement (either alone or in conjunction combination with any other event) events), in the payment of any “excess parachute paymentpayments” within the meaning of Section 280G of the Code. There is no agreement, plan or other arrangement to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries is otherwise bound to compensate any person in respect of Taxes or other liabilities incurred with respect to Section 409A or 4999 of the Code.
(e) Each Company Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A(d)(1) 409A of the Code has complied (or any comparable or similar provision of state, local, or foreign Law) complies in both form and operation in all material respects with the requirements of Section 409A of the Code. No current Code (or former employeeany comparable or similar provision of state, director local, or other service provider is entitled foreign Law) and all applicable IRS guidance issued with respect thereto (and has so complied for the entire period during which Section 409A of the Code has applied to such Company Plan) so that no amount paid or payable pursuant to any gross-up, make-whole such Company Plan is subject to any additional Tax or other additional payment from the Company or any of its Subsidiaries in respect of any Tax (including Federal, state, local or foreign income, excise or other Taxes (including Taxes imposed interest under Section 409A and 4999 of the CodeCode (or any comparable or similar provision of state, local, or foreign Law)) or interest or penalty related thereto.
Appears in 2 contracts
Samples: Merger Agreement (Kintara Therapeutics, Inc.), Merger Agreement (Kintara Therapeutics, Inc.)
Benefit Plans. (a) Section 3.11(a) of the Company Disclosure Letter sets forth a true and complete list, as of the date hereof, of each All “employee benefit planplans” (within the meaning of section 3(3) of the Employee Retirement Income Security Act of 1974 1974, as amended (“ERISA”)), “multiemployer plan” (within the meaning of ERISA section 3(37)) and all stock purchase, stock option, phantom stock or other equity-based plan, severance, employment, collective bargaining, change-in-control, fringe benefit, bonus, incentive, deferred compensation compensation, employee loan, and all other employee benefit and compensation plans, agreements, programs, policies or other arrangements, and 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), whether formal or informal, written or oral, legally binding or notERISA, under which any current or employee, former employee, director director, officer, independent contractor or consultant of the Company or its Subsidiaries (or any of their dependents) has any present or future right to compensation or benefits or the under which Company or its Subsidiaries has had or has any present or future liability or with respect are referred to which it is otherwise bound (collectively, herein as the “Company Plans”). .” Each material Company Plan is identified on Section 3.11(a) of the Company Disclosure Letter.
(b) With respect to each material Company Plan, the Company has furnished or made available to Parent Purchaser a true current, accurate and complete copy thereof and, to 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 (the “IRS”), if applicable, (iii) any the most recent summary plan description and other written communications (or a description of any oral communications) by the Company or its Subsidiaries to their employees concerning the extent of the benefits provided under a Company Plandescription, and (iv) for the two most recent years year (A) the Form 5500 and attached schedules, (B) audited financial statements, statements and (C) actuarial valuation reports and (D) attorney’s response to an auditor’s request for information.
(b) No Company Plan is subject to Title IV of ERISA or Section 412 of the Code, no Company Plan is a multiemployer plan (within the meaning of Section 3(37) of ERISA), and neither the Company nor any member of its Controlled Group (defined as any organization which is a member of a controlled group of organizations within the meaning of Code Sections 414(b), (c), (m) or (o)) has any liability (direct or contingent) with respect to, and has never incurred any liability (director or contingent) with respect to, any employee benefit plan subject to Title IV of ERISA. No Company Plan provides health or other welfare benefits to former employees of the Company or its Subsidiaries other than health continuation coverage pursuant to COBRAreports.
(c) With respect to the each Company PlansPlan, except to the extent that the inaccuracy of any of the representations set forth in this paragraph (c)Section 3.11, individually or in the aggregate, has have not been and would not reasonably be expected to be material to the had a Company and its Subsidiaries, taken as a wholeMaterial Adverse Effect:
(i) each Company Plan has been established and administered in accordance with its terms and in compliance with the applicable provisions of applicable Law, including ERISA and the CodeCode and other applicable Law, and all contributions required to be made under the terms of any Company Plan have been timely made;
(ii) each Company Plan intended to be qualified under Section 401(a) of the Code (A) has received a favorable determination, advisory or and/or opinion letter, as applicable, from the IRS that it is so qualified and and, to the knowledge of Company, nothing has occurred since the date of such letter that would reasonably be expected to cause the loss of such qualified status of such Company PlanPlan or (B) is a volume submitter or prototype plan whose sponsor obtained a favorable opinion letter and on which letter Company is permitted to rely;
(iii) there is no Action (including any investigation, audit or other administrative proceeding) by the Department of Labor, the Pension Benefit Guaranty CorporationPBGC, the IRS or any other Governmental Entity or by any plan participant or beneficiary pendingpending or, or to the Knowledge knowledge of the Company, threatened, threatened relating to the Company Plans, any fiduciaries thereof with respect to their duties to the Company Plans or the assets of any of the trusts under any of the Company Plans (other than routine claims for benefits) nor nor, to the knowledge of Company, are there facts or circumstances that exist that could reasonably give rise to any such Actions;, and 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) neither to the Company nor its Subsidiaries nor any knowledge of their Affiliates has incurred any direct or indirect liability under ERISA or the Code in connection with the termination ofCompany, withdrawal from or failure to fund, any Company Plan or other retirement plan or arrangement, and no fact or event exists that would reasonably be expected to give rise to any such liability; and
(v) the Company and its Subsidiaries do not maintain any Company Plan that is a “group health planreportable event” (as such term is defined in Section 5000(b)(14043 of ERISA) that could reasonably be expected to result in liability; no nonexempt “prohibited transaction” (as such term is defined in Section 406 of ERISA and Section 4975 of the Code); and no “accumulated funding deficiency” (as defined in Section 302 of ERISA and Section 412 of the Code) that has not been administered and operated in all respects in compliance with or failure to timely satisfy any “minimum funding standard” (within the applicable requirements meaning of Section 601 302 of ERISA and or Sections 412 or 430 of the Code), in each case whether or not waived, has occurred with respect to any Company Plan.
(d) (i) Each Company Plan pursuant to which the Company or any of its Subsidiaries could incur any current or projected liability in respect of post-employment or post-retirement health, medical, or life insurance benefits for current, former, or retired employees of the Company or any of its Subsidiaries (except as required to avoid an excise tax under Section 4980B(b4980B of the Code or otherwise except as may be required by applicable Law) (“Retiree Medical Benefits”) is identified in Section 3.11(e) of the CodeCompany 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 and or its Subsidiaries are not subject without liability to the Company or its Subsidiaries.
(e) Neither Company nor any of its Subsidiaries is a party to any liabilityContract that will, including additional contributionsdirectly or in combination with other events, finesresult, penalties separately or loss in the aggregate, in the payment, acceleration or enhancement of Tax deductions, any benefit as a result of such administration the transactions contemplated by this Agreement, and operation; and
(d) None of the Company Plans provides for payment of a benefit, the increase of a benefit amount, the payment of a contingent benefit, the acceleration of a payment or the vesting of a benefit determined or occasioned, in whole or in part, by reason of neither the execution of this Agreement, Company shareholder approval of this Agreement or nor the consummation of the transactions contemplated hereby will (either alone A) result in severance pay or any increase in conjunction with severance pay upon any termination of employment after the date of this Agreement, (B) 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 the amount payable or result in any other event). None material obligation to, any of the Company Plans Plans, (C) limit or restrict the right of the Company to merge, amend, or terminate any other plan agreement of the Company Plans, or arrangement in effect immediately prior to the Closing could (D) result separately or in the aggregate in connection with the transactions contemplated by this Agreement (either alone or in conjunction with any other event) in the payment of any “excess parachute payment” within the meaning of payments which would not be deductible under Section 280G of the Code.
(e) Each Company Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A(d)(1) of the Code has complied in form and operation with the requirements of Section 409A of the Code. No current or former employee, director or other service provider is entitled to any gross-up, make-whole or other additional payment from the Company or any of its Subsidiaries in respect of any Tax (including Federal, state, local or foreign income, excise or other Taxes (including Taxes imposed under Section 409A and 4999 of the Code)) or interest or penalty related thereto.
Appears in 2 contracts
Samples: Merger Agreement (Whitney Holding Corp), Merger Agreement (Hancock Holding Co)
Benefit Plans. (a) Section 3.11(a3.12(a) of the Company Disclosure Letter sets forth a true and complete list, as of the date hereof, of each “employee benefit plan” (within the meaning of section 3(3) of the Employee Retirement Income Security Act of 1974 (“ERISA”)), “multiemployer plan” (within the meaning of ERISA section 3(37)) and all stock purchase, stock option, phantom stock or other equity-based plan, severance, employment, collective bargaining, 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 or required in the future as a result of the transactions contemplated by this Agreement or otherwise), whether formal or informal, written or oral, legally binding or not, under which any current or former employee, director or consultant of the material Company or its Subsidiaries (or any of their dependents) has any present or future right to compensation or benefits or the Company or its Subsidiaries has had or has any present or future liability or with respect to which it is otherwise bound (collectively, the “Company Plans”)Benefit Plan. With respect to each material Company Benefit Plan, the Company has made available available, upon request, to Parent a true GX complete and complete copy thereof accurate copies of (i) such Company Benefit Plan and, to the extent applicable: (i) any related trust agreement or other funding instrument, a summary plan description thereof, (ii) the most recent determination letter of the Internal Revenue Service (the “IRS”)audited financial statements and actuarial or other valuation reports prepared with respect thereto, if applicable, (iii) if the Company Benefit Plan is funded through a trust or any other funding arrangement, a copy of such trust or other funding arrangement; (iv) each current ERISA summary plan description and other written communications summary of material modifications, if any, (or a description of v) the three most recently filed Annual Reports on Form 5500, (vi) all material non-routine correspondence to and from any oral communicationsgovernmental authority within the last three (3) by the Company or its Subsidiaries to their employees concerning the extent of the benefits provided under a Company Planyears, if any, and (iv) for the two most recent years (A) the Form 5500 and attached schedules, (B) audited financial statements, (C) actuarial valuation reports and (D) attorney’s response to an auditor’s request for information.
(b) No Company Plan is subject to Title IV of ERISA or Section 412 of the Code, no Company Plan is a multiemployer plan (within the meaning of Section 3(37) of ERISA), and neither the Company nor any member of its Controlled Group (defined as any organization which is a member of a controlled group of organizations within the meaning of Code Sections 414(b), (c), (m) or (o)) has any liability (direct or contingentvii) with respect to, and has never incurred any liability (director or contingent) with respect to, any employee benefit plan subject to Title IV of ERISA. No Company Plan provides health or other welfare benefits to former employees of the Company or its Subsidiaries other than health continuation coverage pursuant to COBRA.
(c) With respect to the Company Plans, except to the extent that the inaccuracy of any of the representations set forth in this paragraph (c), individually or in the aggregate, has not been and would not reasonably be expected to be material to the Company and its Subsidiaries, taken as a whole:
(i) each Company Plan has been established and administered in accordance with its terms and in compliance with the applicable provisions of applicable Law, including ERISA and the Code, and all contributions required to be made under the terms of any Company Plan have been timely made;
(ii) each Company Benefit Plan intended to be qualified under Section 401(a) of the Code has Code, the most recently received a favorable determination, advisory IRS determination or opinion letter.
(i) Each of the Company Benefit Plans has been operated and administered in compliance with its terms and in accordance with applicable Laws, as applicableincluding ERISA, from the IRS that it is so qualified Code and nothing has occurred that would reasonably be expected in each case the regulations thereunder, in all material respects, (ii) no Company Benefit Plan provides welfare benefits, including death or medical benefits (whether or not insured), with respect to cause current or former employees or directors of the loss Company or the Company Subsidiaries beyond their retirement or other termination of such qualified status service, other than coverage mandated by the Consolidated Omnibus Budget Reconciliation Act of such Company Plan;
1985 or comparable U.S. state law, (iii) there is no Action (including any investigationall contributions, audit distributions or other administrative proceeding) amounts that are due by the Department Company or the Company Subsidiaries as of Laborthe Closing pursuant to each Company Benefit Plan and any Multiemployer Plan, Multiple Employer Plan or MEWA to which the Pension Benefit Guaranty Corporation, the IRS Company or any other Governmental Entity of the Company Subsidiaries is obligated to contribute in respect of current or by prior plan years have been timely paid in accordance with the terms of each such applicable plan and applicable Laws or, to the extent not yet due, have been accrued in accordance with GAAP, (iv) neither the Company nor any plan participant of the Company Subsidiaries has engaged in a transaction in connection with which the Company or beneficiary pendingthe Company Subsidiaries could be subject to material liability from 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, or and (v) there are no pending or, to the Knowledge of the Company, threatenedthreatened in writing, relating to the Company Plansmaterial claims, any fiduciaries thereof with respect to their duties to the Company Plans actions, investigations or the assets of any of the trusts under any of the Company Plans audits (other than routine claims for benefits) nor are there facts by, on behalf of or circumstances that exist that could reasonably give rise to against any such Actions;of the Company Benefit Plans or any trusts related thereto.
(ivc) neither Except as set forth on Section 3.12(c) of the Company nor its Disclosure Letter, none of the Company, any of the Company Subsidiaries nor or any of their respective ERISA Affiliates (i) maintains, sponsors, contributes to or has incurred any direct obligation to contribute to, (ii) has maintained, sponsored, contributed to or indirect had an obligation to contribute to, in any such case, within the preceding six years, or (iii) has any liability under ERISA or the Code in connection with the termination of, withdrawal from or failure respect to fund, any Company Plan or other retirement plan or arrangement, and no fact or event exists that would reasonably be expected to give rise to any such liability; and
(vA) the Company and its Subsidiaries do not maintain any Company Plan that is a “group health defined benefit plan” (as such term is defined in Section 5000(b)(13(35) of ERISA) or any other plan that is or was subject to Section 302, 303 or Title IV of ERISA or Section 412, 430 or 4971 of the Code, in any such case, covering employees who reside or work primarily in the United States, (B) a Multiemployer Plan, (C) a Multiple Employer Plan, or (D) a MEWA. None of the Company, any of the Company 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.
(d) No Company Benefit Plan is or is intended to be: (i) a “registered pension plan”, (ii) a “retirement compensation arrangement”, or (iii) an “employee life and health trust” as such terms are defined in subsection 248(1) of the CodeIncome Tax Act (Canada), or (iv) that a “health and welfare trust” within the meaning of Canada Revenue Agency Income Tax Folio S2-F1-C1. No Company Benefit Plan contains or has not ever contained a “defined benefit provision” as such term is defined in subsection 147.1(1) of the Income Tax Act (Canada). No Company Benefit Plan is intended to be, or has ever been administered and operated found or alleged by a Governmental Entity to be, a “salary deferral arrangement” as such term is defined in all respects in compliance with subsection 248(1) of the applicable requirements Income Tax Act (Canada).
(e) No Company Benefit Plan is or has been maintained, sponsored, or contributed to (or required to be contributed to) by the Company for any director, officer, consultant, worker or employee subject to the Laws of Canada.
(f) Each of the Company Benefit Plans intended to be “qualified” within the meaning of Section 601 of ERISA and Section 4980B(b401(a) of the Code, (i) is so qualified and, to the Knowledge of the Company, there are no existing circumstances or any events that have occurred that would reasonably be expected to adversely affect, in any material respect, the qualified status of any such plan and the Company and its Subsidiaries are not subject to any liability(ii) has received a favorable determination letter, including additional contributions, fines, penalties or loss of Tax deductionsmay rely upon a current opinion letter, as a result of such administration and operation; andto its qualification.
(dg) None of the Company Plans provides for payment of a benefit, the increase of a benefit amount, the payment of a contingent benefit, the acceleration of a payment or the vesting of a benefit determined or occasioned, in whole or in part, by reason of Neither the execution and delivery of this Agreement or nor the consummation of the transactions contemplated hereby (either alone or in conjunction with any other event). None of the Company Plans or any other plan agreement or arrangement in effect immediately prior to the Closing could result separately or in the aggregate in connection with the transactions contemplated by this Agreement Transactions (either alone or in conjunction with any other event) will (i) entitle any current or former employee, director or other service provider of the Company or any of the Company Subsidiaries to any payment, benefit or other compensation, (ii) result in the acceleration of vesting, exercisability, funding or delivery of, or the increase in the amount or value of, any payment, right or other benefit to any current or former employee, director or other service provider of the Company or any of the Company Subsidiaries, (iii) result in any payment or funding (through a grantor trust or otherwise) of compensation or benefits under, increase the amount payable or result in any other material obligation pursuant to, any Company Benefit Plan, or (iv) result in any limitation on the right of the Company or any of the Company Subsidiaries to amend, merge, terminate or receive a reversion of assets from any Company Benefit Plan or related trust on or after the First Merger Effective Time. No amount paid or payable (whether in cash, in property, or in the form of benefits) by the Company or any of the Company Subsidiaries in connection with the Transactions (either solely as a result thereof or as a result of such transactions in conjunction with any other event) will be an “excess parachute payment” within the meaning of Section 280G of the Code.
(eh) Each Company Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A(d)(1) of the Code has complied in form and operation with the requirements of Section 409A of the Code. No current or former employee, director or other service provider person is entitled to receive any additional payment (including any Tax gross-up, make-whole indemnification, reimbursement, or other additional payment payment) from the Company or any of its the Company Subsidiaries in respect as a result of any Tax (including Federal, state, local or foreign income, the imposition of the excise or other Taxes (including Taxes imposed under required by Section 409A and 4999 of the Code or any Taxes required by Section 409A of the Code.
(i) Each Company Option has been granted in accordance with the terms of the Company Incentive Plan applicable to such Company Options. Each Company Option has been granted with an exercise price that is no less than the fair market value of the underlying Company Common Shares on the date of grant, as determined in accordance with Section 409A of the Code, as well as Section 422 of the Code if applicable. Each Company Option is intended to be exempt from Section 409A of the Code and has been maintained in a manner consistent with that intent. The Company has made available to GX, accurate and complete copies of (i) the Company Incentive Plans, (ii) the forms of standard award agreement under the Company Incentive Plans, (iii) copies of any award agreements that materially deviate from such forms and (iv) a list of all outstanding equity and equity-based awards granted under the Company Incentive Plans, together with the material terms thereof (including grant date, exercise price, vesting terms, expiration date, and number of shares underlying such award)) or interest or penalty related thereto.
Appears in 2 contracts
Samples: Business Combination Agreement (GX Acquisition Corp. II), Business Combination Agreement (Niocorp Developments LTD)
Benefit Plans. (a) Section 3.11(a) of the Company The Disclosure Letter Schedule sets forth a true complete and complete list, as correct list of the date hereof, of each “all "employee benefit plan” (within the meaning of section plans," as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974 (“ERISA”)), “multiemployer plan” (within the meaning of ERISA section 3(37)) and all plans, programs, policies, arrangements or agreement with respect to employment, termination, severance pay, vacation pay, company awards, salary continuation, disability, sick leave, retirement, deferred compensation, bonus or other incentive compensation, stock purchase, stock option, phantom stock option or other equity-based plancompensation, severancehospitalization, employmentmedical insurance, collective bargaininglife insurance, change-in-controleducational assistance, fringe benefit, bonus, incentive, deferred compensation and all arrangements or other employee benefit and compensation plans, agreements, programs, policies or other arrangements, 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), whether formal or informal, written or oral, legally binding or not, under which any current ) covering employees or former employeeemployees of Seller, director or consultant of the Company or its Subsidiaries (or any of their dependents) has any present or future right to compensation or benefits or the Company or its Subsidiaries has had or has any present or future liability or with respect to which it is otherwise bound Seller has any obligation or liability (collectively"Benefit Plans").
(b) True, correct and complete copies of the “Company Plans”). With following documents, with respect to each Company Planof the Benefit Plans, the Company has made available have been delivered to Parent a true and complete copy thereof and, to the extent applicableBuyer: (i) any plans and related trust agreement or other funding instrumentdocuments, including all amendments thereto, (ii) the three most recent determination letter of the Internal Revenue Service annual reports (the “IRS”), if applicableForms 5500) and schedules thereto, (iii) any the most recent financial statements and actuarial valuations if any, (iv) the most recent IRS determination letter, (v) the most recent summary plan description and other written communications (or a description of any oral communications) by the Company or its Subsidiaries to their employees concerning the extent of the benefits provided under a Company Plandescriptions, and (iv) for the two most recent years (Avi) the Form 5500 premium expenses and attached schedules, (B) audited financial statements, (C) actuarial valuation reports and (D) attorney’s response to an auditor’s request claims experience for information.
(b) No Company each Benefit Plan is subject to Title IV of ERISA or Section 412 of the Code, no Company Plan is a multiemployer plan (within the meaning of Section 3(37) of ERISA), and neither the Company nor any member of its Controlled Group (defined as any organization which is a member of a controlled group of organizations within the meaning of Code Sections 414(b), (c), (m) or (o)) has any liability (direct or contingent) with respect to, and has never incurred any liability (director or contingent) with respect to, any employee welfare benefit plan subject for the period from January 1, 1996 to Title IV of ERISA. No Company Plan provides health or other welfare benefits to former employees the last day of the Company or its Subsidiaries other than health continuation coverage pursuant to COBRAmonth preceding the date hereof.
(c) With Each of the Benefit Plans intended to quality under Section 401 of the Code has been so qualified since its inception and has received a favorable determination letter from the IRS as to such qualified status, and nothing has occurred with respect to the Company Plans, except to the extent that the inaccuracy operation of any such plan which could cause the loss of such qualification or the imposition of any material liability, penalty or tax under ERISA or the Code.
(d) Each of the representations set forth in this paragraph (c), individually or in the aggregate, has not been and would not reasonably be expected to be material to the Company and its Subsidiaries, taken as a whole:
(i) each Company Plan Benefit Plans has been established and administered in accordance with its terms and has been maintained in compliance compliance, in form and operation, with the all applicable provisions of applicable Lawlaws, including including, without limitation, ERISA and the Code, and all contributions required to be made under . Neither the terms of Seller nor any Company Plan have been timely made;
(ii) each Company Plan intended to be qualified under Section 401(a) of the Code has received a favorable determination, advisory "party in interest" or opinion letter, as applicable, from the IRS that it is so qualified and nothing has occurred that would reasonably be expected to cause the loss of such qualified status of such Company Plan;
(iii) there is no Action (including any investigation, audit or other administrative proceeding) 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 the Company, threatened, relating to the Company Plans, any fiduciaries thereof "disqualified person" with respect to their duties to the Company Benefit Plans or the assets of any of the trusts under any of the 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;
(iv) neither the Company nor its Subsidiaries nor any of their Affiliates has incurred any direct or indirect liability under ERISA or the Code engage in connection with the termination of, withdrawal from or failure to fund, any Company Plan or other retirement plan or arrangement, and no fact or event exists that would reasonably be expected to give rise to any such liability; and
(v) the Company and its Subsidiaries do not maintain any Company Plan that is a “group health plan” (as such term is defined in Section 5000(b)(1) of the Code) that has not been administered and operated in all respects in compliance with the applicable requirements of Section 601 of ERISA and Section 4980B(b) of the Code, and the Company and its Subsidiaries are not subject to any liability, including additional contributions, fines, penalties or loss of Tax deductions, as a result of such administration and operation; and
(d) None of the Company Plans provides for payment of a benefit, the increase of a benefit amount, the payment of a contingent benefit, the acceleration of a payment or the 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 hereby (either alone or in conjunction with any other event). None of the Company Plans or any other plan agreement or arrangement in effect immediately prior to the Closing could result separately or in the aggregate in connection with the transactions contemplated by this Agreement (either alone or in conjunction with any other event) in the payment of any “excess parachute payment” non-exempt prohibited transaction within the meaning of Section 280G of the Code.
(e) Each Company Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A(d)(1) 4975 of the Code has complied in form and operation with the requirements or Section 406 of Section 409A of the Code. No current or former employee, director or other service provider is entitled to any gross-up, make-whole or other additional payment from the Company or any of its Subsidiaries in respect of any Tax (including Federal, state, local or foreign income, excise or other Taxes (including Taxes imposed under Section 409A and 4999 of the Code)) or interest or penalty related theretoERISA.
Appears in 2 contracts
Samples: Agreement to Purchase Selected Assets (Alaris Medical Systems Inc), Agreement to Purchase Selected Assets (Alaris Medical Inc)
Benefit Plans. (a) Section 3.11(a4.17(a) of the Company Disclosure Letter sets forth a true and complete list, as of the date hereof, of each lists all “employee benefit planplans” (within the meaning of section Section 3(3) of the Employee Retirement Income Security Act of 1974 (“ERISA”)), “multiemployer plan” (within the meaning of ERISA section 3(37)) and all stock purchase, stock option, phantom stock or other equity-based plan, severance, employment, collective bargainingconsulting, change-inof-control, fringe benefit, bonus, incentive, deferred compensation and all other employee benefit and compensation plans (including the Company Stock Plan), agreements, programs, policies or commitments, whether or not subject to ERISA (other than any material 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 otherwisecommitments mandated under applicable Law), whether formal or informal, written or oral, legally binding or not, (i) under which any current or former employeedirector, director officer, employee or consultant of the Company or any of its Subsidiaries has any right to benefits, and (ii) which are maintained, sponsored or contributed to by the Company or any of their dependents) has any present its Subsidiaries or future right to compensation or benefits or which the Company or any of its Subsidiaries has had makes or has any present or future liability or is required to make contributions with respect to which it is otherwise bound such directors, officers, employees or consultants other than any “multiemployer plan” (collectivelyas defined in Section 3(37) or 4001(a)(3) of ERISA (“Multiemployer Plan”). All such plans, agreements, programs, policies and commitments are collectively referred to as the “Company Benefit Plans.”).
(b) With respect to each Company Benefit Plan, if applicable, the Company has made available to Parent a true and complete copy thereof and, to the extent applicable: copies of (i) the written document evidencing such Company Benefit Plan or, with respect to any related trust agreement or other funding instrumentsuch plan that is not in writing, a written description of the material terms thereof; (ii) the summary plan description; (iii) the most recent annual report, financial statement and/or actuarial report; (iv) the most recent determination letter of received from the Internal Revenue Service (the “IRS”); (v) the most recent Form 5500 required to have been filed with the IRS, if applicable, including all schedules thereto; (iiivi) any summary plan description and other written communications (related trust agreements, insurance contracts or a description documents of any oral communicationsother funding arrangements; (vii) by any material notices to or from the Company IRS or its Subsidiaries to their employees concerning the extent any office or representative of the benefits provided under a Department of Labor relating to any compliance issues which have not been resolved in respect of any such Company Benefit Plan; (viii) all amendments, modifications or supplements to any Company Benefit Plan; and (ivix) for documents evidencing any discrimination or coverage tests performed during the two most recent years (A) the Form 5500 and attached schedules, (B) audited financial statements, (C) actuarial valuation reports and (D) attorney’s response to an auditor’s request for information.
(b) No Company Plan is subject to Title IV of ERISA or Section 412 of the Code, no Company Plan is a multiemployer last plan (within the meaning of Section 3(37) of ERISA), and neither the Company nor any member of its Controlled Group (defined as any organization which is a member of a controlled group of organizations within the meaning of Code Sections 414(b), (c), (m) or (o)) has any liability (direct or contingent) with respect to, and has never incurred any liability (director or contingent) with respect to, any employee benefit plan subject to Title IV of ERISA. No Company Plan provides health or other welfare benefits to former employees of the Company or its Subsidiaries other than health continuation coverage pursuant to COBRAyear.
(c) With respect to the Company Plans, except to the extent that the inaccuracy of any of the representations set forth in this paragraph (c)Except as would not reasonably be expected, individually or in the aggregate, has not been and would not reasonably be expected to be result in a Liability material to the Company and its Subsidiaries, taken as a whole:
, (i) each Company Benefit Plan has been established and administered is in accordance with its terms and in material compliance with ERISA, the Code and other applicable provisions of applicable Law, including ERISA Law and the Code, and (ii) all contributions required to be made under to the Company Benefit Plans pursuant to their terms of any Company Plan and applicable Law have been timely made;made or accrued in accordance with GAAP.
(iid) With respect to each Company Benefit Plan that is intended to be qualified qualify under Section 401(a) of the Code has received (i) a favorable determination, advisory or opinion letter, as applicable, from determination letter has been issued by the IRS that it is so qualified with respect to such qualification, (ii) its related trust has been determined to be exempt from taxation under Section 501(a) of the Code, and nothing (iii) no event has occurred since the date of such qualification or exemption that would materially adversely affect such qualification or exemption.
(e) There have been no (i) non-exempt prohibited transactions (as defined in Section 4975(c) of the Code and Section 406 of ERISA) with respect to any Company Benefit Plan that is subject to Section 4975 of the Code or Section 406 of ERISA, where the Company or, to the Knowledge of the Company, any party dealing with such Company Benefit Plan or any such trust would be reasonably expected to 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, (ii) reportable events (as such term is defined in Section 4043(c) of ERISA), or (iii) to the Knowledge of the Company, breaches of any of the duties imposed on “fiduciaries” (within the meaning of Section 3(21) of ERISA) by ERISA with respect to the Company Benefit Plans that are subject to ERISA, in each case, that could reasonably be expected to cause result in any material liability or excise tax under ERISA or the loss Code being imposed on the Company or any of its Subsidiaries.
(f) At no time during the six (6) years immediately preceding the date of this Agreement has the Company or any of its Subsidiaries or Affiliates had any obligation to contribute to any Multiemployer Plan and the Company has no outstanding liability with respect to any outstanding claims for any withdrawal liability (within the meaning of Section 4201 of ERISA) that were previously assessed by any such qualified status plan.
(g) No Company Benefit Plan is a “multiple employer” plan (as defined in Section 4063 or 4064 of ERISA) or is funded by, associated with or related to a “voluntary employees’ beneficiary association” (within the meaning of Section 501(c)(9) of the Code).
(h) With respect to each Company Benefit Plan that is subject to Title IV or Section 302 of ERISA or Section 412 or 4971 of the Code, as of the last day of the Company’s fiscal year, September 30, 2011, the actuarially determined present value of all “benefit liabilities” (within the meaning of Section 4001(a)(16) of ERISA) did not exceed the then current value of assets of such Company Benefit Plan or, if such liabilities did exceed such assets, the amount thereof was properly reflected on the financial statements of Company or its applicable Subsidiary previously filed with the SEC.
(i) To the Knowledge of the Company, neither the Company nor any of its Subsidiaries has disseminated in writing any legally binding commitment to create or implement any additional employee benefit plan that would be a Company Employee Plan if in existence on the date hereof, or to amend, modify or terminate any Company Employee Plan;, in each such case that would result in the incurrence of a Liability material to the Company and its Subsidiaries taken as a whole.
(j) Except as set forth in this Agreement, the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby will not (either alone or in combination with another event) (i) result in any material payment from the Company or any of its Subsidiaries becoming due, or increase the amount of any compensation due, to any current or former director, officer, employee or consultant of the Company or any of its Subsidiaries, (ii) increase any material benefits otherwise payable under any Company Benefit Plan, (iii) there is no Action result in the acceleration of the time of payment or vesting of any material compensation or benefits from the Company or any of its Subsidiaries to any current or former director, officer, employee or consultant of the Company or any of its Subsidiaries, (iv) result in the payment of any amount that would not be deductible pursuant to the terms of Section 280G of the Code, or (v) result in any limitation on the right of Company or any of its Subsidiaries to amend, merge, terminate or receive a reversion of assets from any Company Benefit Plan or related trust upon more than 30 days advance notice and giving rise to a Liability material to the Company and its Subsidiaries as a result thereof.
(k) No Company Benefit Plan provides for any tax “gross-up,” including but not limited to a gross-up for any investigationtaxes imposed by Section 280G, audit 4999 or other administrative proceeding409A of the Code that remains in effect.
(l) No deduction for federal income tax purposes by the Department Company has been disallowed for remuneration paid by the Company and its Subsidiaries by reason of LaborSection 162(m) of the Code.
(m) Each Company Benefit Plan is amendable and terminable unilaterally by the Company or one or more of its Subsidiaries upon no more than 30 days advance notice without Liability material to the Company and its Subsidiaries as a result thereof.
(n) Each Company Benefit Plan that is a non-qualified deferred compensation plan or arrangement subject to Section 409A of the Code is in material compliance with Section 409A of the Code in form and in operation other than such noncompliance that is not reasonably likely to result, individually or in the Pension aggregate, in a Liability material to the Company and its Subsidiaries taken as a whole.
(o) No Company Benefit Guaranty CorporationPlan is maintained outside the jurisdiction of the United States or covers any employee residing or working outside the United States.
(p) Except as would not reasonably be expected, individually or in the IRS or any other Governmental Entity or by any plan participant or beneficiary aggregate, to result in Liability material to the Company and its Subsidiaries, taken as a whole, with respect to each Company Benefit Plan (i) there are no pending, or or, to the Knowledge of the Company, threatened, relating to the claims or litigation against any Company Plans, Benefit Plan or actions by any fiduciaries thereof Governmental Authority with respect to their duties to termination proceedings or other claims (other than ordinary claims for benefits payable in the Company Plans or the assets of any of the trusts under any normal operation of the Company Plans Benefit Plans), and (other than routine claims for benefitsii) nor are there facts or circumstances that exist that could reasonably give rise to any such Actions;
(iv) neither no written communication has been received from the Company nor its Subsidiaries nor any Pension Benefit Guaranty Corporation in respect of their Affiliates has incurred any direct or indirect liability under ERISA or the Code in connection with the termination of, withdrawal from or failure to fund, any Company Benefit Plan or other retirement plan or arrangement, and no fact or event exists that would reasonably be expected subject to give rise to any such liability; and
(v) the Company and its Subsidiaries do not maintain any Company Plan that is a “group health plan” (as such term is defined in Section 5000(b)(1) of the Code) that has not been administered and operated in all respects in compliance with the applicable requirements of Section 601 Title IV of ERISA and Section 4980B(b) of indicating that the Code, and plan had failed to meet the Company and its Subsidiaries are not subject to any liability, including additional contributions, fines, penalties or loss of Tax deductions, as a result of such administration and operation; and
(d) None of the Company Plans provides for payment of a benefit, the increase of a benefit amount, the payment of a contingent benefit, the acceleration of a payment or the 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 hereby (either alone or in conjunction with any other event). None of the Company Plans or any other plan agreement or arrangement in effect immediately prior to the Closing could result separately or in the aggregate in connection with the transactions contemplated by this Agreement (either alone or in conjunction with any other event) in the payment of any “excess parachute payment” minimum funding standard within the meaning of Section 280G Sections 412 and 430 of the CodeCode (whether or not waived) or notifying the Company of the institution of any proceeding to terminate any such plan.
(eq) Each Company Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A(d)(1) Upon consummation of the Code has complied in form and operation Merger, all Company Options with an exercise price equal to, or greater than, the requirements of Section 409A of the Code. No current or former employee, director or other service provider is entitled to any gross-up, make-whole or other additional payment from Merger Consideration can be cancelled by the Company or without any of its Subsidiaries in respect of any Tax (including Federal, state, local or foreign income, excise or other Taxes (including Taxes imposed under Section 409A and 4999 of Liability to the Code)) or interest or penalty related theretoholder thereof.
Appears in 2 contracts
Samples: Merger Agreement (LD Commodities Sugar Holdings LLC), Merger Agreement (Imperial Sugar Co /New/)
Benefit Plans. (a) Section 3.11(a4.11(a) of the Company Disclosure Letter sets forth Schedule contains a true and complete list, as of the date hereof, correct list of each “employee benefit plan” plan (within the meaning of section as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974 1974, as amended (“"ERISA”")), “multiemployer plan” (within the meaning of ERISA section 3(37)) and all any material bonus, pension, profit sharing, deferred compensation, incentive compensation, stock ownership, stock purchase, stock option, phantom stock, restricted stock, retirement, thrift, savings, stock or other equity-based planbonus, severance, employment, collective bargaining, change-in-controlcafeteria, fringe benefit, bonusvacation, incentiveseverance, disability, death benefit, medical, hospitalization or insurance or other plan, program, arrangement or understanding, maintained or contributed to, or required to be maintained or contributed to, by the Company or any of its subsidiaries (all of the foregoing being herein called the "Company Benefit Plans") and each employment, consulting, deferred compensation compensation, severance, termination or indemnification agreement between the Company or any of its subsidiaries, on the one hand, 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 or required in the future as a result of the transactions contemplated by this Agreement or otherwise), whether formal or informal, written or oral, legally binding or not, under which any current or former employee, officer or director or consultant of the Company or its Subsidiaries (or any of their dependents) has any present or future right to compensation or benefits or its subsidiaries on the other hand (a "Company or its Subsidiaries has had or has any present or future liability or with respect to which it is otherwise bound (collectively, the “Company Plans”Benefit Agreement"). With respect to each Company Benefit Plan, the Company has made available available, to the extent applicable, to Parent a true and complete correct copy thereof and, to the extent applicable: of (i) any related trust agreement or other funding instrumentthe most recent annual report (Form 5500) filed with the Internal Revenue Service, (ii) such Company Benefit Plan and the most recent determination letter summary plan description or similar document required or otherwise provided to participants and beneficiaries of the Internal Revenue Service (the “IRS”), if applicablesuch Company Benefit Plan, (iii) any summary plan description each trust agreement and other written communications (or a description of any oral communications) by the group annuity contract, if any, relating to such Company or its Subsidiaries to their employees concerning the extent of the benefits provided under a Company Plan, Benefit Plan and (iv) for the two most recent years (A) the Form 5500 and attached schedules, (B) audited financial statements, (C) actuarial report or valuation reports and (D) attorney’s response relating to an auditor’s request for information.
(b) No a Company Benefit Plan is subject to Title IV of ERISA or Section 412 of the Code, no Company Plan is a multiemployer plan (within the meaning of Section 3(37) of ERISA), and neither the Company nor any member of its Controlled Group (defined as any organization which is a member of a controlled group of organizations within the meaning of Code Sections 414(b), (c), (m) or (o)) has any liability (direct or contingent) with respect to, and has never incurred any liability (director or contingent) with respect to, any employee benefit plan subject to Title IV of ERISA. No Company Plan provides health or other welfare benefits to former employees of the Company or its Subsidiaries other than health continuation coverage pursuant to COBRA.
(cb) With respect to the Company Benefit Plans, except to the extent that the inaccuracy of any of the representations set forth in this paragraph (c), individually or and in the aggregate, no event has not been occurred, and would not reasonably be expected to be material to the knowledge of the Company, there exists no condition or set of circumstances in connection with which the Company or any of its subsidiaries would be subject to any liability that is reasonably likely to have a Material Adverse Effect (except liability for benefit claims and its Subsidiariesfunding obligations payable in the ordinary course of business consistent with past practice), taken as a whole:under ERISA, the Code or any other applicable law.
(ic) each Each of the Company Plan Benefit Plans has been established operated and administered in all material respects in accordance with its terms and in compliance with the applicable provisions of applicable Lawlaws, including including, but not limited to, ERISA and the Code, and all contributions required to be made under the terms of any . All Company Plan have been timely made;
(ii) each Company Plan Benefit Plans intended to be qualified under Section 401(a) of the Code has have received a favorable determination, advisory or opinion letter, as applicable, determination letters from the IRS Internal Revenue Service with respect to "TRA" (as defined in Section 1 of Rev. Proc. 93-39, 1993-2 C.B. 513), to the effect that it is so such Company Benefit Plans are qualified and nothing exempt from federal income taxes under Sections 401(a) and 501(a), respectively, of the Code, and no such determination letter has occurred that would reasonably be expected to cause the loss of such qualified status of such Company Plan;
(iii) there is no Action (including any investigationbeen revoked nor, audit or other administrative proceeding) 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 knowledge of the Company, threatened, relating to has revocation
(d) Except as disclosed in the Company PlansFilings or as provided for in this Agreement, as of the date of this Agreement, neither the Company nor any fiduciaries thereof of its subsidiaries is a party to any oral or written (i) consulting agreement not terminable on 60 days' or less notice involving the payment of more than $100,000 per annum, (ii) union or collective bargaining agreement, (iii) agreement with any officer or other employee of the Company or any of its subsidiaries the benefits of which are contingent, or the terms of which are materially altered, upon the occurrence of a transaction involving the Company of the nature contemplated by this Agreement or agreement with respect to their duties to any officer or other employee of the Company Plans providing any term of employment or compensation guarantee extending for a period of two or more years and for the payment of in excess of $100,000 per annum, or (iv) agreement or plan, including any stock option plan, stock appreciation right plan, restricted stock plan or stock purchase plan, any of the benefits of which will be increased, or the assets vesting of the benefits of which will be accelerated, by the occurrence of any of the trusts transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement.
(e) Except as otherwise contemplated by this Agreement, there has been no amendment to, written interpretation or announcement (whether or not written) by the Company or any of its subsidiaries relating to, or change in employee participation or coverage under, any Company Benefit Plan which would increase materially the expense of maintaining such Company Benefit Plan above the level of the expense incurred in respect thereof for the fiscal year ended December 31, 1999.
(f) Neither the Company nor any of its subsidiaries has any obligations for retiree health and life benefits under any Company Benefit Plan or Company Benefit Agreement other than benefits required under Section 4980B of the Code. The Consummation of the Offer, the Merger or any other transaction contemplated by this Agreement will not (x) entitle any employee, officer or director of the Company or any of its subsidiaries to severance pay, or (y) accelerate the time of payment or trigger any payment or funding (through a grantor trust or otherwise) of compensation or benefits under any of the Company Benefit Plans or Company Benefit Agreement.
(other g) Other than routine claims for benefitswith respect to the persons listed in Section 4.11(g) nor are there facts of the Disclosure Schedule (the "Primary Company Executives"), any amount or circumstances that exist economic benefit that could reasonably give rise to be received (whether in cash or property or the vesting of property) as a result of the Offer, the Merger or any such Actions;
other transaction contemplated by this Agreement (ivincluding as a result of termination of employment on or following the Effective Time) neither by any employee, officer or director of the Company nor its Subsidiaries nor or any of their Affiliates has incurred any direct or indirect liability under ERISA or the Code in connection with the termination of, withdrawal from or failure to fund, any Company Plan or other retirement plan or arrangement, and no fact or event exists that would reasonably be expected to give rise to any such liability; and
(v) the Company and its Subsidiaries do not maintain any Company Plan that affiliates who is a “group health plan” "disqualified individual" (as such term is defined in proposed Treasury Regulation Section 5000(b)(11.280G-1) under any Company Benefit Plan, Company Benefit Agreement or otherwise would not be characterized as an "excess parachute payment" (as defined in Section 280G(b)(1) of the Code) that has not been administered and operated in all respects in compliance with the applicable requirements of Section 601 of ERISA and Section 4980B(b) of the Code), and the Company and its Subsidiaries are not subject to any liability, including additional contributions, fines, penalties or loss of Tax deductions, as a result of such administration and operation; and
(d) None of the Company Plans provides for payment of a benefit, the increase of a benefit amount, the payment of a contingent benefit, the acceleration of a payment or the 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 hereby (either alone or in conjunction with any other event). None of the Company Plans or any other plan agreement or arrangement in effect immediately prior to the Closing could result separately or in the aggregate in connection with the transactions contemplated by this Agreement (either alone or in conjunction with any other event) in the payment of any “excess parachute payment” within the meaning of Section 280G of the Code.
(e) Each Company Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A(d)(1) of the Code has complied in form and operation with the requirements of Section 409A of the Code. No current or former employee, director or other service provider no disqualified individual is entitled to receive any gross-up, make-whole or other additional payment from the Company or any of its Subsidiaries subsidiaries or any other person in respect of any Tax (including Federal, state, local or foreign income, the event that the excise or other Taxes (including Taxes imposed tax under Section 409A and 4999 of the Code is imposed on such disqualified individual. Set forth in Section 4.11(g) of the Disclosure Schedule is (i) the estimated aggregate amount as of the date hereof that could be paid to each Primary Company Executive as a result of the Offer, the Merger and the other transactions contemplated by this Agreement under all Company Benefit Plans, Company Benefit Agreements or otherwise and (ii) the "base amount" (as defined in Section 280G(b)(3) of the Code)) or interest or penalty related theretofor each Primary Company Executive calculated as of the date of this Agreement.
Appears in 2 contracts
Samples: Merger Agreement (Bayer Corp), Merger Agreement (Bayer Corp)
Benefit Plans. (a( ) Section 3.11(a) of the Company Disclosure Letter sets forth Seller has furnished to Purchaser a true correct, complete and complete list, as of the date hereof, current copy of each “employee benefit plan” (within the meaning of section 3(3) of the Employee Retirement Income Security Act of 1974 (“ERISA”)), “multiemployer plan” (within the meaning of ERISA section 3(37)) program, policy or arrangement which is set forth in writing and all stock purchase, stock option, phantom stock which provides cash or property or other equity-based plan, severance, employment, collective bargaining, change-in-control, fringe benefit, bonus, incentive, deferred compensation and all other employee benefit and compensation plans, agreements, programs, policies related benefits of any kind or other arrangements, whether description whatsoever to or not subject to ERISA (including any funding mechanism therefor now in effect or required in the future as a result on behalf of the transactions contemplated by this Agreement or otherwise), whether formal or informal, written or oral, legally binding or not, under which any current or former employee, director or consultant employee of the Company or its Subsidiaries (Seller employed primarily with respect to the Business or any of their dependents) has dependents and a complete description of any present such plan, program, policy or future right to compensation or benefits or the Company or its Subsidiaries has had or has any present or future liability or with respect to arrangement which it is otherwise bound not set forth in writing (collectively, the “Company "Benefit Plans”"). With respect Each Benefit Plan is listed on Schedule 3.11.
(a) Seller has furnished to each Company PlanPurchaser a correct, the Company has complete and current copy of all employee handbooks currently made available to Parent a true and complete copy thereof and, the Seller's employees with respect to the extent applicable: (i) any related trust agreement or other funding instrument, (ii) the most recent determination letter of the Internal Revenue Service (the “IRS”), if applicable, (iii) any summary plan description and other written communications (or a description of any oral communications) by the Company or its Subsidiaries to their employees concerning the extent of the benefits provided under a Company Plan, and (iv) for the two most recent years (A) the Form 5500 and attached schedules, (B) audited financial statements, (C) actuarial valuation reports and (D) attorney’s response to an auditor’s request for information.the
(b) No Company Plan The Seller is subject not a party to Title IV any employment related contract or agreement of ERISA or Section 412 of any kind whatsoever relating to the CodeBusiness, no Company Plan is a any multiemployer plan (within the meaning of as defined under Section 3(37) of ERISA), which is, or purports to be, binding in any way whatsoever on Purchaser, and neither the Company nor there is no provision in any member of its Controlled Group (defined as any organization which is a member of a controlled group of organizations within the meaning of Code Sections 414(b), (c), (m) employment related contract or (o)) has agreement or Benefit Plan specifically imposing any liability (direct or contingent) with respect to, and has never incurred any liability (director or contingent) with respect to, any employee benefit plan subject to Title IV of ERISA. No Company Plan provides health or other welfare benefits to former employees of the Company or its Subsidiaries other than health continuation coverage pursuant to COBRAon Purchaser.
(c) With The Seller has not made a statement or representation of any kind or description whatsoever to the Company's employees with respect to their possible employment by Purchaser or, if employed by Purchaser, their possible compensation or benefit package from Purchaser. 11. Labor Relations. Since January 23, 1996 and, to the knowledge of Seller (based solely upon inquiry of J. Read Xxxxx and the representations and warranties made to the Seller in that certain Stock Purchase Agreement, dated as of September 30, 1995, by and among Seller, Xx. Xxxxx and certain other individuals), since December 31, 1992, except as set forth in Schedule 3.12, (a) the employees of the Seller with respect to the Company Plans, except to Business have not been and are not represented by a labor organization which was either National Labor Relations Board ("NLRB") certified or voluntarily recognized; (b) the extent that the inaccuracy of any of the representations set forth in this paragraph (c), individually or in the aggregate, Seller has not been and would is not reasonably be expected a signatory to be material a collective bargaining agreement with any labor organization that relates to the Company and its Subsidiaries, taken as a whole:
Business; (ic) each Company Plan no representation election petition has been established and administered in accordance filed by employees of the Seller with its terms and in compliance respect to the Business or is pending with the applicable provisions NLRB and no union organizing campaign involving employees of applicable Lawthe Seller with respect to the Business has occurred or is in progress; (d) no NLRB unfair labor practice claims have been filed and/or are presently pending against the Seller with respect to the Business or any labor organization representing its employees; (e) no grievance or arbitration demand, including ERISA and whether or not filed pursuant to a collective bargaining agreement, has been filed or is pending against the CodeSeller with respect to the Business; (f) no hand billing, and all contributions required picketing, work stoppage (sympathetic or otherwise), or other "concerted action" involving the employees of the Business has occurred or is in progress; (g) no breach of contract and/or denial of fair representation claim has been filed or is pending against the Seller with respect to be made the Business and/or any labor organization representing its employees; (h) no claim for unpaid wages or overtime or for child labor or record keeping violations has been filed or is pending under the terms of any Company Plan have been timely made;
(ii) each Company Plan intended to be qualified under Section 401(a) of the Code has received a favorable determinationFair Labor Standards Act, advisory Xxxxx-Xxxxx Act, Xxxxx-Xxxxxx Act, or opinion letter, as applicable, from the IRS that it is so qualified and nothing has occurred that would reasonably be expected to cause the loss of such qualified status of such Company Plan;
(iii) there is no Action (including any investigation, audit or other administrative proceeding) by the Department of Labor, the Pension Benefit Guaranty Corporation, the IRS Service Contract Act or any other Governmental Entity or by any plan participant or beneficiary pending, or to the Knowledge of the Company, threatened, relating to the Company Plans, any fiduciaries thereof with respect to their duties to the Company Plans or the assets of any of the trusts under any of the 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;
(iv) neither the Company nor its Subsidiaries nor any of their Affiliates has incurred any direct or indirect liability under ERISA or the Code in connection with the termination of, withdrawal from or failure to fund, any Company Plan or other retirement plan or arrangement, and no fact or event exists that would reasonably be expected to give rise to any such liability; and
(v) the Company and its Subsidiaries do not maintain any Company Plan that is a “group health plan” (as such term is defined in Section 5000(b)(1) of the Code) that has not been administered and operated in all respects in compliance with the applicable requirements of Section 601 of ERISA and Section 4980B(b) of the Code, and the Company and its Subsidiaries are not subject to any liability, including additional contributions, fines, penalties or loss of Tax deductions, as a result of such administration and operation; and
(d) None of the Company Plans provides for payment of a benefit, the increase of a benefit amount, the payment of a contingent benefit, the acceleration of a payment or the 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 hereby (either alone or in conjunction with any other event). None of the Company Plans or any other plan agreement or arrangement in effect immediately prior to the Closing could result separately or in the aggregate in connection with the transactions contemplated by this Agreement (either alone or in conjunction with any other event) in the payment of any “excess parachute payment” within the meaning of Section 280G of the Code.
(e) Each Company Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A(d)(1) of the Code has complied in form and operation with the requirements of Section 409A of the Code. No current or former employee, director or other service provider is entitled to any gross-up, make-whole or other additional payment from the Company or any of its Subsidiaries in respect of any Tax (including Federalfederal, state, local or foreign incomelaw, excise regulation, or ordinance; (i) no discrimination and/or retaliation claim has been filed or is pending against the Seller with respect to the Business under the 1866 or 1964 Civil Rights Acts, the Equal Pay Act, the Age Discrimination in Employment Act, as amended, the Americans with Disabilities Act, the Family and Medical Leave Act, the Fair Labor Standards Act, ERISA or any other Taxes federal law or any comparable state fair employment practices act or foreign law regulating discrimination in the workplace; (including Taxes imposed under Section 409A j) if the Seller is a federal or state contractor obligated to develop and 4999 of the Code)) or interest or penalty related thereto.maintain an affirmative action plan, no discrimination
Appears in 1 contract
Samples: Asset Purchase Agreement (Consolidated Stainless Inc)
Benefit Plans. (a) Section 3.11(a4.10(a) of the Company Parent Disclosure Letter sets forth Schedule includes a true and complete list, as list of each of the date hereoffollowing (collectively referred to as the “Parent Benefit Plans,” and each individually referred to as a “Parent Benefit Plan”) that is sponsored, maintained or contributed to or by Parent or any of its Subsidiaries or with respect to which Parent could have any liability, or has been so sponsored, maintained or contributed to within the last six (6) years by Parent or any of its Subsidiaries:
(i) each “employee benefit plan,” (within the meaning of section as such term is defined in Section 3(3) of ERISA, (including employee benefit plans, such as foreign plans, which are not subject to the Employee Retirement Income Security Act provisions of 1974 ERISA); and
(“ERISA”))ii) each material equity option plan, “multiemployer equity appreciation rights plan” (within the meaning of ERISA section 3(37)) and all stock purchase, stock optionrestricted equity plan, phantom stock or other equity-based equity plan, severance, employmentequity based compensation arrangement, collective bargainingbargaining agreement, change-in-controlbonus plan or arrangement, fringe benefitincentive award plan or arrangement, bonusvacation policy, incentiveseverance pay plan, policy or agreement, deferred compensation agreement or arrangement, executive compensation or supplemental income arrangement, change in control plan or agreement, retention plan, agreement or arrangement, consulting agreement, employment agreement and all each other employee benefit and compensation plansplan, agreementsagreement, programsarrangement, policies program, policy, practice or other arrangements, whether or understanding that is not subject to ERISA described in Section 4.10(a)(i).
(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), whether formal or informal, written or oral, legally binding or not, under which any current or former employee, director or consultant of the Company or its Subsidiaries (or any of their dependentsb) has any present or future right to compensation or benefits or the Company or its Subsidiaries has had or has any present or future liability or with respect to which it is otherwise bound (collectively, the “Company Plans”). With respect to each Company Plan, the Company Parent has made available to Parent a true the Company, upon request, true, correct and complete copy thereof andcopies of each of the Parent Benefit Plans, including all amendments thereto. Parent has also made available to Company, with respect to each Parent Benefit Plan and to the extent applicable, true, correct and complete copies of: (i) any related trust agreement the most recent annual or other funding instrumentreports filed with each Governmental Body and all schedules thereto, (ii) the insurance contract and other funding agreement, and all amendments thereto, (iii) the most recent determination letter of the Internal Revenue Service (the “IRS”), if applicable, (iii) any summary plan description and other written communications (or a description of any oral communications) opinion letter issued by the Company or its Subsidiaries to their employees concerning the extent of the benefits provided under a Company PlanIRS, and (iv) for the two most recent years (A) the Form 5500 and attached schedulesall material notices, (B) audited financial statements, (C) actuarial valuation reports and (D) attorney’s response to an auditor’s request for informationletters or other correspondence from any Governmental Body.
(bc) No Company Neither Parent nor any of Parent’s ERISA Affiliates contributes to or has any obligation to contribute to, or has at any time within six years prior to the Closing Date contributed to or had an obligation to contribute to, and no Parent Benefit Plan is (i) a multiemployer plan within the meaning of Section 3(37) of ERISA or (ii) a plan subject to Title IV of ERISA, Section 302 of ERISA or Section 412 of the Code, no Company . No Parent Benefit Plan is funded through a multiemployer plan (within the meaning of trust that is intended to be exempt from U.S. federal income taxation pursuant to Section 3(37501(c)(9) of ERISA), and neither the Company nor any member of its Controlled Group (defined as any organization which is a member of a controlled group of organizations within the meaning of Code Sections 414(b), (c), (m) or (o)) has any liability (direct or contingent) with respect to, and has never incurred any liability (director or contingent) with respect to, any employee benefit plan subject to Title IV of ERISA. No Company Plan provides health or other welfare benefits to former employees of the Company or its Subsidiaries other than health continuation coverage pursuant to COBRACode.
(cd) With respect to the Company Plans, except to the extent that the inaccuracy of any of the representations set forth in this paragraph (c), individually or in the aggregate, has not been and Except as would not reasonably be expected to be result in material liability to the Company and Parent or any of its Subsidiaries, taken as a whole:
(i) Parent and its Subsidiaries have performed all material obligations, whether arising by operation of any Legal Requirement or by contract, required to be performed by it or them in connection with the Parent Benefit Plans, and there have been no defaults or violations by any other party to the Parent Benefit Plans;
(ii) (A) all material reports and disclosures relating to the Parent Benefit Plans required to be filed with or furnished to Governmental Bodies, Parent Benefit Plan participants or Parent Benefit Plan beneficiaries have been filed or furnished in accordance with applicable Legal Requirements in a timely manner, (B) each Company Parent Benefit Plan has been established documented, operated and administered in accordance substantial compliance with its terms governing documents and applicable Legal Requirements, and (C) each Parent Benefit Plan that could be a “nonqualified deferred compensation” arrangement under Section 409A of the Code is in compliance with the applicable provisions Section 409A of applicable Law, including ERISA and the Code, and no service provider is entitled to a Tax gross-up or similar payment for any Tax or interest that may be due under Section 409A of the Code;
(iii) each of the Parent Benefit Plans intended to be qualified under Section 401(a) of the Code (A) satisfies the requirements of Section 401(a) of the Code, (B) is maintained pursuant to a prototype document approved by the IRS, and is entitled to rely on a favorable opinion letter issued by the IRS with respect to such prototype document, or has received a favorable determination letter from the IRS regarding such qualified status, (C) has been amended as required by applicable Legal Requirements to maintain qualified status, and (D) has not been amended or operated in a way that would adversely affect such qualified status;
(iv) there are no claims pending (other than routine claims for benefits) or, to the Knowledge of Parent, threatened against, or with respect to, any of the Parent Benefit Plans or their assets;
(v) all contributions required to be made to the Parent Benefit Plans pursuant to their terms and provisions or pursuant to applicable Legal Requirements have been timely made and all benefits accrued under the terms of any Company unfunded Parent Benefit Plan have been timely madepaid, accrued or otherwise adequately reserved to the extent required by, and in accordance with, GAAP;
(iivi) each Company as to any Parent Benefit Plan intended to be qualified under Section 401(a) of the Code Code, there has received a favorable determination, advisory been no termination or opinion letter, as applicable, from partial termination of the IRS that it is so qualified and nothing has occurred that would reasonably be expected to cause Parent Benefit Plan within the loss meaning of such qualified status Section 411(d)(3) of such Company Planthe Code;
(iiivii) no act, omission or transaction has occurred which would result in imposition on Parent, directly or indirectly, of (A) breach of fiduciary duty liability damages under Section 409 of ERISA, (B) a penalty assessed pursuant to Section 502 of ERISA or (C) a Tax imposed pursuant to Chapter 43 of Subtitle D of the Code;
(viii) there is no Action (including any investigation, audit or other administrative proceeding) 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 the Company, threatened, relating to the Company Plans, any fiduciaries thereof with respect to their duties to the Company Plans or the assets of any of the trusts under any of the Company Plans matter pending (other than routine claims for benefitsqualification determination filings) nor are there facts with respect to any of the Parent Benefit Plans before any Governmental Body; and
(ix) the execution and delivery of this Agreement and the consummation of the Transactions will not (A) require Parent or circumstances that exist that could reasonably any of its Subsidiaries to make a larger contribution to, or pay greater compensation, payments or benefits under, any Parent Benefit Plan or under any Contract than it otherwise would, whether or not some other subsequent action or event would be required to cause such payment or provision to be triggered, or (B) create or give rise to any such Actions;additional vested rights or service credits under any Parent Benefit Plan or under any Contract.
(ive) neither the Company nor its Subsidiaries Neither Parent nor any of their Affiliates its Subsidiaries is a party to any Contract, nor has incurred Parent or any direct of its Subsidiaries established any policy or indirect liability under ERISA practice, requiring it to make a payment or provide any other form of compensation or benefit to any Person performing services for Parent or any of its Subsidiaries upon termination of such services that would not be payable or provided in the Code in absence of the consummation of the Transactions.
(f) In connection with the termination ofconsummation of the Transactions, withdrawal from no payments of money or failure to fundproperty, acceleration of benefits, or provisions of other rights have or will be made under this Agreement, under any Company Plan agreement, plan or other retirement plan program contemplated in this Agreement, under the Parent Benefit Plans or arrangementunder any Contract that, in the aggregate, would be reasonably likely to result in imposition of the sanctions imposed under Sections 280G and no fact 4999 of the Code, whether or not some other subsequent action or event exists that would reasonably be expected required to give rise cause such payment, acceleration or provision to any such liability; andbe triggered.
(vg) the Company and Neither Parent nor any of its Subsidiaries do not maintain has any Company commitment, intention or understanding to create, modify or terminate any Parent Benefit Plan. Each Parent Benefit Plan that is a an “group health employee benefit plan,” (as such term is defined in Section 5000(b)(13(3) of the Code) that has not been administered and operated ERISA, may be unilaterally amended or terminated in all respects in compliance with the applicable requirements of Section 601 of ERISA and Section 4980B(b) of the Code, and the Company and its Subsidiaries are not subject entirety without liability except as to any liability, including additional contributions, fines, penalties or loss of Tax deductions, as a result of such administration and operation; and
(d) None of the Company Plans provides for payment of a benefit, the increase of a benefit amount, the payment of a contingent benefit, the acceleration of a payment or the 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 hereby (either alone or in conjunction with any other event). None of the Company Plans or any other plan agreement or arrangement in effect immediately benefits accrued thereunder prior to the Closing could result separately such amendment or in the aggregate in connection with the transactions contemplated by this Agreement (either alone or in conjunction with any other event) in the payment of any “excess parachute payment” within the meaning of Section 280G of the Codetermination.
(eh) Each Company Plan that is a “nonqualified deferred compensation plan” within Except to the meaning of extent required pursuant to Section 409A(d)(14980B(f) of the Code has complied in form and operation with the requirements corresponding provisions of Section 409A of the Code. No current or former employee, director ERISA or other service provider is entitled applicable Legal Requirements, no Parent Benefit Plan or Contract provides retiree medical or retiree life insurance benefits to any gross-upPerson, make-whole and Parent is not contractually or other additional payment from the Company otherwise obligated (whether or not in writing) to, and Parent has never represented that it will, provide any Person with life insurance or medical benefits upon retirement or termination of its Subsidiaries in respect of any Tax (including Federal, state, local or foreign income, excise or other Taxes (including Taxes imposed under Section 409A and 4999 of the Code)) or interest or penalty related theretoemployment.
Appears in 1 contract
Benefit Plans. (a) Section 3.11(aAll Benefit Plans: (i) of contributed, sponsored by, or maintained by Parent or the Company Disclosure Letter sets forth a true and complete list, as of the date hereof, of each “employee benefit plan” Companies; (within the meaning of section 3(3ii) of the Employee Retirement Income Security Act of 1974 (“ERISA”)), “multiemployer plan” (within the meaning of ERISA section 3(37)) and all stock purchase, stock option, phantom stock or other equity-based plan, severance, employment, collective bargaining, 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 or required in the future as a result of the transactions contemplated by this Agreement or otherwise), whether formal or informal, written or oral, legally binding or not, under which any current or former employee, director director, officer, independent contractor, or consultant of the Company or its Subsidiaries (or any of their dependents) Companies has any present or future right to compensation benefits; or benefits or (iii) under which any of the Company or its Subsidiaries has had or Companies has any present or future liability or with respect liability, are referred to herein as the “Employee Plans.” Each Employee Plan is identified on Section 3.09(a) of the Parent Disclosure Letter. Section 3.09(a) of the Parent Disclosure Letter separately identifies which it is otherwise bound Employee Plans are sponsored by the Companies (collectively, the “Company Plans”) and which Employee Plans are sponsored by Parent (the “Parent Plans”). .
(b) With respect to each Company Employee Plan, the Company has Companies have furnished or made available to Parent Purchaser a true current, accurate and complete copy thereof and, to 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 (the “IRS”), if applicable, ; (iii) any the most recent summary plan description and other written communications (or a description of any oral communications) by the Company or its Subsidiaries to their employees concerning the extent of the benefits provided under a Company Plan, description; and (iv) for the two most recent three years (A) the Form 5500 and attached schedules, (B) audited financial statements, statements and (C) actuarial valuation reports reports. Parent also has furnished and made available to Purchaser copies of any 280G calculation prepared (D) attorney’s response to an auditor’s request for information.
(b) No Company Plan is subject to Title IV of ERISA whether or Section 412 of the Code, no Company Plan is a multiemployer plan (within the meaning of Section 3(37) of ERISA), and neither the Company nor any member of its Controlled Group (defined as any organization which is a member of a controlled group of organizations within the meaning of Code Sections 414(b), (c), (m) or (o)) has any liability (direct or contingentnot final) with respect toto any employee, and has never incurred any liability (director director, or contingent) with respect to, any employee benefit plan subject to Title IV independent contractor of ERISA. No Company Plan provides health or other welfare benefits to former employees one of the Company or its Subsidiaries other than health continuation coverage pursuant to COBRACompanies in connection with the Transactions (together with the underlying documentation on which such calculation is based).
(c) With respect to the Company Planseach Employee Plan, except to the extent that the inaccuracy of any of the representations set forth in this paragraph (c)Section 3.09, individually or in the aggregate, has not been and would not reasonably be expected to be result in a material liability to the Company and its Subsidiaries, taken as a wholeCompanies:
(i) each Company Employee Plan has been established and administered in accordance with its terms and in compliance with the applicable provisions of applicable Law, including ERISA and the Code, and other applicable Law, and all contributions required to be made under the terms of any Company Employee Plan have been timely made;
(ii) each Company Employee Plan intended to be qualified under Section 401(a) of the Code Code: (A) has received a favorable determination, advisory or and/or opinion letter, as applicable, from the IRS that it is so qualified and and, to the Knowledge of Parent, nothing has occurred since the date of such letter that would reasonably be expected to cause the loss of such qualified status of such Company Employee Plan, or (B) is a volume submitter or prototype plan whose sponsor obtained a favorable opinion letter and on which letter the Companies are permitted to rely;
(iii) there is no Action (including any investigation, audit audit, or other administrative proceeding) by the Department of Labor, the Pension Benefit Guaranty CorporationPBGC, the IRS IRS, or any other Governmental Entity or by any plan participant or beneficiary pendingpending or, or to the Knowledge of the CompanyParent, threatened, relating to the Company Employee Plans, any fiduciaries thereof with respect to their duties to the Company Employee Plans or the assets of any of the trusts under any of the Company Employee Plans (other than routine claims for benefits) nor nor, to the Knowledge of Parent, are there facts or circumstances that exist that could reasonably give rise to any such Actions;, and no written or oral communication has been received from the PBGC in respect of any Employee 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; and
(iv) neither to the Company nor its Subsidiaries nor any Knowledge of their Affiliates has incurred any direct or indirect liability under ERISA or the Code in connection with the termination ofParent, withdrawal from or failure to fund, any Company Plan or other retirement plan or arrangement, and no fact or event exists that would reasonably be expected to give rise to any such liability; and
(v) the Company and its Subsidiaries do not maintain any Company Plan that is a “group health planreportable event” (as such term is defined in Section 5000(b)(1) 4043 of the Code) that has not been administered ERISA), and operated no nonexempt “prohibited transaction” (as such term is defined in all respects in compliance with the applicable requirements of Section 601 406 of ERISA and Section 4980B(b4975 of the Code), in each case whether or not waived, has occurred with respect to any Employee Plan.
(d) Neither Parent, its Subsidiaries (including, without limitation, the Companies), nor any of their ERISA Affiliates has, within the preceding six (6) years, maintained, contributed to, been required to contribute, or otherwise had any liability with respect to a plan subject to Title IV or Section 302 of ERISA or Section 412 or 4971 of the Code. No Company Plan is a “multiemployer plan” (as defined in Section 4001(a)(3) of ERISA) and neither the Parent, the Companies, or any of their respective ERISA Affiliates has at any time within the preceding six (6) years sponsored or contributed to, or has or had any liability or obligation in respect of, any multiemployer plan. None of the Companies has any current or future obligation to provide post-retirement health, life, or other welfare benefits (other than as required by Section 4980B of the Code or any similar applicable Law).
(e) Except as otherwise disclosed on Section 3.09(e) of the CodeParent Disclosure Letter, and none of the Company and its Subsidiaries are not subject Companies is a party to any liabilityContract that will, including additional contributionsdirectly or in combination with other events, finesresult, penalties separately or loss in the aggregate, in the payment, acceleration or enhancement of Tax deductions, any benefit as a result of such administration the Transactions, and operation; and
(d) None of the Company Plans provides for payment of a benefit, the increase of a benefit amount, the payment of a contingent benefit, the acceleration of a payment or the vesting of a benefit determined or occasioned, in whole or in part, by reason of neither the execution of this Agreement or Agreement, nor the consummation of the transactions contemplated hereby Transactions will (either alone or in conjunction combination with another event): (i) result in severance pay or any increase in severance pay upon any termination of employment after the Effective Date; (ii) 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 the amount payable or result in any other event). None material obligation to, any of the Employee Plans; (iii) limit or restrict the right of any Company Plans to merge, amend, or terminate any other plan agreement of the Employee Plans; or arrangement in effect immediately prior to the Closing could (iv) result separately or in the aggregate in connection with the transactions contemplated by this Agreement (either alone or in conjunction with any other event) in the payment of any “excess parachute payment” within the meaning of payments which would not be deductible under Section 280G of the Code.
(ef) Each Company No Employee Plan that is a “nonqualified deferred compensation plan” within maintained outside the meaning of Section 409A(d)(1) jurisdiction of the Code has complied in form and operation with the requirements of Section 409A of the Code. No current United States, or former employee, director provides compensation or other service provider is entitled to any gross-up, make-whole or other additional payment from the Company or any of its Subsidiaries benefits in respect of any Tax Business Employee (including Federalor dependent thereof) residing or working outside the United States.
(g) Except as contemplated by this Agreement, statefollowing the Closing, local or foreign income, excise or other Taxes (including Taxes imposed the Companies shall not have any liability under Section 409A and 4999 of the Code)) or interest or penalty related theretoany Parent Plan whatsoever.
Appears in 1 contract
Samples: Equity Purchase Agreement (1347 Property Insurance Holdings, Inc.)
Benefit Plans. (a) Section 3.11(aSchedule 5.12(a) sets forth a true, complete and correct list of all Company Benefit Plans. A true, complete and correct copy of each of the Company Disclosure Letter sets forth a true and complete listBenefit Plans, as of the date hereof, of each “employee benefit plan” (within the meaning of section 3(3) of the Employee Retirement Income Security Act of 1974 (“ERISA”)), “multiemployer plan” (within the meaning of ERISA section 3(37)) and all stock purchaseContracts relating thereto, stock optionor to the funding thereof, phantom stock or other equity-based plan, severance, employment, collective bargaining, change-in-control, fringe benefit, bonus, incentive, deferred compensation and including all other employee benefit and compensation plans, trust agreements, programsinsurance contracts, policies or other arrangementsadministration contracts, whether or investment management agreements, subscription and participation agreements, and recordkeeping agreements, have been provided to Purchaser. In the case of any Company Benefit Plan which is 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), whether formal or informal, written or oral, legally binding or not, under which any current or former employee, director or consultant of the Company or its Subsidiaries (or any of their dependents) has any present or future right to compensation or benefits or the Company or its Subsidiaries has had or has any present or future liability or with respect to which it is otherwise bound (collectively, the “Company Plans”). With respect to each Company Planform, the Company has made available to Parent provided Purchaser with a true correct written description of such Company Benefit Plan. A true, complete and complete copy thereof andcorrect copy, to the extent applicable: applicable with respect to a Company Benefit Plan, of (i) any related trust agreement or the three (3) most recent annual reports (Form 5500 series) and accompanying schedules and other funding instrumentattachments, actuarial reports, and accountant’s opinions of the plan’s financial statements; (ii) the most recent determination letter summary plan description together with any summary of the Internal Revenue Service (the “IRS”), if applicable, material modifications and all member booklets; (iii) any summary plan description and other written communications (the most recent IRS determination or a description of any oral communications) by the Company or its Subsidiaries to their employees concerning the extent of the benefits provided under a Company Plan, and opinion letter; (iv) a current schedule of assets (and the fair market value thereof assuming liquidation of any asset which is not readily tradable) held with respect to any funded Company Benefit Plan; (v) nondiscrimination, Code section 409(p), and other compliance testing reports for the two three (3) most recent years; (vi) the most recent share repurchase liability study; (vii) all correspondence, requests, audits, filings, notices or similar communications received from any Governmental Authority relative to the Company Benefit Plan during the past six (6) years (Aincluding any submission made to any Governmental Authority under a voluntary compliance, correction or amnesty program); and (viii) any other documents, forms or other instruments relating to any Benefit Plan reasonably requested by Purchaser, has been provided to Purchaser, and there have been no material changes in the Form 5500 and attached schedules, (B) audited financial statements, (C) actuarial valuation condition in the respective Company Benefit Plans from that stated in the annual reports and (D) attorney’s response to an auditor’s request for informationactuarial reports supplied.
(b) No Each Company Plan is subject to Title IV of ERISA or Section 412 of the Code, no Company Plan is a multiemployer plan (within the meaning of Section 3(37) of ERISA), and neither the Company nor any member of its Controlled Group (defined as any organization which is a member of a controlled group of organizations within the meaning of Code Sections 414(b), (c), (m) or (o)) has any liability (direct or contingent) with respect to, and has never incurred any liability (director or contingent) with respect to, any employee benefit plan subject to Title IV of ERISA. No Company Plan provides health or other welfare benefits to former employees of the Company or its Subsidiaries other than health continuation coverage pursuant to COBRA.
(c) With respect to the Company Plans, except to the extent that the inaccuracy of any of the representations set forth in this paragraph (c), individually or in the aggregate, has not been and would not reasonably be expected to be material to the Company and its Subsidiaries, taken as a whole:
(i) each Company Benefit Plan has been established established, registered (where required), maintained, administered, funded, and administered in accordance with its terms and operated in compliance in all material respects with the applicable provisions requirements of applicable LawERISA, including ERISA and the Code, and all contributions required to be made under the terms of any other applicable Laws. Each Company Benefit Plan have been timely made;
(ii) each Company Plan that is intended to be qualified under Section 401(a) of the Code has received a favorable determination, advisory or opinion letter, as applicable, determination letter from the IRS that it Internal Revenue Service or is so qualified and nothing has occurred that would reasonably be expected to cause the loss subject of such qualified status a favorable opinion letter from the Internal Revenue Service on the form of such Company Plan;
(iiiBenefit Plan and the tax-exempt status of any trust which forms a part of such plan under Section 501(a) there is of the Code. The Company Group does not reasonably expect to incur any penalties or liabilities under Section 4980H(a) or Section 4980H(b) of the Code. There have been no Action (including any investigation, audit acts or other administrative proceeding) by the Department of Labor, the Pension Benefit Guaranty Corporation, the IRS or any other Governmental Entity or omissions by any plan participant or beneficiary pending, or to the Knowledge of the Company, threatened, relating to the Company Plans, any fiduciaries thereof with respect to their duties to the Company Plans or the assets of any of the trusts under any member of the Company Plans (other than routine claims for benefits) nor are there facts Group or circumstances that exist that could reasonably give rise to any such Actions;
(iv) neither the Company nor its Subsidiaries nor any of their respective ERISA Affiliates has incurred any direct that have given rise to or indirect liability under ERISA or the Code in connection with the termination of, withdrawal from or failure to fund, any Company Plan or other retirement plan or arrangement, and no fact or event exists that would reasonably be expected to give rise to interest, fines, penalties, Taxes or related charges under Chapters 43, 47, 68 or 100 of the Code for which the Company Group or any such liability; andof its ERISA Affiliates may be liable.
(vc) Neither the Company and Group nor any of its Subsidiaries do not maintain ERISA Affiliates has, or has had, any Liability with respect to a Multiemployer Plan or a plan that is subject to Title IV of ERISA or the minimum funding requirements of Section 412 of the Code. None of the Company Plan that Benefit Plans is a “group health multiple employer plan” (as such term is defined in Section 5000(b)(1413(c) of the Code) that has not been administered and operated in all respects in compliance with or a multiple employer welfare arrangement (within the applicable requirements meaning of Section 601 section 3(40) of ERISA and Section 4980B(b) or any corresponding or similar provision of the Code, and the Company and its Subsidiaries are not subject to any liability, including additional contributions, fines, penalties or loss of Tax deductions, as a result of such administration and operation; andother applicable Law).
(d) None of the No Company Plans Benefit Plan provides for payment post-employment or retiree welfare benefits, except as required by applicable Laws and the cost of a benefit, coverage for which is fully paid by the increase of a benefit amount, the payment of a contingent benefit, the acceleration of a payment or the 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 hereby (either alone or in conjunction with any other event). None of the Company Plans or any other plan agreement or arrangement in effect immediately prior to the Closing could result separately or in the aggregate in connection with the transactions contemplated by this Agreement (either alone or in conjunction with any other event) in the payment of any “excess parachute payment” within the meaning of Section 280G of the Codecovered individual.
(e) Neither the Company Group nor, to the Company’s Knowledge, any other “disqualified person” or “party in interest” (as defined in Section 4975(e)(2) of the Code and Section 3(14) of ERISA, respectively) has engaged in any “prohibited transactions” (as defined in section 406 of ERISA or section 4975 of the Code), or any corresponding or similar provision of any other applicable Law, in connection with any Company Benefit Plan.
(f) Each Company Benefit Plan that which is a “nonqualified deferred compensation plan” within the meaning of Section 409A(d)(1) 409A of the Code has complied been operated and administered in form and operation compliance in all material respects with the requirements of Section 409A of the CodeCode and any proposed and final guidance under Section 409A of the Code or any corresponding or similar provision of any other applicable Law. No current or former employee, director or other service provider is entitled to any gross-up, make-whole or other additional payment from Neither the Company or nor any of its Subsidiaries in respect of has an indemnity or gross-up obligation for any Tax (including Federal, state, local or foreign income, excise or other Taxes (including Taxes imposed under Section 409A and 4999 or Section 457A of the Code (or any corresponding or similar provision of state, local, or foreign Tax Law).
(g) The ESOP is an “employee stock ownership plan” within the meaning of Code Section 4975(e)(7). Any loan made to the ESOP is an “exempt” loan within the meaning of Treasury Regulation Section 54.4975-7(b). The ESOP has not been a party to any purchase or sale of Company during the preceding six (6) years. The ESOP has at all times been primarily invested in “employer securities” as defined in Section 409(l) of the Code), and such employer securities have been valued no less frequently than annually by an independent appraiser meeting the requirements Section of 401(a)(28) of the Code. The Company Group and the ESOP have complied in all respects with Section 409(p) of the Code and the Treasury Regulations thereunder. As of the Closing Date, neither the Company Group nor the ESOP shall have made any “prohibited allocations” within the meaning of Treasury Regulation Section 1.409(p)-1(b)(2) in violation of Section 409(p) or interest caused the incurrence of a nonallocation year as defined in Treasury Regulation Section 1.409(p)-1(c), issued any synthetic equity to a disqualified person for purposes of Code Section 4979A(a)(4) or penalty related theretoengaged in any other transaction that could result in the Company Group being liable an for excise tax under Section 4979A of the Code.
(h) Except as set forth on Schedule 5.12(h), neither the execution and delivery of the Company Documents nor the consummation of the transactions contemplated hereby and thereby will trigger a payment, accelerate the time of vesting or the time of payment, or increase the amount, of any compensation or benefits due to any Employee, Independent Contractor or former employee, or independent contractor of the Company Group. Neither the Company Group nor any of its ERISA Affiliates is a nonqualified entity within the meaning of Section 457A of the Code or any other applicable Law.
(i) The Company Group has no liability by reason of an individual who performs or performed services for any member of the Company Group in any capacity being improperly excluded from participating in a Company Benefit Plan.
(j) There are no Proceedings (other than routine claims for benefits, none of which, individually or in the aggregate, are material to the Company Group) pending or, to the Company’s Knowledge, threatened involving any Company Benefit Plan or the assets of any Company Benefit Plan.
Appears in 1 contract
Samples: Stock Purchase Agreement (Distribution Solutions Group, Inc.)
Benefit Plans. (a) Section 3.11(a3.10(a) of the Company Disclosure Letter sets forth a true and complete list, as of the date hereof, list of each “employee benefit plan” (within the meaning of section 3(3) of the Employee Retirement Income Security Act of 1974 (“ERISA”))Company Plan, “multiemployer plan” (within the meaning of ERISA section 3(37)) and all stock purchase, stock option, phantom stock or other equity-based plan, severance, than any employment, collective bargaining, changetermination or severance letter or agreement for non-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 or required in the future as a result of the transactions contemplated by this Agreement or otherwise), whether formal or informal, written or oral, legally binding or not, under which any current or former employee, director or consultant officer employees of the Company or its Subsidiaries (or any and equity award grant notices and agreements, in each case to the extent documented on the Company’s standard forms made available to Parent and agreements with consultants entered into in the ordinary course of their dependents) has any present or future right to compensation or benefits or the Company or its Subsidiaries has had or has any present or future liability or with respect to which it is otherwise bound (collectively, the “Company Plans”)business. With respect to each Company Plan, the Company has furnished or made available to Parent a true current, accurate and complete copy thereof (or a description of any such unwritten Company Plan), including any amendments thereto, and, to the extent applicable: (i) any related trust agreement or other funding instrument, (ii) the most recent determination or advisory letter of the Internal Revenue Service (the “IRS”), if applicable, (iii) any summary plan description description, summary of material modifications and other equivalent written communications (or a description of any oral communications) by the Company or its Subsidiaries to their employees concerning the extent of the benefits provided under a such Company Plan, and (iv) any communications 18 with Government Entities concerning such Company Plan during the three (3) most recent years, (v) the nondiscrimination, coverage and other IRS limit testing reports for the three (3) most recent plan years, (vi) any agreements in effect between the Company or Subsidiary and any third party related to the insurance, funding, administration or operation of such Company Plan, including third party administration or professional employer organization agreements and (vii) if applicable, for the two most recent years (A) the Form 5500 and attached schedules, (B) audited financial statements, statements and (C) actuarial valuation reports reports. Since January 1, 2021, neither the Company nor its Subsidiaries have received any notice or demand informing the Company or such Subsidiary that it may be liable for an “employer shared responsibility payment” as contemplated by Section 4980H of the Code, the regulations issued thereunder, and the Patient Protection and Affordable Care Act of 2010, as amended, and all regulations issued thereunder and rulings issued with respect thereto (D) attorney’s response to an auditor’s request for informationthe “Affordable Care Act”).
(b) No Company Plan is subject to Title IV of ERISA or Section 412 of the Code, no Company Plan is a multiemployer plan (within the meaning of Section 3(37) of ERISA), and neither the Company nor any member of its Controlled Group (defined as any organization which is a member of a controlled group of organizations within the meaning of Code Sections 414(b), (c), (m) or (o)) has any liability (direct or contingent) with respect to, and has never incurred any liability (director or contingent) with respect to, any employee benefit plan subject to Title IV of ERISA. No Company Plan provides health or other welfare benefits to former employees of the Company or its Subsidiaries other than health continuation coverage pursuant to COBRA.
(c) With respect to the Company Plans, except to the extent that the inaccuracy of any of the representations set forth in this paragraph (c)Section 3.10 would not, individually or in the aggregate, has not been and would not reasonably be expected to be material to the Company and its Subsidiaries, taken as have a wholeMaterial Adverse Effect:
(i) each Company Plan has been established established, maintained, funded, operated and administered in compliance with, its terms and applicable Laws;
(ii) each Company Plan subject to ERISA has been established, funded, and administered in accordance with its terms and in compliance with the applicable provisions of all applicable LawLaws, including ERISA and the Code, and no prohibited transaction, as described in Section 406 of ERISA or Section 4975 of the Code, or accumulated funding deficiency, as defined in Section 302 of ERISA and 412 of the Code, has occurred with respect to any Company Plan, and all contributions contributions, premium payments, distributions or other payments required to be made under the terms of any Company Plan have been timely made;
(iiiii) each Company Plan intended to be qualified under Section 401(a) of the Code has received a currently effective favorable determination, advisory or and/or opinion letter, as applicable, from the IRS that it is so qualified and nothing has occurred since the date of such letter that would reasonably be expected to cause adversely affect the loss of such qualified status of such Company Plan;
(iiiiv) there is no Action (including any investigation, audit or other administrative proceeding) by the Department of Labor, the Pension Benefit Guaranty CorporationCorporation (the “PBGC”), the IRS or any other Governmental Entity or by any plan participant or beneficiary pending, or to the Knowledge knowledge of the Company, threatened, relating to the Company Plans, any fiduciaries thereof with respect to their duties to the Company Plans or the assets of any of the trusts under any of the 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;
(iv) neither the Company nor its Subsidiaries nor any of their Affiliates has incurred any direct or indirect liability under ERISA or the Code in connection with the termination of, withdrawal from or failure to fund, any Company Plan or other retirement plan or arrangement, and no fact or event exists that would reasonably be expected to give rise to any such liabilityActions; and
(v) no Company Plan is subject to Section 412 of the Code;
(vi) the Company and its Subsidiaries do not maintain any Company Plan that is a “group health plan” (as such term is defined in Section 5000(b)(1) of the Code) that has not been administered and operated in all respects in compliance with the applicable requirements of Section 601 of ERISA and Section 4980B(b) 4980B of the Code, similar state Laws and the Affordable Care Act, and the Company and its Subsidiaries are not subject to any material liability, including additional contributions, fines, penalties or loss of Tax deductions, tax deduction as a result of such administration and operation; and
(dvii) None of no payments or benefits under any Company Plan are, or are expected to be, subject to the Company Plans provides for payment disallowance of a benefit, the increase of a benefit amount, the payment of a contingent benefit, the acceleration of a payment or the 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 hereby (either alone or in conjunction with any other event). None of the Company Plans or any other plan agreement or arrangement in effect immediately prior to the Closing could result separately or in the aggregate in connection with the transactions contemplated by this Agreement (either alone or in conjunction with any other eventdeduction under Section 162(m) in the payment of any “excess parachute payment” within the meaning of Section 280G of the Code.
(c) Neither the execution and delivery of this Agreement and any related documents nor the consummation of the Mergers contemplated hereby will, either alone or in combination with any other event: (i) require the Company or any Subsidiary to fund any liabilities or place in trust or otherwise set aside any amounts in respect of any Company Plan, (ii) entitle any current or former Service Provider of the Company to any compensation or benefits due under any plan, program, agreement or arrangement including any Company Plan, (iii) result in the forfeiture of compensation or benefits under any Company Plan, (iv) accelerate the time at which any compensation, benefits or award may become payable, vested or required to be funded in respect of any current or former Service Provider of the Company, or (v) limit or restrict the right of the Company or any Subsidiary to merger, amend or terminate any Company Plan.
(d) None of the Company, any of its Subsidiaries or any entity within the same “controlled group” as the Company or any of its Subsidiaries within the meaning of Section 4001(a)(14) of ERISA or 414 of the Code (an “ERISA Affiliate”) has within the past five (5) years contributed or been obligated to contribute to (i) a multiemployer plan, as defined in Section 4001(a)(3) of ERISA or 3(37) of ERISA, (ii) a multiple employer plan, as defined in Section 413(c) of the Code, (iii) a multiple employer welfare arrangement, as defined in Section 3(40) of ERISA, (iv) any plan or agreement that provides life, health or other non-pension benefits to any person beyond their retirement or other termination of service, other than coverage mandated by COBRA or other applicable Law (and for which the sole expense is borne by such Person) (v) a plan subject to Title IV of ERISA.
(e) No event has occurred, and no condition or circumstance exists, that could reasonably be expected to subject the Company, any Subsidiary of the Company or any Company Plan to penalties or excise taxes under Sections 4980D, 4980H, 6721, 6722, 6055 or 6056 of the Code or under any provision of the Affordable Care Act. No Company Plan has been the subject of an application or filing under, or is a participant in, an amnesty, voluntary compliance, self-correction or similar program sponsored by any Governmental Entity within the last six (6) years.
(f) Neither the Company nor any Subsidiary of the Company is required to provide any gross-up, make-whole or other additional payment with respect to taxes, interests or penalties imposed under any Tax provisions, including Section 409A or Section 4999 of the Code.
(g) Each Company Plan that is a “nonqualified deferred compensation plan” within the meaning of (as defined in Section 409A(d)(1) of the Code Code) has complied at all times been operated in form compliance with its terms and operation with the operational and documentary compliance requirements of Section 409A of the Code. No current or former employee, director or Code and the Treasury Regulations and other service provider is entitled to any gross-up, make-whole or other additional payment from the Company or any of its Subsidiaries in respect of any Tax (including Federal, state, local or foreign income, excise or other Taxes (including Taxes imposed under Section 409A and 4999 of the Code)) or interest or penalty related theretoapplicable guidance thereunder.
Appears in 1 contract
Samples: Merger Agreement (Kineta, Inc./De)
Benefit Plans. (aSchedule 5.19(a) Section 3.11(a) of the Company Disclosure Letter sets forth contains a true and complete listlist of each Benefit Plan. The Company has separately identified in Schedule 5.19(a) each Benefit Plan that contains a change in control provision. No Benefit Plan is maintained, as sponsored, contributed to, or required to be contributed to by any Target Company for the benefit of employees outside of the date hereofUnited States; and no Benefit Plan is maintained through a human resources and benefits outsourcing entity, professional employer organization, or other similar vendor or provider. Neither any Target Company nor any current or former ERISA Affiliate of each such Target Company has ever made or had an obligation to make any contributions to any multi-employer plan (as defined in ERISA Section 3(37) or 4001(a)(3)) or to any “employee benefit pension plan” (within the meaning of section 3(3as defined in Section 3(2) of ERISA) subject to the Employee Retirement Income Security Act of 1974 (“ERISA”)), “multiemployer plan” (within the meaning minimum funding standards of ERISA section 3(37)or Title IV of ERISA. With respect to each Benefit Plan, the Company has made available to the Buyer accurate, current and complete copies of each of the following: (i) and where the Benefit Plan has been reduced to writing, the plan document together with all stock purchaseamendments; (ii) where the Benefit Plan has not been reduced to writing, stock optiona written summary of all material plan terms; (iii) where applicable, phantom stock copies of any trust agreements or other equity-based planfunding arrangements, severance, employment, collective bargaining, change-in-control, fringe benefit, bonus, incentive, deferred compensation and all other employee benefit and compensation plans, custodial agreements, programsinsurance policies and contracts, policies administration agreements and similar agreements, and investment management or other arrangementsinvestment advisory agreements, 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), whether formal or informal, written or oral, legally binding or not, under which any current or former employee, director or consultant ; (iv) copies of the Company or its Subsidiaries (or any of their dependents) has any present or future right to compensation or benefits or the Company or its Subsidiaries has had or has any present or future liability or with respect to which it is otherwise bound (collectively, the “Company Plans”). With respect to each Company Plan, the Company has made available to Parent a true and complete copy thereof and, to the extent applicable: (i) any related trust agreement or other funding instrument, (ii) the most recent determination letter of the Internal Revenue Service (the “IRS”), if applicable, (iii) any summary plan description descriptions, summaries of material modifications, summaries of benefits and coverage, COBRA communications, employee handbooks and any other written communications (or a description of any oral communications) by relating to any Benefit Plan; (v) in the Company or its Subsidiaries to their employees concerning the extent of the benefits provided under a Company Plan, and (iv) for the two most recent years (A) the Form 5500 and attached schedules, (B) audited financial statements, (C) actuarial valuation reports and (D) attorney’s response to an auditor’s request for information.
(b) No Company Plan is subject to Title IV of ERISA or Section 412 of the Code, no Company Plan is a multiemployer plan (within the meaning of Section 3(37) of ERISA), and neither the Company nor any member of its Controlled Group (defined as any organization which is a member of a controlled group of organizations within the meaning of Code Sections 414(b), (c), (m) or (o)) has any liability (direct or contingent) with respect to, and has never incurred any liability (director or contingent) with respect to, any employee benefit plan subject to Title IV of ERISA. No Company Plan provides health or other welfare benefits to former employees of the Company or its Subsidiaries other than health continuation coverage pursuant to COBRA.
(c) With respect to the Company Plans, except to the extent that the inaccuracy case of any of the representations set forth in this paragraph (c), individually or in the aggregate, has not been and would not reasonably be expected to be material to the Company and its Subsidiaries, taken as a whole:
(i) each Company Benefit Plan has been established and administered in accordance with its terms and in compliance with the applicable provisions of applicable Law, including ERISA and the Code, and all contributions required to be made under the terms of any Company Plan have been timely made;
(ii) each Company Plan that is intended to be qualified under Section 401(a) of the Code has received Code, a favorable copy of the most recent determination, opinion or advisory or opinion letterletter from the Internal Revenue Service and any legal opinions issued thereafter with respect to such Benefit Plan’s continued qualification; (vi) in the case of any Benefit Plan for which a Form 5500 must be filed, as a copy of the three most recently filed Forms 5500, with all corresponding schedules and financial statements attached; (vii) if applicable, actuarial valuations and reports related to any Benefit Plans with respect to the three (3) most recently completed plan years; (viii) the most recent nondiscrimination tests performed under the Code; and (ix) copies of material notices, letters or other correspondence from the IRS that it is so qualified and nothing has occurred that would reasonably be expected to cause the loss Internal Revenue Service, Department of such qualified status of such Company Plan;
(iii) there is no Action (including any investigation, audit Labor or other administrative proceeding) 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 the Company, threatened, Authority relating to the Company Plans, any fiduciaries thereof with respect to their duties to the Company Plans or the assets of any of the trusts under any of the 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;
(iv) neither the Company nor its Subsidiaries nor any of their Affiliates has incurred any direct or indirect liability under ERISA or the Code in connection with the termination of, withdrawal from or failure to fund, any Company Plan or other retirement plan or arrangement, and no fact or event exists that would reasonably be expected to give rise to any such liability; and
(v) the Company and its Subsidiaries do not maintain any Company Plan that is a “group health plan” (as such term is defined in Section 5000(b)(1) of the Code) that has not been administered and operated in all respects in compliance with the applicable requirements of Section 601 of ERISA and Section 4980B(b) of the Code, and the Company and its Subsidiaries are not subject to any liability, including additional contributions, fines, penalties or loss of Tax deductions, as a result of such administration and operation; and
(d) None of the Company Plans provides for payment of a benefit, the increase of a benefit amount, the payment of a contingent benefit, the acceleration of a payment or the 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 hereby (either alone or in conjunction with any other event). None of the Company Plans or any other plan agreement or arrangement in effect immediately prior to the Closing could result separately or in the aggregate in connection with the transactions contemplated by this Agreement (either alone or in conjunction with any other event) in the payment of any “excess parachute payment” within the meaning of Section 280G of the CodeBenefit Plan.
(e) Each Company Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A(d)(1) of the Code has complied in form and operation with the requirements of Section 409A of the Code. No current or former employee, director or other service provider is entitled to any gross-up, make-whole or other additional payment from the Company or any of its Subsidiaries in respect of any Tax (including Federal, state, local or foreign income, excise or other Taxes (including Taxes imposed under Section 409A and 4999 of the Code)) or interest or penalty related thereto.
Appears in 1 contract
Samples: Stock Purchase Agreement (First Financial Bancorp /Oh/)
Benefit Plans. (a) Section 3.11(a5.14(a) of the Company Disclosure Letter Schedule sets forth a true and complete list, list of each material Company Benefit Plan as of the date hereof, of each “employee benefit plan” (within the meaning of section 3(3) of the Employee Retirement Income Security Act of 1974 (“ERISA”)), “multiemployer plan” (within the meaning of ERISA section 3(37)) and all stock purchase, stock option, phantom stock or other equity-based plan, severance, employment, collective bargaining, 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 or required in the future as a result of the transactions contemplated by this Agreement or otherwise), whether formal or informal, written or oral, legally binding or not, under which any current or former employee, director or consultant of the Company or its Subsidiaries (or any of their dependents) has any present or future right to compensation or benefits or the Company or its Subsidiaries has had or has any present or future liability or with respect to which it is otherwise bound (collectively, the “Company Plans”)Agreement. With respect to each such Company Benefit Plan, the Company has made available to Parent Purchaser a true current, complete and complete accurate copy thereof andof, to the extent applicable: applicable (i) each such material Company Benefit Plan, including any related trust agreement material amendments thereto (or other funding instrumentto the extent such Company Benefit Plan is unwritten, an accurate written summary of the material terms thereof), (ii) the most recent determination letter currently effective trust, insurance Contract, policy, certificate of the Internal Revenue Service (the “IRS”)coverage, if applicableannuity or other funding instrument related thereto and all amendments thereto, (iii) any the current summary plan description and other written communications (or a description any summaries of any oral communications) by the Company or its Subsidiaries to their employees concerning the extent of the benefits provided under a Company Planmaterial modifications, and (iv) the most recent determination or opinion letter from the IRS, (v) for the two most recent three (3) plan years and to the extent applicable, (A) the audited financial statements, (B) actuarial or other valuation reports prepared with respect thereto (where such statements or reports are required to be prepared under applicable Law or otherwise reasonably available) and (C) Form 5500 and attached schedules, (Bvi) audited financial statements, annual testing results (Cincluding nondiscrimination and coverage) actuarial valuation reports results for the three (3) most recently completed plan years; and (Dvii) attorney’s response all non-routine correspondence received from or provided to an auditor’s request for information.
(b) No Company Plan is subject to Title IV of ERISA or Section 412 of the Code, no Company Plan is a multiemployer plan (within the meaning of Section 3(37) of ERISA), and neither the Company nor any member of its Controlled Group (defined as any organization which is a member of a controlled group of organizations within the meaning of Code Sections 414(b), (c), (m) or (o)) has any liability (direct or contingent) with respect to, and has never incurred any liability (director or contingent) with respect to, any employee benefit plan subject to Title IV of ERISA. No Company Plan provides health or other welfare benefits to former employees of the Company or its Subsidiaries other than health continuation coverage pursuant to COBRA.
(c) With respect to the Company Plans, except to the extent that the inaccuracy of any of the representations set forth in this paragraph (c), individually or in the aggregate, has not been and would not reasonably be expected to be material to the Company and its Subsidiaries, taken as a whole:
(i) each Company Plan has been established and administered in accordance with its terms and in compliance with the applicable provisions of applicable Law, including ERISA and the Code, and all contributions required to be made under the terms of any Company Plan have been timely made;
(ii) each Company Plan intended to be qualified under Section 401(a) of the Code has received a favorable determination, advisory or opinion letter, as applicable, from the IRS that it is so qualified and nothing has occurred that would reasonably be expected to cause the loss of such qualified status of such Company Plan;
(iii) there is no Action (including any investigation, audit or other administrative proceeding) by the Department of Labor, the Pension Benefit Guaranty Corporation, the IRS Internal Revenue Service or any other Governmental Entity since June 1, 2019.
(b) None of the Company or by any of its Subsidiaries sponsors, contributes to, has an obligation to contribute to or has any Liability (including on account of an ERISA Affiliate or any past period) with respect to: (i) a plan participant subject to Title IV of ERISA, including any defined benefit plan (as defined in Section 3(35) of ERISA), (ii) a multiemployer plan (as defined in Section 3(37) or beneficiary pending4001(a)(3) of ERISA), (iii) a multiple employer plan subject to Section 4063 or 4064 of ERISA, or (iv) a plan subject to Section 302 of ERISA or Section 412 of the Code. Neither the Company nor its Subsidiaries sponsors, contributes to, has an obligation to contribute to or has any Liability with respect to a multiple employer welfare arrangement (as defined in Section 3(40)(A) of ERISA) or a voluntary employees’ beneficiary association under Section 501(c)(9) of the Code. None of the Company or its Subsidiaries has any material Liability (including on account of an ERISA Affiliate) as a result of a violation of COBRA. Neither the Company or its Subsidiaries has any material Liability under Section 502(i) or 502(l) of ERISA.
(c) Each Company Benefit Plan that is intended to be tax-qualified under Section 401(a) of the Code is so qualified and, no circumstances exist (i) which would reasonably be expected to result in loss of such qualification under Section 401(a) of the Code, or (ii) which would reasonably be expected to result in a penalty under the Internal Revenue Service Closing Agreement Program if discovered during an Internal Revenue Service audit or investigation. Each such Company Benefit Plan has received a favorable and currently effective determination letter from the Internal Revenue Service or is in the form of a pre-approved plan document that is the subject of a favorable opinion or advisory letter from the Internal Revenue Service on which it is entitled to rely.
(d) Each Company Benefit Plan has been in all material respects maintained and operated in conformity with the terms of such Company Benefit Plan and with all applicable Law, including the Code and ERISA and all filing and disclosure requirements imposed on the plan sponsor thereunder. There is no pending nor, to the Knowledge of the Company, has there been any threatened, action, claim or lawsuit relating to the any Company Plans, any fiduciaries thereof with respect to their duties to the Company Plans or the assets of any of the trusts under any of the Company Plans Benefit Plan (other than routine claims for benefits) nor are there facts ). There is no audit, inquiry, investigation, or circumstances that exist that could reasonably give rise examination pending nor, to the Knowledge of the Company, has any been threatened by the IRS, the Department of Labor, the Pension Benefit Guaranty Corporation or any other Governmental Entity with respect to any such Actions;Company Benefit Plan.
(ive) neither With respect to each Company Benefit Plan for which a separate fund of assets is or is required to be maintained, full and timely payment and contribution has been made of all amounts due and required under the terms of each such Company Benefit Plan or applicable Law and all obligations for periods on or prior to the Closing Date which relate to directors, officers, employees or consultants of the Company or any of its Subsidiaries and which are not yet due have either been made or have been accrued on the Latest Balance Sheet. All premiums, fees and administrative expenses required to be paid under or in connection with the Company Benefit Plans for the period on or before the Closing Date, have been paid or have been accrued in full on the Latest Balance Sheet.
(f) The Company and its Subsidiaries have complied in all material respects 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, in each case to the extent applicable, including the employer shared responsibility provisions relating to the offer of “affordable” health coverage that provides “minimum essential coverage” to “full-time” employees (as those terms are defined in Section 4980H of the Code and related regulations) and the applicable employer information reporting requirements under Code Section 6055 and Code Section 6056 and related regulations.
(g) There is no pending or threatened action, claim or lawsuit relating to any Company Benefit Plan (other than routine claims for benefits). There is no audit, inquiry, investigation, or examination pending or threatened by the Internal Revenue Service, the Department of Labor, the Pension Benefit Guaranty Corporation or any other Governmental Entity with respect to any Company Benefit Plan.
(h) No fiduciary (within the meaning of Section 3(21) of ERISA) of any Company Benefit Plan subject to Part 4 of Subtitle B of Title I of ERISA has committed a breach of fiduciary duty with respect to that Company Benefit Plan that would subject the Company or its Subsidiaries to any material Liability (including liability on account of an indemnification obligation with respect to any Company Employee). Neither the Company nor its Subsidiaries nor any of their Affiliates has have incurred any direct or indirect liability material excise Taxes under ERISA or Chapter 43 of the Code in connection with the termination of, withdrawal from or failure respect to fund, any Company Benefit Plan or other retirement plan or arrangement, and no fact or event exists nothing has occurred with respect to any Company Benefit Plan that would reasonably be expected to give rise subject Company nor its Subsidiaries to any such liability; andmaterial excise Taxes.
(vi) No Company Benefit Plan or the Company and or any of its Subsidiaries do provides, or has any obligation to provide, current or former employees of the Company or any of its Subsidiaries (or any beneficiaries thereof) welfare benefits (including medical or life insurance benefits) after such Person terminates employment with the Company or any of its Subsidiaries, except for the coverage continuation requirements of COBRA, continued coverage until the end of the month during which termination occurs or disability or death benefits relating to disabilities or deaths occurring prior to termination of employment. No Company Benefit Plan or the Company or any of its Subsidiaries provides, or has any obligation to provide welfare benefits to any Person who is not maintain a current or former employee of the Company or any of its Subsidiaries, or a spouse, dependent or beneficiary thereof.
(j) Each Company Benefit Plan that is constitutes a “group health plan” (as such term is defined in nonqualified deferred compensation plan within the meaning of Section 5000(b)(1) 409A of the Code) that Code has not been administered administered, operated and operated maintained in all material respects in compliance with according to the applicable requirements of Section 601 of ERISA and Section 4980B(b) 409A of the Code, and neither the Company and nor any of its Subsidiaries are not subject is or has been required to withhold or pay any liability, including additional contributions, fines, penalties or loss of Tax deductions, Taxes as a result of such administration and operation; anda failure to comply with Section 409A of the Code. Neither the Company nor any of its Subsidiaries has any obligation to make a “gross-up” or similar payment in respect of any Taxes that may become payable under Section 409A of the Code.
(dk) None Except as set forth in Section 5.14(k) of the Company Plans provides for payment of Disclosure Schedule or to the extent resulting solely from a benefitPurchaser Payment, the increase of a benefit amount, the payment of a contingent benefit, the acceleration of a payment or the vesting of a benefit determined or occasioned, in whole or in part, by reason of neither the execution and delivery of this Agreement or any Transaction Agreement nor the consummation of the transactions contemplated hereby or thereby will (either alone or in combination with another event) (i) entitle any current or former director, officer, employee or individual consultant to any payment (including severance pay or similar compensation), any cancellation of indebtedness, or any increase in compensation; (ii) result in the acceleration of payment, funding or vesting under any Company Benefit Plan; (iii) result in any increase in benefits payable under any Company Benefit Plan or (iv) result in a payment to a Company Employee in respect of their notice period. No amount paid or payable (whether in cash, in property, or in the form of benefits) in connection with the transactions contemplated hereby (either alone or in conjunction combination with any other event). None of the Company Plans or any other plan agreement or arrangement in effect immediately prior to the Closing could result separately or in the aggregate in connection with the transactions contemplated by this Agreement (either alone or in conjunction with any other another event) in the payment of any will be an “excess parachute payment” within the meaning of Section 280G of the Code.
(e) Each Company Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A(d)(1) of the Code has complied in form and operation with the requirements of Section 409A of the Code. No current or former employee, director or other service provider is entitled to any gross-up, make-whole or other additional payment from Neither the Company or nor any of its Subsidiaries has any obligation to make a “gross-up” or similar payment in respect of any Tax (including Federal, state, local or foreign income, excise or other Taxes (including Taxes imposed that may become payable under Section 409A and 4999 of the Code).
(l) Neither the Company nor any of its Subsidiaries has any obligation to provide redundancy or interest severance pay greater than the statutory minimum to any employee located outside the United States, and neither the Company nor any of its Subsidiaries has a policy or penalty related theretopractice of providing such redundancy or severance pay.
(m) With respect to each Company Benefit Plan maintained primarily for employees and former employees located outside the United States (each, an “International Plan”): (i) if intended to qualify for special Tax treatment, each International Plan is so qualified, (ii) if required to be registered with a Governmental Entity, is so registered, and (iii) the fair market value of the assets of each International Plan, the liability of each insurer for any International Plan funded through insurance, or the book reserve established for any such plan, together with any accrued contributions, is sufficient to procure or provide for the accrued benefit obligations, as of the date of this Agreement, with respect to all current and former participants in such plan according to the actuarial assumptions and valuations most recently used to determine employer contributions to such plan. Neither the Company nor any of its Subsidiaries has been a party to, a sponsoring employer of, or otherwise is under any liability with respect to any defined benefit pension scheme, any final salary scheme or any death, disability or retirement benefit calculated by reference to age, salary or length of service or any other item.
Appears in 1 contract
Samples: Stock Purchase Agreement (Arthur J. Gallagher & Co.)
Benefit Plans. (a) Set forth in Section 3.11(a4.15(a) of the Company Disclosure Letter sets forth is a true and complete listlist of each material Seller Benefit Plan (including a designation of whether the Seller Benefit Plan is (i) a Sold Company Plan or (ii) a Foreign Plan). No Sold Company Plan provides benefits to, or otherwise covers, any individual who is not an Employee, Former Employee, or the dependents or beneficiaries thereof. For any Seller Benefit Plan that is an individual employment agreement, Section 4.15(a) of the Disclosure Letter identifies only the forms of the standard individual employment or consulting agreements that are generally and currently in use in each country or jurisdiction and describes the applicable jurisdiction and category of employee applicable thereto (a “Form of Agreement”), and specifically lists those individual employment or consulting agreements that vary materially from the Form of Agreement.
(b) Except to the extent that disclosure would not be permitted under applicable Laws, including applicable privacy Law and the GDPR, with respect to each material Seller Benefit Plan (including each Assumed Plan), the Company has made available to the Buyer current, true and complete copies, as of the date hereofapplicable, of each “employee benefit such plan” ’s governing document and any amendments thereto or a written summary of all material terms if the plan has not been reduced to writing (within it being understood that the meaning obligation to furnish an employment or consulting agreement shall be deemed to have been satisfied by providing the applicable Form of section 3(3) Agreement (unless such agreement varies materially from the Form of the Employee Retirement Income Security Act of 1974 (“ERISA”)Agreement, in which case the specific agreement has been provided) and that any individual employment agreements made available have been provided in a manner that is intended to be consistent with Section 4.14(a), “multiemployer plan” (within the meaning of ERISA section 3(37)) with certain personal information redacted to delete certain personal information and all stock purchase, stock option, phantom stock or other equity-based plan, severance, employment, collective bargaining, 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 or required in the future as a result of the transactions contemplated by this Agreement or otherwise), whether formal or informal, written or oral, legally binding or not, under which any current or former employee, director or consultant of the Company or its Subsidiaries (or any of their dependents) has any present or future right to compensation or benefits or the Company or its Subsidiaries has had or has any present or future liability or comply with respect to which it is otherwise bound (collectively, the “Company Plans”applicable data privacy Laws). With respect to each Company Assumed Plan, the Company has made available to Parent a true and complete copy thereof and, to the extent applicable: Buyer (i) the most recent summary plan description, (ii) any related trust agreement or other funding instrumentvehicle and any current administrative or service contract or insurance policy, (iiiii) the most recent annual report on IRS Form 5500 and the most recent actuarial report, financial statements or similar reports or statements and (iv) the most recent determination or opinion letter received from the IRS with respect to each such plan intended to qualify under Section 401 of the Internal Revenue Service (the “IRS”), if applicable, (iii) any summary plan description and other written communications (or a description of any oral communications) by the Company or its Subsidiaries to their employees concerning the extent of the benefits provided under a Company Plan, and (iv) for the two most recent years (A) the Form 5500 and attached schedules, (B) audited financial statements, (C) actuarial valuation reports and (D) attorney’s response to an auditor’s request for informationCode.
(bc) No Each Seller Benefit Plan has been established, maintained, operated, funded and administered in compliance in all respects with its terms and all applicable Laws, except for such instances of noncompliance that would not, individually or in the aggregate, reasonably be expected to result in a material Liability to any Sold Company or any Sold Subsidiary. Each Seller Benefit Plan that is required by applicable Law to be funded and/or book-reserved is funded and/or book reserved, as required, based upon reasonable actuarial assumptions. Other than routine claims for benefits, there are no suits, Claims, proceedings, Actions, governmental audits or investigations that are pending or threatened against or involving any Seller Benefit Plan or asserting any rights to or claims for benefits under any Seller Benefit Plan, except as would not, individually or in the aggregate, reasonably be expected to result in a material Liability to any Sold Company or any Sold Subsidiary. None of the Sold Companies or any of the Sold Subsidiaries has incurred (whether or not assessed), or is reasonably expected to incur or to be subject to, any Tax or other material penalty under Section 4980B, 4980D or 4980H of the Code or with respect to the reporting requirements under Sections 6055 and 6056 of the Code, as applicable.
(d) The IRS has issued a current favorable determination letter or, for a prototype plan, a current opinion letter, with respect to each Seller Benefit Plan that is intended to be qualified within the meaning of Section 401(a) of the Code or, if no such determination has been made, either an application for such determination is pending with the IRS or the time within which such determination may be sought from the IRS has not yet expired, and nothing has occurred that would reasonably be expected to affect the qualified status of such Seller Benefit Plan. Each Foreign Plan required to be registered or intended to meet certain regulatory or requirements for favorable tax treatment has been timely and properly registered and has been maintained in good standing with the applicable regulatory authorities and requirements.
(e) None of the Sold Companies, the Sold Subsidiaries, the Sellers, or any ERISA Affiliate sponsors, maintains, contributes to, or has any Liability (contingent or otherwise) with respect to (i) any “multiemployer plan,” as that term is defined in Section 3(37) of ERISA; (ii) any “employee benefit plan” that is subject to Title IV of ERISA or Section 412 or 430 of the Code; or (iii) any plan, program or arrangement that provides for post-employment or post-retirement medical, health or life insurance benefits, except as required by applicable Law or to avoid excise tax under Section 4980B of the Code, no Company Plan is a multiemployer plan (within in each case, for which the meaning covered Person pays the full cost of Section 3(37) of ERISA), and neither the Company nor any member of its Controlled Group (defined as any organization which is a member of a controlled group of organizations within the meaning of Code Sections 414(b), (c), (m) or (o)) has any liability (direct or contingent) with respect to, and has never incurred any liability (director or contingent) with respect to, any employee benefit plan subject to Title IV of ERISA. No Company Plan provides health or other welfare benefits to former employees of the Company or its Subsidiaries other than health continuation coverage pursuant to COBRAcoverage.
(cf) With respect to the Company Plans, except to the extent that the inaccuracy of any of the representations set forth in this paragraph (c), individually or in the aggregate, has not been and would not reasonably be expected to be material to the Company and its Subsidiaries, taken as a whole:
(i) each Company Plan has been established and administered in accordance with its terms and in compliance with the applicable provisions of applicable Law, including ERISA and the Code, and all contributions required to be made under the terms of any Company Plan have been timely made;
(ii) each Company Plan intended to be qualified under Section 401(a) of the Code has received a favorable determination, advisory or opinion letter, as applicable, from the IRS that it is so qualified and nothing has occurred that would reasonably be expected to cause the loss of such qualified status of such Company Plan;
(iii) there is no Action (including any investigation, audit or other administrative proceeding) 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 the Company, threatened, relating to the Company Plans, any fiduciaries thereof with respect to their duties to the Company Plans or the assets of any of the trusts under any of the 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;
(iv) neither the Company nor its Subsidiaries nor any of their Affiliates has incurred any direct or indirect liability under ERISA or the Code in connection with the termination of, withdrawal from or failure to fund, any Company Plan or other retirement plan or arrangement, and no fact or event exists that would reasonably be expected to give rise to any such liability; and
(v) the Company and its Subsidiaries do not maintain any Company Plan that is a “group health plan” (as such term is defined in Section 5000(b)(1) of the Code) that has not been administered and operated in all respects in compliance with the applicable requirements of Section 601 of ERISA and Section 4980B(b) of the Code, and the Company and its Subsidiaries are not subject to any liability, including additional contributions, fines, penalties or loss of Tax deductions, as a result of such administration and operation; and
(d) None of the Company Plans provides for payment of a benefit, the increase of a benefit amount, the payment of a contingent benefit, the acceleration of a payment or the vesting of a benefit determined or occasioned, in whole or in part, by reason of Neither the execution and delivery of this Agreement or Agreement, nor the consummation of the transactions contemplated hereby (either alone or in conjunction with any other event). None , will cause any (i) compensatory payments, for which the Buyer, the Sold Companies or the Sold Subsidiaries would have any Liability, to become due or payable to any current or former consultant, contractor, Employee or Former Employee, (ii) acceleration, vesting, cancellation of indebtedness or increase in any compensation or benefits, for which the Buyer, the Sold Companies or the Sold Subsidiaries would have any Liability, to any current or former consultant, contractor, Employee or Former Employee, (iii) forfeiture of equity-based compensation under any Seller Benefit Plan by any Employee or Former Employee, or (iv) Sold Company or Sold Subsidiary to be required to transfer or set aside any assets to fund any benefits under any Assumed Plan, or limit or restrict in any respect the right of the Buyer, any Sold Company Plans or any other plan agreement Sold Subsidiary to amend, terminate or arrangement in effect immediately prior to transfer the Closing could result separately or in assets of any Assumed Plan. Neither the aggregate in connection with execution and delivery of this Agreement, nor the consummation of the transactions contemplated by this Agreement (either alone herein, will constitute a “change in ownership or control” or “change in conjunction with any other event) in the payment effective control” of any “excess parachute payment” a corporation within the meaning of Section 280G of the Code. No current or former consultant, contractor, Employee or Former Employee is entitled to receive any additional payment (including any tax gross-up or other payment) for which the Buyer, any Sold Company or any Sold Subsidiary would have any Liability as a result of the imposition of the excise taxes required by Section 4999 of the Code or any taxes required by Section 409A of the Code.
(eg) Each Company Assumed Plan that is a “nonqualified deferred compensation plan” within the meaning of (as defined in Section 409A(d)(1) of the Code Code) is in documentary compliance with, and has complied been administered in form and operation with the requirements of compliance with, Section 409A of the Code. No current or former employee, director or other service provider is entitled to any gross-up, make-whole or other additional payment from the Company or any of its Subsidiaries in respect of any Tax (including Federal, state, local or foreign income, excise or other Taxes (including Taxes imposed under Section 409A and 4999 of the Code)) or interest or penalty related thereto.
Appears in 1 contract
Benefit Plans. (a) Section 3.11(aSchedule 3.19(a) of the Company Disclosure Letter Schedule sets forth a true and complete list, as of the date hereof, of each “all material employee benefit plan” plans, programs, policies, practices, agreements and arrangements (within the meaning of section including, but not limited to, all plans described in Section 3(3) of the Employee Retirement Income Security Act of 1974 1974, as amended (“ERISA”)), “multiemployer plan” (within ) maintained or contributed to by the meaning Company for the benefit of ERISA section 3(37)) and all stock purchase, stock option, phantom stock or other equity-based plan, severance, employment, collective bargaining, 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 or required in the future as a result of the transactions contemplated by this Agreement or otherwise), whether formal or informal, written or oral, legally binding or not, under which any its current or former employeeofficers, director employees, directors or consultant of the Company or its Subsidiaries (or any of their dependents) has any present or future right to compensation or benefits or the Company or its Subsidiaries has had or has any present or future liability independent contractors, or with respect to which it is otherwise bound (collectively, the “Company Plans”). With respect to each Company Plan, the Company has made available (or reasonably could be expected to Parent a true and complete copy thereof and, to the extent applicable: (ihave) any related trust agreement obligation or other funding instrumentliability (including, (ii) the most recent determination letter of the Internal Revenue Service (the “IRS”)but not limited to, if applicable, (iii) any summary plan description and other written communications (or a description of any oral communications) by the Company or its Subsidiaries to their employees concerning the extent of the benefits provided liabilities arising from affiliation under a Company Plan, and (iv) for the two most recent years (A) the Form 5500 and attached schedules, (B) audited financial statements, (C) actuarial valuation reports and (D) attorney’s response to an auditor’s request for information.
(b) No Company Plan is subject to Title IV of ERISA or Section 412 of the Code, no Company Plan is a multiemployer plan (within the meaning of Section 3(37) of ERISA), and neither the Company nor any member of its Controlled Group (defined as any organization which is a member of a controlled group of organizations within the meaning of Code Sections 414(b), (c), (m) or (o)) has any liability (direct or contingent) with respect to, and has never incurred any liability (director or contingent) with respect to, any employee benefit plan subject to Title IV of ERISA. No Company Plan provides health or other welfare benefits to former employees of the Company or its Subsidiaries other than health continuation coverage pursuant to COBRA.
(c) With respect to the Company Plans, except to the extent that the inaccuracy of any of the representations set forth in this paragraph (c), individually or in the aggregate, has not been and would not reasonably be expected to be material to the Company and its Subsidiaries, taken as a whole:
(i) each Company Plan has been established and administered in accordance with its terms and in compliance with the applicable provisions of applicable Law, including ERISA and the Code, and all contributions required to be made under the terms of any Company Plan have been timely made;
(ii) each Company Plan intended to be qualified under Section 401(a) of the Code has received a favorable determination, advisory or opinion letter, as applicable, from the IRS that it is so qualified and nothing has occurred that would reasonably be expected to cause the loss of such qualified status of such Company Plan;
(iii) there is no Action (including any investigation, audit or other administrative proceeding) 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 the Company, threatened, relating to the Company Plans, any fiduciaries thereof with respect to their duties to the Company Plans or the assets of any of the trusts under any of the 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;
(iv) neither the Company nor its Subsidiaries nor any of their Affiliates has incurred any direct or indirect liability under ERISA or the Code in connection with the termination of, withdrawal from or failure to fund, any Company Plan or other retirement plan or arrangement, and no fact or event exists that would reasonably be expected to give rise to any such liability; and
(v) the Company and its Subsidiaries do not maintain any Company Plan that is a “group health plan” (as such term is defined in Section 5000(b)(1) of the Code) that has not been administered and operated in all respects in compliance with the applicable requirements of Section 601 of ERISA and Section 4980B(b) of the Code, or Section 4001 of ERISA) (each, a “Benefit Plan” and collectively, the “Benefit Plans”). Except as disclosed on Schedule 3.19 of the Disclosure Schedule, there has been no amendment or announcement (written or oral) by the Company and its Subsidiaries are not subject relating to a change in participation or coverage under, any liability, including additional contributions, fines, penalties Benefit Plan that could reasonably be expected to materially increase the expense of maintaining such Benefit Plan above the level of expense incurred with respect thereto for the most recent fiscal year included in the financial statements provided pursuant to Section 3.7. Each Benefit Plan can be terminated by the Company at any time without material liability or loss of Tax deductions, as a result expense (other than for any benefits accrued thereunder at the time of such administration and operation; and
(d) termination). None of the Company Plans provides for payment of a benefit, the increase of a benefit amount, the payment of a contingent benefit, the acceleration of a payment or the vesting of a benefit determined or occasioned, in whole or in part, by reason rights of the execution of this Agreement or Company under any Benefit Plan will be impaired in any way by the consummation of the transactions contemplated hereby (either alone or in conjunction with any other event). None of the Company Plans or any other plan agreement or arrangement in effect immediately prior to the Closing could result separately or in the aggregate in connection with the transactions contemplated by this Agreement (either alone or in conjunction with any other event) in the payment of any “excess parachute payment” within the meaning of Section 280G of the CodeAgreement.
(eb) Each With respect to each Benefit Plan, the Company has made available to the Buyer (to the extent applicable to such Benefit Plan) true and complete copies of: (i) all documents embodying such Benefit Plan that (including all amendments thereto) or, if such Benefit Plan is not in writing, a “nonqualified deferred compensation plan” within written description of such Benefit Plan; (ii) the meaning last three annual reports (Form 5500 series and all schedules and financial statements attached thereto) filed with respect to such Benefit Plan; (iii) the most recent summary plan description, and all summaries of Section 409A(d)(1material modifications related thereto, distributed with respect to such Benefit Plan; (iv) of the Code has complied in form all contracts and operation with the requirements of Section 409A of the Code. No current or former employeeagreements (and any amendments thereto) relating to such Benefit Plan, director or other including, without limitation, all trust agreements, investment management agreements, annuity contracts, insurance contracts, bonds, indemnification agreements and service provider is entitled to any gross-up, make-whole or other additional payment from the Company or any of its Subsidiaries in respect of any Tax (including Federal, state, local or foreign income, excise or other Taxes (including Taxes imposed under Section 409A and 4999 of the Code)) or interest or penalty related thereto.agreements;
Appears in 1 contract
Samples: Stock Purchase Agreement
Benefit Plans. (ai) Section 3.11(aThe Exceptions Schedule lists all (A) of pension, retirement, profit sharing, deferred compensation, stock option, stock ownership, severance pay, vacation, bonus, and incentive plans or arrangements, (B) medical, vision, dental or other health plans, policies or arrangements, (C) life, health or disability plans, policies or arrangements, (D) employment, retention or severance contracts or arrangements and (E) fringe benefits or perquisites, provided or which may be provided by it, Holding or Bank, to any present or past employee, director or the Company Disclosure Letter sets forth a true spouse or beneficiaries thereof (collectively, the "Benefits"). True and complete listcopies of all Benefit documents and written agreements established or maintained and currently in force during the preceding five years, together with copies of any tax determination letters, trust agreements, summary plan descriptions, insurance contracts, investment management agreements established or maintained during the preceding five years and the three most recent annual reports on form series 5500 with respect to any plan or arrangement have been made available to MidSouth.
(ii) Except for the plans identified as such on the Exceptions Schedule (the "Plans"), each of the date hereofit, of each “Holding and Bank has not at any time sponsored, maintained or contributed to any employee benefit plan” (within the meaning of section 3(3) of plan that is subject to the Employee Retirement Income Security Act of 1974 (“"ERISA”)"), “multiemployer plan” in which any employee is or was a participant. All contributions required by it have been made, all insurance premiums required have been paid and each Plan has been maintained and administered in all material respects in compliance with its terms and all applicable laws. No transaction has occurred that could result in the imposition of a tax or penalty under the Internal Revenue Code (the "Code") or ERISA; there is no matter relating to any such Plan pending or threatened, nor, to its, Holding's and Bank's knowledge, are there any circumstances that could lead to (other than routine filings such as qualification determination filings) proceedings before, or administrative actions by, any governmental agency; there are no Actions pending or threatened (including, without limitation, breach of fiduciary duty actions, but excluding routine uncontested claims for benefits) against any such Plan or its assets. Each of it, Holding and Bank has complied in all material respects with the reporting and disclosure requirements of ERISA and the Code. No Plan is a multi-employer plan within the meaning of ERISA section 3(37)) and all stock purchase, stock option, phantom stock ERISA. A favorable determination or other equity-based plan, severance, employment, collective bargaining, 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 or required in opinion letter has been issued by the future as a result of the transactions contemplated by this Agreement or otherwise), whether formal or informal, written or oral, legally binding or not, under which any current or former employee, director or consultant of the Company or its Subsidiaries (or any of their dependents) has any present or future right to compensation or benefits or the Company or its Subsidiaries has had or has any present or future liability or IRS with respect to which it is otherwise bound (collectively, the “Company Plans”). With respect to each Company Plan, the Company has made available to Parent a true and complete copy thereof and, to the extent applicable: (i) any related trust agreement or other funding instrument, (ii) the most recent determination letter of the Internal Revenue Service (the “IRS”), if applicable, (iii) any summary plan description and other written communications (or a description of any oral communications) by the Company or its Subsidiaries to their employees concerning the extent of the benefits provided under a Company Plan, and (iv) for the two most recent years (A) the Form 5500 and attached schedules, (B) audited financial statements, (C) actuarial valuation reports and (D) attorney’s response to an auditor’s request for information.
(b) No Company Plan is subject to Title IV of ERISA or Section 412 of the Code, no Company Plan is a multiemployer plan (within the meaning of Section 3(37) of ERISA), and neither the Company nor any member of its Controlled Group (defined as any organization which is a member of a controlled group of organizations within the meaning of Code Sections 414(b), (c), (m) or (o)) has any liability (direct or contingent) with respect to, and has never incurred any liability (director or contingent) with respect to, any employee benefit plan subject to Title IV of ERISA. No Company Plan provides health or other welfare benefits to former employees of the Company or its Subsidiaries other than health continuation coverage pursuant to COBRA.
(c) With respect to the Company Plans, except to the extent that the inaccuracy of any of the representations set forth in this paragraph (c), individually or in the aggregate, has not been and would not reasonably be expected to be material to the Company and its Subsidiaries, taken as a whole:
(i) each Company Plan has been established and administered in accordance with its terms and in compliance with the applicable provisions of applicable Law, including ERISA and the Code, and all contributions required to be made under the terms of any Company Plan have been timely made;
(ii) each Company Plan intended to be qualified under Code Section 401(a) of the Code has received a favorable determination), advisory or opinion letter, as applicable, from the IRS that it is so qualified has taken no action to revoke any such letter and nothing has occurred that which would reasonably be expected to cause the loss of such qualified status qualification. Each of such Company Plan;it, Holding and Bank has not sponsored, maintained or made contributions to any arrangement subject to ERISA Title IV or to Code Section 412 or providing for post-retirement medical benefits.
(iii) there is no Action (including All group health plans of it, Holding and Bank to which Code Section 4980B(f) or ERISA Section 601 applies are in full compliance with the continuation coverage requirements of Code Section 4980B(f) and ERISA Section 601 and any investigation, audit or other administrative proceeding) by the Department prior violations 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 the Company, threatened, relating to the Company Plans, any fiduciaries thereof with respect to their duties to the Company Plans or the assets of any of the trusts under any of the 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;Sections have been cured.
(iv) neither Except as expressly provided in section 4.13 and section 4.15, the Company nor its Subsidiaries nor Merger will not (A) result in the imposition of any obligation or liability on it, Holding, Bank or MidSouth to provide Benefits or make any payment to any of their Affiliates has incurred any direct its current or indirect liability under ERISA former employees or the Code (B) result in connection with the termination of, withdrawal from or failure to fund, any Company Plan or other retirement plan or arrangement, and no fact or event exists that would reasonably be expected to give rise to any such liability; and
(v) the Company and its Subsidiaries do not maintain any Company Plan that is a “group health plan” (prohibited transaction as such term is defined used in Code Section 5000(b)(1) of the Code) that has not been administered and operated in all respects in compliance with the applicable requirements of 4975 or ERISA Section 601 of ERISA and Section 4980B(b) of the Code, and the Company and its Subsidiaries are not subject to any liability, including additional contributions, fines, penalties or loss of Tax deductions, as a result of such administration and operation; and
(d) None of the Company Plans provides for payment of a benefit, the increase of a benefit amount, the payment of a contingent benefit, the acceleration of a payment or the 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 hereby (either alone or in conjunction with any other event). None of the Company Plans or any other plan agreement or arrangement in effect immediately prior to the Closing could result separately or in the aggregate in connection with the transactions contemplated by this Agreement (either alone or in conjunction with any other event) in the payment of any “excess parachute payment” within the meaning of Section 280G of the Code406.
(e) Each Company Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A(d)(1) of the Code has complied in form and operation with the requirements of Section 409A of the Code. No current or former employee, director or other service provider is entitled to any gross-up, make-whole or other additional payment from the Company or any of its Subsidiaries in respect of any Tax (including Federal, state, local or foreign income, excise or other Taxes (including Taxes imposed under Section 409A and 4999 of the Code)) or interest or penalty related thereto.
Appears in 1 contract
Benefit Plans. (a) For purposes of this Section 3.11(a) 3.13, the term “Plan” means any of the following that is maintained by the Company Disclosure Letter sets forth a true and complete listor any of its Subsidiaries or to which the Company or any of its Subsidiaries contributes or is obligated to contribute or under which the Company or any of its Subsidiaries directly or indirectly provides payments or benefits to one or more employees or former employees of, as or current or former consultants or other service providers to, the Company or any of its Subsidiaries or to any beneficiary of any of the date hereof, of each “foregoing: an employee benefit plan” plan (within the meaning of section as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974 1974, as amended (“ERISA”)); a plan, “multiemployer plan” policy, agreement or arrangement that would be an employee benefit plan (within as so defined) but for the meaning of ERISA section 3(37)) and all stock purchasefact that it benefits non-employee service providers; and/or any other deferred compensation, incentive, severance, insurance, welfare, stock option, other stock-based or phantom stock stock-based, fringe-benefit or other equity-based benefit plan, severancepolicy, employment, collective bargaining, change-in-control, fringe benefit, bonus, incentive, deferred compensation and all other employee benefit and compensation plans, agreements, programs, policies agreement or other arrangementsarrangement of any kind or description, whether or not reduced to writing. Section 3.13(a) of the Disclosure Schedule includes a true and complete list of all Plans subject to ERISA (including any funding mechanism therefor now in effect or required in the future as a result laws of the transactions contemplated by this Agreement or otherwise), whether formal or informal, written or oral, legally binding or not, under which any current or former employee, director or consultant United States and a description of all Foreign Benefit Plans. Except as set forth on Section 3.13(a) of the Company or its Subsidiaries (or any of their dependents) has any present or future right to compensation or benefits or the Company or its Subsidiaries has had or has any present or future liability or with respect to which it is otherwise bound (collectively, the “Company Plans”). With respect to each Company PlanDisclosure Schedule, the Company has made available provided to Parent a complete copy of each Plan that has been reduced to writing, together with all amendments, a written summary of the material terms of each Plan that has not been reduced to writing, and, in the case of each Plan, a true and complete copy thereof and, of each of the following that exists and relates to the extent applicablesuch Plan: (i) any related each trust agreement or other funding instrumentarrangement; each insurance contract; each administrative services agreement and recordkeeping agreement; each summary plan description or similar summary, (ii) together with all summaries of material modifications and other amendments; the most recent determination letter of or opinion letter received from the Internal Revenue Service (the “IRS”); the three most recently filed Form 5500 Series annual reports, if applicabletogether with all schedules, (iii) any summary plan description and other written communications (or a description of any oral communications) by the Company or its Subsidiaries to their employees concerning the extent of the benefits provided under a Company Planattachments, and (iv) for related opinions; and any correspondence from or to the two most recent years (A) IRS, the Form 5500 and attached schedulesDepartment of Labor, (B) audited financial statements, (C) actuarial valuation reports and (D) attorney’s response or other government department or agency relating to an auditor’s request for informationaudit or penalty assessment or to requested relief from any liability or penalty relating to any Plan.
(b) No Except as set forth in Section 3.13(b) of the Disclosure Schedule, each Plan has been administered in all material respects in compliance with its terms and with applicable law, including the Code. Without limiting the generality of the foregoing, to the Knowledge of the Company and its Subsidiaries, (i) no non-exempt “prohibited transaction” as defined in Section 406 of ERISA or Section 4975 of the Code has occurred with respect to any Plan subject to ERISA, and (ii) no event has occurred nor does any fact exist that could reasonably be expected to give rise to a liability under Title I or Title IV of ERISA, or to an excise tax under Chapter 43 of the Code, with respect to any Plan. Each Plan that is intended to qualify under Section 401(a) of the Code et seq. has received from the IRS a determination letter or opinion so stating; and there are no facts that could reasonably be expected to have an adverse effect on such qualification.
(c) Neither the Company nor any of its Subsidiaries maintains or contributes to, or has ever maintained or been required to contribute to, any single employer plan (as such term is defined in Section 4001(b) of ERISA) subject to Title IV of ERISA or Section 412 of the Code, no Company Plan is a any “multiemployer plan (within the meaning of Section 3(37) of ERISA), and neither the Company nor any member of its Controlled Group (defined as any organization which is a member of a controlled group of organizations within the meaning of Code Sections 414(b), (c), (m) or (o)) has any liability (direct or contingent) with respect to, and has never incurred any liability (director or contingent) with respect to, any employee benefit plan subject to Title IV of ERISA. No Company Plan provides health or other welfare benefits to former employees of the Company or its Subsidiaries other than health continuation coverage pursuant to COBRA.
(c) With respect to the Company Plans, except to the extent that the inaccuracy of any of the representations set forth in this paragraph (c), individually or in the aggregate, has not been and would not reasonably be expected to be material to the Company and its Subsidiaries, taken as a whole:
(i) each Company Plan has been established and administered in accordance with its terms and in compliance with the applicable provisions of applicable Law, including ERISA and the Code, and all contributions required to be made under the terms of any Company Plan have been timely made;
(ii) each Company Plan intended to be qualified under Section 401(a) of the Code has received a favorable determination, advisory or opinion letter, as applicable, from the IRS that it is so qualified and nothing has occurred that would reasonably be expected to cause the loss of such qualified status of such Company Plan;
(iii) there is no Action (including any investigation, audit or other administrative proceeding) 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 the Company, threatened, relating to the Company Plans, any fiduciaries thereof with respect to their duties to the Company Plans or the assets of any of the trusts under any of the 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;
(iv) neither the Company nor its Subsidiaries nor any of their Affiliates has incurred any direct or indirect liability under ERISA or the Code in connection with the termination of, withdrawal from or failure to fund, any Company Plan or other retirement plan or arrangement, and no fact or event exists that would reasonably be expected to give rise to any such liability; and
(v) the Company and its Subsidiaries do not maintain any Company Plan that is a “group health plan” (as such term is defined in Section 5000(b)(13(37) of the Code) that ERISA), nor has not been administered and operated in all respects in compliance with the applicable requirements any of Section 601 of ERISA and Section 4980B(b) of the Code, and the Company and its Subsidiaries are not subject to them incurred any liability, including additional contributionsincluding, fineswithout limitation, penalties or loss of Tax deductionswithdrawal liability, as a result of with respect to any such administration and operation; andplan.
(d) None of the Company Plans provides for payment of No Plan is funded by, associated with or related to a benefit, the increase of a benefit amount, the payment of a contingent benefit, the acceleration of a payment or the 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 hereby (either alone or in conjunction with any other event). None of the Company Plans or any other plan agreement or arrangement in effect immediately prior to the Closing could result separately or in the aggregate in connection with the transactions contemplated by this Agreement (either alone or in conjunction with any other event) in the payment of any “excess parachute paymentvoluntary employees’ beneficiary association” within the meaning of Section 280G 501(c)(9) of the Code.
(e) Each Company Plan that is a “nonqualified deferred compensation plan” within the meaning of Except as set forth in Section 409A(d)(13.13(e) of the Code Disclosure Schedule, 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 Plan as required to be made under the terms of such Plan and applicable law.
(f) There are no actions, suits, arbitrations or claims (other than routine claims for benefits by employees or by beneficiaries or dependents of such employees arising in the normal course of operation of a Plan) pending, or to the Knowledge of the Company and its Subsidiaries, threatened, with respect to any Plan or any fiduciary or sponsor of a Plan with respect to their duties under such Plan or the assets of any trust under any such Plan.
(g) The Company and its Subsidiaries have complied in form and operation all material respects with the health care continuation requirements of Section 409A 601 et. seq. of ERISA with respect to employees and their spouses, former spouses and dependents.
(h) Neither the Code. No current or former employee, director Company nor any of its Subsidiaries has any obligations under any Plan to provide post-retirement medical or other service provider is entitled welfare benefits to any gross-up, make-whole employee or other additional payment from any former employee of the Company or any of its Subsidiaries in respect or to any other person, other than statutory liability for providing group health plan continuation coverage under Part 6 of Subtitle B of Title I of ERISA and Section 4980B of the Code or under applicable state law.
(i) Except for the satisfaction of such advance notice periods as may be imposed by law, each Plan (other than individual agreements) may be terminated, suspended, amended and/or curtailed at any time, as to the continuation or accrual of future benefits, without the consent of any Tax participant or beneficiary.
(including Federalj) Without limiting the generality of (b) through (i) above, statewith respect to each Plan that is subject to the laws of a jurisdiction other than the United States (whether or not United States law also applies) (a “Foreign Benefit Plan”): (i) all contributions of the Company, local its Subsidiaries and employees of the Company and its Subsidiaries to each Foreign Benefit Plan required by any Legal Requirement or foreign incomeby the terms of such Foreign Benefit Plan have been made, excise or if, applicable accrued in accordance with normal accounting practices; (ii) the fair market value of the assets of each funded Foreign Benefit Plan, the liability of each insurer for benefit obligations under 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 date of this Agreement, with respect to all current and former participants in such plan according to reasonable actuarial assumptions and no transaction contemplated by this Agreement shall cause such assets, reserve or insurance obligations to be less than such benefit obligations, and (iii) each Foreign Benefit Plan required to be registered has been registered and has been maintained in good standing with applicable regulatory authorities.
(k) Except as set forth in Section 3.13(k) of the Disclosure Schedule there are no issued or outstanding stock rights, stock appreciation rights, phantom stock awards, restricted stock awards, dividend equivalent awards, or other Taxes (including Taxes imposed under Section 409A and 4999 stock-based awards or similar rights pursuant to which any Person is or may be entitled to receive any payment or other consideration or value based upon, relating to, or valued by reference to, the dividends paid on the capital stock of any Subsidiary of the Code)) or interest or penalty related theretoCompany.
Appears in 1 contract
Benefit Plans. (a) Section 3.11(a) Schedule 3.14 of the Company Disclosure Letter Schedule sets forth a true and complete list, as of the date hereof, of each “all employee benefit plan” plans, programs, policies, practices, agreements and arrangements (within the meaning of section including, but not limited to, all plans described in Section 3(3) of the Employee Retirement Income Security Act of 1974 1974, as amended (“ERISA”)), “multiemployer plan” (within ) maintained or contributed to by the meaning Company for the benefit of ERISA section 3(37)) and all stock purchase, stock option, phantom stock or other equity-based plan, severance, employment, collective bargaining, 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 or required in the future as a result of the transactions contemplated by this Agreement or otherwise), whether formal or informal, written or oral, legally binding or not, under which any its current or former employeeofficers, director employees, directors or consultant of the Company or its Subsidiaries (or any of their dependents) has any present or future right to compensation or benefits or the Company or its Subsidiaries has had or has any present or future liability independent contractors, or with respect to which it is otherwise bound (collectively, the “Company Plans”). With respect to each Company Plan, the Company has made available to Parent a true and complete copy thereof and, to the extent applicable: (ior could have) any related trust agreement obligation or other funding instrumentliability (including, (ii) the most recent determination letter of the Internal Revenue Service (the “IRS”)but not limited to, if applicable, (iii) any summary plan description and other written communications (or a description of any oral communications) by the Company or its Subsidiaries to their employees concerning the extent of the benefits provided liabilities arising from affiliation under a Company Plan, and (iv) for the two most recent years (A) the Form 5500 and attached schedules, (B) audited financial statements, (C) actuarial valuation reports and (D) attorney’s response to an auditor’s request for information.
(b) No Company Plan is subject to Title IV of ERISA or Section 412 of the Code, no Company Plan is a multiemployer plan (within the meaning of Section 3(37) of ERISA), and neither the Company nor any member of its Controlled Group (defined as any organization which is a member of a controlled group of organizations within the meaning of Code Sections 414(b), (c), (m) or (o) of the Code, or Section 4001 of ERISA) (each, a “Benefit Plan” and collectively, the “Benefit Plans”). There has been no amendment or announcement (written or oral) by the Company relating to a change in participation or coverage under, any Benefit Plan that could reasonably be expected to materially increase the expense of maintaining such Benefit Plan above the level of expense incurred with respect thereto for the most recent fiscal year included in the financial statements provided pursuant to Section 3.7. Each Benefit Plan can be terminated by the Company at any time without liability or expense (other than for any benefits accrued thereunder at the time of such termination). None of the rights of the Company under any Benefit Plan will be impaired in any way by the consummation of the transactions contemplated by this Agreement.
(b) With respect to each Benefit Plan, the Company has made available to the Buyer (to the extent applicable to such Benefit Plan) true and complete copies of: (i) all documents embodying such Benefit Plan (including all amendments thereto) or, if such Benefit Plan is not in writing, a written description of such Benefit Plan; (ii) the last three annual reports (Form 5500 series and all schedules and financial statements attached thereto) filed with respect to such Benefit Plan; (iii) the most recent summary plan description, and all summaries of material modifications related thereto, distributed with respect to such Benefit Plan; (iv) all contracts and agreements (and any liability amendments thereto) relating to such Benefit Plan, including, without limitation, all trust agreements, investment management agreements, annuity contracts, insurance contracts, bonds, indemnification agreements and service provider agreements; (direct or contingentv) the most recent determination letter issued by the Internal Revenue Service (the “IRS”) with respect toto such Benefit Plan; (vii) all written communications to employees, and has never incurred or to any liability other Persons (director A) in which the provisions of such Benefit Plan, as set forth or contingentdescribed therein, differ materially from such provisions as set forth or described in the other information or materials furnished under this subsection (b), or (B) relating to the amendment, creation or termination of such Benefit Plan, or to an increase or decrease in benefits, acceleration of payments or vesting or any other event with respect toto such Benefit Plan that could result in liability to the Company; (viii) all correspondence to or from any governmental entity or agency relating to such Benefit Plan; and (ix) all coverage, any employee benefit nondiscrimination, top heavy and Code Section 415 tests performed with respect to such Benefit Plan for the three most recently completed plan subject to Title IV of ERISA. No Company Plan provides health or other welfare benefits to former employees of the Company or its Subsidiaries other than health continuation coverage pursuant to COBRAyears.
(c) With Except as set forth on Schedule 3.17 of the Disclosure Schedule, with respect to the Company Plans, except to the extent that the inaccuracy of any of the representations set forth in this paragraph (c), individually or in the aggregate, has not been and would not reasonably be expected to be material to the Company and its Subsidiaries, taken as a whole:
each Benefit Plan: (i) each Company such Benefit Plan is, and at all times since inception has been established been, maintained, operated, administered and administered funded in accordance with its terms and all Legal Requirements in compliance all material respects; (ii) the Company and each other person (including, without limitation, all fiduciaries) have, at all times and in all material respects, properly performed all of their duties and obligations under or with the applicable provisions of applicable Lawrespect to such Benefit Plan; (iii) all returns, including ERISA reports, notices, statements and the Code, and all contributions other disclosures relating to such Benefit Plan required to be made under the terms of filed with any Company governmental authority or distributed to any participant therein have been properly prepared and duly filed or distributed in a timely manner; (iv) all contributions, premiums and other payments due or required to be paid to (or with respect to) such Benefit Plan have been timely made;paid, or, if not yet due, have been accrued as a liability on the Balance Sheet; (v) no breach of fiduciary duty has occurred with respect to any Benefit Plan(vi) no “prohibited transaction” (within the meaning of either Section 4975(c) of the Code or Section 406 or 407 of ERISA) has occurred with respect to such Benefit Plan; and (vii) the Company has not incurred, and there exists no condition or set of circumstances in connection with which the Company or Buyer could incur, directly or indirectly, any material liability or expense (except for routine contributions and benefit payments) under ERISA, the Code or any other applicable Legal Requirement or pursuant to any indemnification or similar agreement, with respect to such Benefit Plan.
(iid) each Company Each Benefit Plan that is intended to be qualified under Section 401(a) of the Code has received a favorable determination, advisory or opinion letter, as applicable, from the IRS that it is so qualified and nothing has occurred that would reasonably be expected each trust and group annuity contract related thereto is exempt from taxation under Section 501(a) of the Code. Each such Benefit Plan (i) is the subject of an unrevoked favorable determination letter from the IRS with respect to cause the loss of such Benefit Plan's qualified status under the Code, as amended by that legislation commonly referred to as “GUST” and “EGTRRA” and all subsequent legislation, (ii) 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 Company Plan;
a letter from the IRS, or (iii) there is no Action (including any investigationa prototype plan or volume submitter plan entitled, audit under applicable IRS guidance, to rely on the favorable opinion or other administrative proceeding) advisory letter issued by the Department IRS to the sponsor of Laborsuch prototype or volume submitter plan. Nothing has occurred, or is reasonably expected by the Pension Company or any Seller to occur, that could adversely affect the qualification or exemption of any such Benefit Guaranty CorporationPlan or any trust or group annuity contract related thereto. No such Benefit Plan is a "top-heavy plan," as defined in Section 416 of the Code.
(e) The Company is not, and has never been, a member of (i) a controlled group of corporations, within the IRS meaning of Section 414(b) of the Code, (ii) a group of trades or businesses under common control, within the meaning of Section 414(c) of the Code, (iii) an affiliated service group, within the meaning of Section 414(m) of the Code, or (iv) any other group of Persons treated as a single employer under Section 414(o) of the Code.
(f) The Company does not sponsor, maintain or contribute to, and has never sponsored, maintained or contributed to (or been obligated to sponsor, maintain or contribute to), (a) a “multiemployer plan,” as defined in Section 3(37) or 4001(a)(3) of ERISA or 414(f) of the Code, (b) a multiple employer plan within the meaning of Section 4063 or 4064 of ERISA or Section 413(c) of the Code, (c) an employee benefit plan that is subject to Part 3 of Subtitle B of Title I of ERISA, Title IV of ERISA or Section 412 of the Code, or (d) a "multiple employer welfare arrangement," as defined in Section 3(40) of ERISA.
(g) Neither the Company nor any Benefit Plan provides or has any obligation to provide (or contribute toward the cost of) life insurance, medical benefits or any other Governmental Entity or by any plan participant or beneficiary pending, or to welfare benefits (within the Knowledge meaning of the Company, threatened, relating to the Company Plans, any fiduciaries thereof Section 3(1) of ERISA) with respect to their duties to the Company Plans any current or the assets of any of the trusts under any former officer, employee, director, agent or independent contractor of the Company Plans after his or her retirement or other termination of service for any reason, except to the extent required by Part 6 of Subtitle B of Title I of ERISA and Section 4980B(f) of the Code.
(h) There are no actions, suits or claims (other than routine claims for benefits) pending or, to the knowledge of the Company, threatened with respect to (or against the assets of) any Benefit Plan, nor are is there facts or circumstances that exist that could reasonably give rise to a basis for any such Actions;action, suit or claim. No Benefit Plan is currently under investigation, audit or review, directly or indirectly, by the IRS, the Department of Labor or any other government authority.
(ivi) neither Schedule 3.18 of the Company nor its Subsidiaries nor any Disclosure Schedule sets forth a complete and accurate list of their Affiliates has incurred any direct or indirect liability under ERISA or all "nonqualified deferred compensation plans" (within the Code in connection with the termination of, withdrawal from or failure to fund, any Company Plan or other retirement plan or arrangement, and no fact or event exists that would reasonably be expected to give rise to any such liability; and
(v) the Company and its Subsidiaries do not maintain any Company Plan that is a “group health plan” (as such term is defined in meaning of Section 5000(b)(1) 409A of the Code) that sponsored or maintained by the Company (or to which the Company is (or was) a party or in which any of their current or former officers, employees, agents, directors or independent contractors participated) at any time. Each such plan has not been operated and administered and operated in all respects in good faith compliance with the applicable requirements of Section 601 of ERISA and Section 4980B(b) 409A of the CodeCode and any guidance issued by the United States Treasury Department or the IRS thereunder, and to the Company and its Subsidiaries are not subject extent applicable to such plan. No such plan has been "materially modified" (within the meaning of IRS Notice 2005-1 or Proposed Treasury Regulation Section 1.409A-6(a)(4)) at any liabilitytime after October 3, including additional contributions, fines, penalties or loss of Tax deductions, as a result of such administration and operation; and2004.
(dj) None of the Company Plans provides for payment of a benefit, the increase of a benefit amount, the payment of a contingent benefit, the acceleration of a payment or the vesting of a benefit determined or occasioned, in whole or in part, by reason of Neither the execution of this Agreement or nor the consummation of the transactions contemplated hereby by this Agreement will (either alone i) result in any benefit or in conjunction with right becoming established or increased, or accelerate the time of payment or vesting, under any other event). None Benefit Plan, (ii) increase the amount of the Company Plans compensation due to any individual or forgive any indebtedness owed by any individual, or (iii) entitle any individual to severance pay, unemployment compensation, retention or transaction bonuses, or any other plan agreement or arrangement in effect immediately prior to the Closing could result separately or in the aggregate in connection with the transactions contemplated by this Agreement (either alone or in conjunction with any other event) in the payment of any “excess parachute payment” within the meaning of Section 280G of the Code.
(e) Each Company Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A(d)(1) of the Code has complied in form and operation with the requirements of Section 409A of the Code. No current or former employee, director or other service provider is entitled to any gross-up, make-whole or other additional payment from the Company Company, Seller or any of its Subsidiaries in respect of any Tax (including Federal, state, local or foreign income, excise or other Taxes (including Taxes imposed under Section 409A and 4999 of the Code)) or interest or penalty related theretoBenefit Plan.
Appears in 1 contract
Benefit Plans. (a) Section 3.11(a) of 6.12(a)(i)of the Company Disclosure Letter sets forth a true and complete listlists, as of the date hereof, of each “employee benefit plan” (within the meaning of section as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974 (“ERISA”)), “multiemployer plan” (within the meaning of ERISA section 3(37)) and all stock purchase, stock option, phantom stock or other equity-based plan, severance, employment, collective bargaining, change-in-control, fringe benefit, bonus, incentive, deferred compensation compensation, stock option (or other equity-based compensation), severance, retention, change in control, welfare (including post-retirement medical and all other employee life insurance), fringe benefit and compensation similar plans, agreements, programs, policies or other and 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), and whether formal or informal, written or oral, legally binding sponsored, maintained or not, under which contributed to or required to be maintained or contributed to by the Company or any current or former employee, director or consultant of the Company or its Subsidiaries (or any of their dependents) has any present or future right to compensation or benefits or the Company or its Subsidiaries has had or has any present or future liability Subsidiaries, or with respect to which it any Person who is otherwise bound currently, has been or, prior to the Effective Time, is expected to become, an employee of the Company or any of the Company Subsidiaries (collectively, “Company Employees”) is entitled to any benefit (the “Company Benefit Plans”), or with respect to which the Company or any of the Company Subsidiaries has any liability. Section 6.12(a)(ii) of the Company Disclosure Letter sets forth, as of the date hereof, a complete and accurate list of each material employment, consulting, severance, change in control, retention, termination or other material bilateral contract between any Company Employee, on the one hand, and the Company or any Company Subsidiary, on the other hand, in each case, that is not a Company Benefit Plan (collectively, the “Company PlansBenefit Agreements”). With respect to each Company PlanBenefit Plan and Company Benefit Agreement, the Company has made available provided to Parent a true Verizon complete and complete copy thereof andaccurate copies of (A) such Company Benefit Plan or Company Benefit Agreement, to the extent applicable: including any amendment thereto, (iB) any related trust agreement each trust, insurance, annuity or other funding instrumentcontract related thereto, (iiC) the most recent determination letter of the Internal Revenue Service (the “IRS”), if applicable, (iii) any summary plan description financial statements and actuarial or other written communications (or a description of any oral communications) by the Company or its Subsidiaries to their employees concerning the extent of the benefits provided under a Company Plan, valuation reports prepared with respect thereto and (ivD) for the two most recent years (A) the annual reports on Form 5500 and attached schedules, required to be filed with the IRS with respect thereto (B) audited financial statements, (C) actuarial valuation reports and (D) attorney’s response to an auditor’s request for informationif any).
(b) No Company Plan is subject to material liability under Title IV (including Sections 4069 and 4212(c) of ERISA ERISA) or Section 302 of ERISA, or Section 412 of the Code, no Company Plan is a multiemployer plan (within the meaning of Section 3(37) of ERISA), and neither the Company nor any member of its Controlled Group (defined as any organization which is a member of a controlled group of organizations within the meaning of Code Sections 414(b), (c), (m) or (o)) has any liability (direct or contingent) with respect to, and has never incurred any liability (director or contingent) with respect to, any employee benefit plan subject to Title IV of ERISA. No Company Plan provides health or other welfare benefits to former employees of the Company or its Subsidiaries other than health continuation coverage pursuant to COBRA.
(c) With respect to the Company Plans, except to the extent that the inaccuracy of any of the representations set forth in this paragraph (c), individually or in the aggregate, has not been and would not reasonably be expected to be material to the Company and its Subsidiaries, taken as a whole:
(i) each Company Plan has been established and administered in accordance with its terms and in compliance with the applicable provisions of applicable Law, including ERISA and the Code, and all contributions required to be made under the terms of any Company Plan have been timely made;
(ii) each Company Plan intended to be qualified under Section 401(a) of the Code has received a favorable determination, advisory or opinion letter, as applicable, from the IRS that it is so qualified and nothing has occurred that would reasonably be expected to cause the loss of such qualified status of such Company Plan;
(iii) there is no Action (including any investigation, audit or other administrative proceeding) incurred 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 the Company, threatened, relating to the Company Plans, any fiduciaries thereof with respect to their duties to the Company Plans or the assets of any of the trusts under any of the Company Plans (other than routine claims for benefits) nor are there facts Subsidiaries or circumstances that exist that could reasonably give rise to any such Actions;
(iv) neither the Company nor its Subsidiaries nor ERISA Affiliate of any of their Affiliates has incurred any direct or indirect liability under ERISA or the Code in connection with the termination of, withdrawal from or failure to fund, any Company Plan or other retirement plan or arrangementthem, and no fact or event condition exists that would reasonably be expected to give rise to result in the Company, any of the Company Subsidiaries or any ERISA Affiliate of any of them incurring any such liability; and
(v) , other than liability for premiums due to the PBGC. The present value of accrued benefits under each Company and its Subsidiaries do not maintain any Company Benefit Plan that is subject to Title IV of ERISA, determined based upon the actuarial assumptions used for funding purposes in the most recent actuarial report prepared by such plan’s actuary with respect to such plan, did not exceed, as of its latest valuation date, the then current value of the assets of such plan allocable to such accrued benefits.
(c) (i) No Company Benefit Plan is a “group health multiemployer plan,” (as such term is defined in Section 5000(b)(13(37) of ERISA and (ii) none of the Code) that Company, the Company Subsidiaries or any ERISA Affiliate of any of them has made or suffered a “complete withdrawal” or a “partial withdrawal,” as such terms are respectively defined in Sections 4203 and 4205 of ERISA, the liability for which has not been administered and operated satisfied in all respects in compliance with the applicable requirements of Section 601 of ERISA and Section 4980B(b) of the Code, and the Company and its Subsidiaries are not subject to any liability, including additional contributions, fines, penalties or loss of Tax deductions, as a result of such administration and operation; and
(d) None of the Company Plans provides for payment of a benefit, the increase of a benefit amount, the payment of a contingent benefit, the acceleration of a payment or the 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 hereby (either alone or in conjunction with any other event). None of the Company Plans or any other plan agreement or arrangement in effect immediately prior to the Closing could result separately or in the aggregate in connection with the transactions contemplated by this Agreement (either alone or in conjunction with any other event) in the payment of any “excess parachute payment” within the meaning of Section 280G of the Codefull.
(e) Each Company Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A(d)(1) of the Code has complied in form and operation with the requirements of Section 409A of the Code. No current or former employee, director or other service provider is entitled to any gross-up, make-whole or other additional payment from the Company or any of its Subsidiaries in respect of any Tax (including Federal, state, local or foreign income, excise or other Taxes (including Taxes imposed under Section 409A and 4999 of the Code)) or interest or penalty related thereto.
Appears in 1 contract
Benefit Plans. (a) Section 3.11(a) of the Company Disclosure Letter Schedule 4.17 hereto sets forth a true and complete list, as of the date hereof, of each “all material employee benefit plan” plans, agreements and arrangements of any type (within the meaning of section including, but not limited to, plans described in Section 3(3) of the Employee Retirement Income Security Act of 1974 1974, as amended (“"ERISA”)), “multiemployer plan” (within the meaning of ERISA section 3(37")) and all stock purchasemaintained by the Company, stock option, phantom stock RMI or other equity-based plan, severance, employment, collective bargaining, change-in-control, fringe benefit, bonus, incentive, deferred compensation and all other employee any Subsidiary for the benefit and compensation 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 employees of the transactions contemplated by this Agreement or otherwise)Company, whether formal or informal, written or oral, legally binding or not, under which any current or former employee, director or consultant of the Company or its Subsidiaries (RMI or any of their dependents) has any present or future right to compensation or benefits or the Company or its Subsidiaries has had or has any present or future liability Subsidiary, or with respect to which it is otherwise bound the Company, RMI or any Subsidiary has a material liability (collectivelyincluding, the “Company Plans”). With respect to each Company Planbut not limited to, the Company has made available to Parent a true and complete copy thereof and, to the extent applicable: (i) any related trust agreement or other funding instrument, (ii) the most recent determination letter of the Internal Revenue Service (the “IRS”), if applicable, (iii) any summary plan description and other written communications (or a description of any oral communications) by the Company or its Subsidiaries to their employees concerning the extent of the benefits provided liabilities arising from affiliation under a Company Plan, and (iv) for the two most recent years (A) the Form 5500 and attached schedules, (B) audited financial statements, (C) actuarial valuation reports and (D) attorney’s response to an auditor’s request for information.
(b) No Company Plan is subject to Title IV of ERISA or Section 412 of the Code, no Company Plan is a multiemployer plan (within the meaning of Section 3(37) of ERISA), and neither the Company nor any member of its Controlled Group (defined as any organization which is a member of a controlled group of organizations within the meaning of Code Sections 414(b), (c), (m) or (o) of the Internal Revenue Code of 1986, as amended (the "Code") or Section 4001 of ERISA) (the "Benefit Plans").
(b) With respect to each Benefit Plan, the Company has made available to Buyer true and complete copies of: (i) any and all plan texts and agreements; (ii) any and all summary plan descriptions and material modifications thereto; (iii) the two most recent annual reports, if applicable; (iv) the most recent annual and periodic accounting of plan assets, if applicable; and (v) the most recent determination letter received from the Internal Revenue Service (the "Service"), if applicable.
(c) Except as set forth on Schedule 4.17, with respect to each Benefit Plan: (i) such plan has been administered and enforced in accordance with its terms and all applicable laws in all material respects; (ii) no breach of fiduciary duty has occurred with respect to which the Company, RMI, any Subsidiary, or any Benefit Plan may be liable or otherwise damaged in any material respect; (iii) no material disputes are pending or threatened; and (iv) no "prohibited transaction" (within the meaning of either Section 4975(c) of the Code or Section 406 of ERISA) has any liability (direct or contingent) occurred with respect toto which the Company, and has never incurred any liability (director or contingent) with respect toRMI, any employee benefit plan Subsidiary, or any Benefit Plan may be liable or otherwise damaged in any material respect.
(d) Except as set forth on Schedule 4.17, no Benefit Plan is subject to Title IV of ERISA. No Company Plan provides health or other welfare benefits to former employees of the Company or its Subsidiaries other than health continuation coverage pursuant to COBRA.
(c) With respect to the Company Plans, except to the extent that the inaccuracy of any of the representations set forth in this paragraph (c), individually or in the aggregate, has not been and would not reasonably be expected to be material to the Company and its Subsidiaries, taken as a whole:
(i) each Company Plan has been established and administered in accordance with its terms and in compliance with the applicable provisions of applicable Law, including ERISA and the Code, and all contributions required to be made under the terms of any Company Plan have been timely made;
(ii) each Company Plan intended to be qualified under Section 401(a) of the Code has received a favorable determination, advisory or opinion letter, as applicable, from the IRS that it is so qualified and nothing has occurred that would reasonably be expected to cause the loss of such qualified status of such Company Plan;
(iii) there is no Action (including any investigation, audit or other administrative proceeding) 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 the Company, threatened, relating to the Company Plans, any fiduciaries thereof with respect to their duties to the Company Plans or the assets of any of the trusts under any of the 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;
(iv) neither the Company nor its Subsidiaries nor any of their Affiliates has incurred any direct or indirect liability under ERISA or the Code in connection with the termination of, withdrawal from or failure to fund, any Company Plan or other retirement plan or arrangement, and no fact or event exists that would reasonably be expected to give rise to any such liability; and
(v) the Company and its Subsidiaries do not maintain any Company Plan that is a “group health plan” (as such term is defined in Section 5000(b)(1) of the Code) that has not been administered and operated in all respects in compliance with the applicable requirements of Section 601 of ERISA and Section 4980B(b) of the Code, and the Company and its Subsidiaries are not subject to any liability, including additional contributions, fines, penalties or loss of Tax deductions, as a result of such administration and operation; and
(d) None of the Company Plans provides for payment of a benefit, the increase of a benefit amount, the payment of a contingent benefit, the acceleration of a payment or the 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 hereby (either alone or in conjunction with any other event). None of the Company Plans or any other plan agreement or arrangement in effect immediately prior to the Closing could result separately or in the aggregate in connection with the transactions contemplated by this Agreement (either alone or in conjunction with any other event) in the payment of any “excess parachute payment” within the meaning of Section 280G of the Code.
(e) Each Company Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A(d)(1) of the Code has complied in form and operation with the requirements of Section 409A of the Code. No current or former employee, director or other service provider is entitled to any gross-up, make-whole or other additional payment from the Company or any of its Subsidiaries in respect of any Tax (including Federal, state, local or foreign income, excise or other Taxes (including Taxes imposed under Section 409A and 4999 of the Code)) or interest or penalty related thereto.
Appears in 1 contract
Benefit Plans. (a) Schedule 2.13(a) sets forth a complete and accurate list of each plan, program, policy, practice, contract, agreement, or other arrangement providing for retirement, fringe benefit, vacation, cafeteria benefit, health or welfare benefit, dependent care, stock, option, bonus, or other incentive plan, supplemental retirement, deferred compensation, severance, separation, employment, compensation or other benefits which is, maintained, contributed to, or required to be contributed to by the Company or any of its Subsidiaries (whether written or unwritten, insured or self-insured, or for which the Company or any of its Subsidiaries has or may have any Liability or obligation, each, a “Company Employee Plan” or “Plan”) and each Employee Agreement. Notwithstanding any provision of this Agreement to the contrary, a Company Employee Plan or Plan shall not include any plan, program, practice, contract or agreement sponsored or maintained by a professional employer organization (each, a “PEO Plan”), and which is not sponsored or maintained by the Company, with respect to which employees of the Company participate; provided, however, that only that portion of a PEO Plan that is sponsored or maintained by the Company, and with respect to which employees of the Company participate, shall be considered a Company Employee Plan or Plan.
(b) The Company has delivered to Purchaser complete and accurate copies of (i) each written Company Employee Plan and Employee Agreement including all amendments thereto, (ii) the most recent annual report on Form 5500 required to have been filed with the IRS, and with respect to which the filing deadline, after giving effect to any applicable extension has not passed, for each Company Employee Plan that is not a PEO Plan; (iii) the most recent determination letter, if any, from the IRS for any Company Employee Plan that is intended to qualify under Section 3.11(a401(a) of the Code; (iv) the summary plan description for each Company Disclosure Letter sets forth Employee Plan, other than a true and complete listPEO Plan, as with respect to which Section 102 of ERISA applies, or a written description of the date hereofterms of any Company Employee Plan, other than a PEO Plan, that is not in writing or not subject to Section 102 of ERISA; (v) any related trust agreements, insurance contracts, insurance policies or other documents of any funding arrangements, to the extent applicable, for each Company Employee Plan that is not a PEO Plan; (vi) any written notices to or from the IRS or U.S. Department of Labor relating to any material compliance issues in respect of any such Company Employee Plan.
(c) Except as set forth in Section 2.13(b), none of the Company Employee Plans is an “employee welfare benefit plan” (or “employee pension benefit plan” within the meaning of section 3(3) Section 3 of the Employee Retirement Income Security Act of 1974 1974, as amended (“ERISA”)), “multiemployer plan” .
(within d) No persons or entities are or have ever been under common control with the meaning of ERISA section 3(37)) and all stock purchase, stock option, phantom stock Company or other equity-based plan, severance, employment, collective bargaining, 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 or required in the future as a result of the transactions contemplated by this Agreement or otherwise), whether formal or informal, written or oral, legally binding or not, under which any current or former employee, director or consultant Subsidiary of the Company or its Subsidiaries (or any of their dependents) has any present or future right to compensation or benefits or the Company or its Subsidiaries has had or has any present or future liability or with respect to which it is otherwise bound (collectively, the “Company Plans”). With respect to each Company Plan, the Company has made available to Parent a true and complete copy thereof and, to the extent applicable: (i) any related trust agreement or other funding instrument, (ii) the most recent determination letter of the Internal Revenue Service (the “IRS”), if applicable, (iii) any summary plan description and other written communications (or a description of any oral communications) by the Company or its Subsidiaries to their employees concerning the extent of the benefits provided under a Company Plan, and (iv) for the two most recent years (A) the Form 5500 and attached schedules, (B) audited financial statements, (C) actuarial valuation reports and (D) attorney’s response to an auditor’s request for information.
(b) No Company Plan is subject to Title IV of ERISA or Section 412 of the Code, no Company Plan is a multiemployer plan (within the meaning of Section 3(37) of ERISA), and neither the Company nor any member of its Controlled Group (defined as any organization which is a member of a controlled group of organizations within the meaning of Code Sections 414(b), (c), (m) or (o) of the Code, and the regulations issued thereunder (an “ERISA Affiliate”).
(e) has None of the Company Employee Plans or Employee Agreements promises or provides retiree medical or other retiree welfare benefits to any liability person, other than benefits required under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (direct “COBRA”) or contingent) with respect toany similar state, local or foreign law. The Company does not and has never incurred any liability (director or contingent) with respect maintained, established, sponsored, participated in, contributed to, or required to contribute to any employee benefit pension plan which is subject to Title IV of ERISA. No Company Plan provides health or other welfare benefits to former employees Section 412 of the Company or its Subsidiaries other than health continuation coverage pursuant to COBRACode.
(cf) With respect to the Each Company Plans, except to the extent that the inaccuracy of any of the representations set forth in this paragraph (c), individually or in the aggregate, has not been and would not reasonably be expected to be material to the Company and its Subsidiaries, taken as a whole:
(i) each Company Employee Plan has been established and administered in accordance with its terms and in material compliance with the requirements prescribed by any and all applicable provisions of applicable Lawstatutes, including rules and regulations (including, without limitation, ERISA and the Code, ) and the Company has performed all contributions material obligations required to be made performed by it under, is not in default under the terms or violation of and has no knowledge of any Company Plan have been timely made;material default or violation by any other party to, any of the Plans.
(iig) each Any Company Employee Plan intended to be qualified under Section 401(a) of the Code (i) has received either applied for, prior to the expiration of the requisite period under currently applicable Treasury Regulations or IRS pronouncements, or obtained a favorable determination, notification, advisory or and/or opinion letter, as applicable, as to its qualified status from the IRS that it is so qualified and nothing has occurred that would reasonably be expected to cause the loss of such qualified status of such Company Plan;
(iii) there is no Action (including any investigation, audit or other administrative proceeding) by the Department of Labor, the Pension Benefit Guaranty Corporation, the IRS or any other Governmental Entity or by any plan participant or beneficiary pendingIRS, or still has a remaining period of time under applicable Treasury Regulations or IRS pronouncements in which to the Knowledge of the Company, threatened, relating apply for such letter and to the Company Plans, make any fiduciaries thereof with respect amendments necessary to their duties to the Company Plans or the assets of any of the trusts under any of the 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;
(iv) neither the Company nor its Subsidiaries nor any of their Affiliates has incurred any direct or indirect liability under ERISA or the Code in connection with the termination of, withdrawal from or failure to fund, any Company Plan or other retirement plan or arrangementobtain a favorable determination, and no fact (ii) incorporates or event exists that would reasonably be expected has been amended to give rise incorporate all provisions required to any such liability; and
(v) the comply with currently applicable legislation. For each Company and its Subsidiaries do not maintain any Company Employee Plan that is a “group health plan” (as such term is defined in intended to be qualified under Section 5000(b)(1401(a) of the Code) Code there has been no event, condition or circumstance that has not been administered and operated in all respects in compliance with the applicable requirements of Section 601 of ERISA and Section 4980B(b) of the Code, and the Company and its Subsidiaries are not subject adversely affected or is likely to any liability, including additional contributions, fines, penalties or loss of Tax deductions, as a result of adversely affect such administration and operation; andqualified status.
(dh) None of the Company Plans provides for payment of a benefit, the increase of a benefit amount, the payment of a contingent benefit, the acceleration of a payment or the vesting of a benefit determined or occasioned, in whole or in part, by reason of the The execution of this Agreement or the and consummation of the transactions contemplated hereby will not (either alone or upon the occurrence of any additional or subsequent events) constitute an event under any Company Employee Plan or Employee Agreement that will result in conjunction any payment (whether of severance pay or otherwise), acceleration, forgiveness of indebtedness, vesting, distribution, increase in benefit or obligation to fund benefits with respect to any other event). None employee or consultant of the Company Plans or any other plan agreement or arrangement in effect immediately prior to the Closing could result separately or in the aggregate in connection with the transactions contemplated by this Agreement (either alone or in conjunction with any other event) in the payment of any “excess parachute payment” within the meaning of Section 280G of the CodeCompany.
(ei) Each Company Plan that is a “nonqualified deferred compensation plan” within the meaning of subject to Section 409A(d)(1) 409A of the Code has complied in form and operation with the documentary and operational requirements of Section 409A of the Code. No current The Company has no obligation to reimburse any employee for taxes under Section 409A of the Code.
(j) Neither the Company, nor to the Knowledge of the Company, any of its directors, officers, employees or former employeeagents has, director or other service provider is entitled with respect to any grossCompany Employee Plan, engaged in or been a party to any non-upexempt “prohibited transaction,” as such term is defined in Section 4975 of the Code or Section 406 of ERISA, make-whole which could reasonably be expected to result in the imposition of a material penalty assessed pursuant to Section 502(i) of ERISA or other additional payment from a material tax imposed by Section 4975 of the Code, in each case applicable to the Company or any of its Subsidiaries in Company Employee Plan or for which the Company has any indemnification obligation.
(k) All required Company and Company employee contributions, premiums and other payments required to be made with respect of to any Tax (including FederalCompany Employee Plan have been timely made, state, local accrued or foreign income, excise or other Taxes (including Taxes imposed under Section 409A and 4999 of the Code)) or interest or penalty related theretoreserved for.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Upland Software, Inc.)
Benefit Plans. (a) Section 3.11(a3.15(a) of the Company Disclosure Letter Schedule sets forth a true and complete list, as list of the date hereoffollowing that are or within the previous three (3) years have been sponsored, maintained or contributed to , or required to be contributed to by the Company for the benefit of each any current or former employees, directors, officers, shareholders, members, managers, consultants, or independent contractors of the Business, or under which the Company or any of its ERISA Affiliates has or may have any liability, contingent or otherwise: (i) all “employee benefit plan” (within the meaning of section plans”, as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974 ERISA, (“ERISA”))ii) all other severance pay, “multiemployer plan” (within the meaning of ERISA section 3(37)) and all stock purchase, stock option, phantom stock or other equity-based plan, severance, employment, collective bargaining, change-in-control, fringe benefitsalary continuation, bonus, incentive, stock option, retirement, vacation, paid time off, pension, profit sharing or deferred compensation plans, Contracts, programs, funds, policies or arrangements of any kind, and (iii) all other employee benefit and compensation plans, agreementsContracts, programs, policies funds, or other arrangementsarrangements (whether written or oral, qualified or nonqualified, funded or unfunded, foreign or domestic, currently effective or terminated) and any trust, escrow, or similar Contract related thereto, whether or not subject funded (all of clauses (i) through (iii) above being hereinafter individually or collectively referred to ERISA (including as “Company Benefit Plan” or “Company Benefit Plans”, respectively). The Company does not have any funding mechanism therefor now in effect or required in the future as a result of the transactions contemplated by this Agreement or otherwise), whether formal or informal, written or oral, legally binding or not, under which any current or former employee, director or consultant of the Company or its Subsidiaries (or any of their dependents) has any present or future right to compensation or benefits or the Company or its Subsidiaries has had or has any present or future liability or with respect to which it is otherwise bound (collectivelyany plan, arrangement or practice of the “Company Plans”). With respect to each Company Plan, type described in the preceding sentence other than the Company has Benefit Plans.
(b) Copies of the following materials have been made available to Parent a true and complete copy thereof and, to the extent applicablePurchaser: (i) all current plan documents and any related trust agreement or other funding instrumentmaterial prior plan documents for each Company Benefit Plan together with all amendments or, in the case of an unwritten Company Benefit Plan, a written description thereof, (ii) the most recent determination determination, opinion or advisory letter from the IRS with respect to any of the Internal Revenue Service (Company Benefit Plans intended to be qualified for purposes of Sections 401(a) and 501(a) of the “IRS”), if applicableCode, (iii) any all current summary plan description descriptions and summaries of material modifications, as applicable, and annual reports, in each case, with respect to each Company Benefit Plan, (iv) all current trust agreements, insurance Contracts or other written communications funding arrangements relating to the funding of benefits under any Company Benefit Plan, (v) copies of material notices, letters or a description other correspondence from the IRS, Department of any oral communications) by Labor, Department of Health and Human Services, Pension Benefit Guaranty Corporation or other Governmental Entity relating to the Company or its Subsidiaries to their employees concerning the extent of the benefits provided under a Company Benefit Plan, and (ivvi) for the two most recent years (A) the Form 5500 and attached schedulesany other documents, (B) audited financial statements, (C) actuarial valuation reports and (D) attorney’s response forms or other instruments relating to an auditor’s request for informationany Company Benefit Plan reasonably requested by Purchaser in writing.
(bc) No Each Company Benefit Plan is subject to Title IV has been maintained, operated, and administered in compliance in all material respects with its terms and any related documents or agreements and in compliance in all material respects with all Applicable Laws. There have been no prohibited transactions or breaches of ERISA or Section 412 any of the Code, no Company Plan is a multiemployer plan duties imposed on “fiduciaries” (within the meaning of Section 3(373(21) of ERISA), and neither the Company nor any member of its Controlled Group (defined as any organization which is a member of a controlled group of organizations within the meaning of Code Sections 414(b), (c), (m) or (o)) has any liability (direct or contingent) by ERISA with respect to, and has never incurred any liability (director or contingent) with respect to, any employee benefit plan subject to Title IV of ERISA. No Company Plan provides health or other welfare benefits to former employees of the Company or its Subsidiaries other than health continuation coverage pursuant to COBRA.
(c) With respect to the Company Plans, except to Benefit Plans that could result in any liability or excise tax under ERISA or the extent that Code being imposed on the inaccuracy of any of the representations set forth in this paragraph (c), individually or in the aggregate, has not been and would not reasonably be expected to be material to the Company and its Subsidiaries, taken as a whole:Company.
(id) each Each Company Plan has been established and administered in accordance with its terms and in compliance with the applicable provisions of applicable Law, including ERISA and the Code, and all contributions required to be made under the terms of any Company Plan have been timely made;
(ii) each Company Benefit Plan intended to be qualified under Section 401(a) of the Code has received a favorable determination, advisory or opinion letter, as applicable, from the IRS that it is so qualified and is currently subject to an effective determination, opinion or advisory letter of the IRS to be so qualified, and each trust created thereunder is so 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 such letter that would could reasonably be expected to cause give the loss IRS grounds to revoke such determination.
(e) Neither the Company nor any of such its ERISA Affiliates currently has and at no time in the past has had an obligation (contingent or otherwise) to contribute to a “multiemployer plan” as defined in Section 3(37) of ERISA or Section 414(f) of the Code, a “multiple employer plan” within the meaning of Section 210(a) of ERISA or Section 413(c) of the Code, any plan that is subject to Title IV of ERISA or any “multiple employer welfare arrangement” (as defined in Section 3(40) of ERISA).
(f) Except as set forth in Section 3.15(f) of the Disclosure Schedule, no Seller Company Benefit Plan constitutes a “non-qualified status deferred compensation plan” within the meaning of Section 409A of the Code; and such Company Plan;Benefit Plan which is subject to Section 409A of the Code has been operated in compliance with Section 409A of the Code.
(iiig) there No Company Benefit Plan is or at any time was funded through a “welfare benefit fund” as defined in Section 419(e) of the Code, and no benefits under any Company Benefit Plan are or at any time have been provided through a voluntary employees’ beneficiary association (within the meaning of 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 Action (including any investigationpending or, audit or other administrative proceeding) 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 the CompanySelling Shareholders, threatened, relating to the Company Plans, any fiduciaries thereof threatened Proceeding with respect to their duties to the any Company Plans or the assets of any of the trusts under any of the Company Plans Benefit Plan (other than routine claims for benefits) nor are is there facts any basis for one.
(i) All (i) insurance premiums required to be paid with respect to, (ii) benefits, expenses, and other amounts due and payable under, and (iii) contributions, transfers, or circumstances that exist that could reasonably give rise payments required to be made to, any Company Benefit Plan prior to the Closing Date have been paid, made or properly accrued at or before the Closing Date.
(j) With respect to any insurance policy providing funding for benefits under any Company Benefit Plan, (A) there is no liability of the Company, in the nature of a retroactive rate adjustment, loss sharing arrangement, or other actual or contingent liability, nor would there be any such Actions;liability if such insurance policy was terminated on the date hereof, and (B) to the Knowledge of the Selling Shareholders, no insurance company issuing any such policy is in receivership, conservatorship, liquidation or subject to a similar Proceeding and no such Proceedings with respect to any insurer are imminent.
(ivk) neither No Company Benefit Plan provides benefits, including death or medical benefits, beyond termination of service or retirement other than (i) coverage mandated by Law, (ii) death or retirement benefits under any qualified Company Benefit Plan, or (iii) deferred compensation benefits reflected on the books of the Company.
(l) Except as set forth in Section 3.15(l) of the Disclosure Schedule The execution and performance of this Agreement will not (i) constitute a triggering event under any Company Benefit Plan that will result in any payment (whether of severance pay or otherwise) becoming due from the Company to any officer, employee, or former employee of the Company (or dependents of such employee or former employee of the Company), or (ii) accelerate the time of payment or vesting, or increase the amount of compensation due to any employee, former employee, officer or director of the Company.
(m) The Company has not agreed or committed to institute any plan, program, arrangement or agreement for the benefit of Company Employees other than the Company Benefit Plans, or to make any amendments to any of the Company Benefit Plans other than any amendments required by Applicable Law.
(n) The Company has reserved all rights necessary to amend or terminate each of the Company Benefit Plans without the Consent of any other Person.
(o) Except as specifically provided under the exceptions set forth in Section 3.15(k) with respect to Company Employees who have incurred a termination of service or retirement, no Company Benefit Plan provides, or has ever provided, benefits to any individual who, at the time benefits are so provided, (i) is or was not a Company Employee (a “Non-Employee”), or (ii) is or was a dependent or other beneficiary of any such Non-Employee.
(p) No Company Benefit Plan is funded with or allows for payments, investments or distributions in any employer security of any Seller the Company, including, but not limited to, employer securities as defined in Section 407(d)(1) of ERISA, or employer real property as defined in Section 407(d)(2) or ERISA.
(q) Neither the Company nor its Subsidiaries nor any ERISA Affiliate contributes to or has any obligation (contingent or otherwise) to contribute to, or has any liability (contingent or otherwise, including withdrawal liability as defined in Section 4201 of their Affiliates has incurred any direct ERISA) under or indirect liability under ERISA or the Code in connection with the termination of, withdrawal from or failure to fund, any Company Plan or other retirement plan or arrangement, and no fact or event exists that would reasonably be expected to give rise respect to any such liability; and
(vi) the Company and its Subsidiaries do not maintain any Company Benefit Plan that is a “group health defined benefit plan” (as such term is defined in Section 5000(b)(13(35) of the CodeERISA or (ii) that has not been administered and operated in all respects in compliance with the applicable requirements any Multiemployer Plan.
(r) No asset of Section 601 of ERISA and Section 4980B(b) of the Code, and any the Company and its Subsidiaries are not is subject to any liability, including additional contributions, fines, penalties Lien under ERISA or loss of Tax deductions, as a result of such administration and operation; andthe Code.
(ds) None of the The Company Plans provides for payment of is not a benefitparty to any agreements or arrangements that would (A) result, the increase of a benefit amount, the payment of a contingent benefit, the acceleration of a payment or the 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 hereby (either alone or in conjunction with any other event). None of the Company Plans or any other plan agreement or arrangement in effect immediately prior to the Closing could result separately individually or in the aggregate in connection with the transactions contemplated by this Agreement (either alone or in conjunction with any other event) aggregate, in the payment of any “excess parachute payment” within the meaning of Section 280G of the Code.
, including as a result of any event connected with the Acquisition or any other transaction contemplated herein, or (eB) Each Company Plan that is require a “nonqualified deferred compensation plangross-up” or other payment to any “disqualified individual” within the meaning of Section 409A(d)(1280G(c) of the Code has complied in form and operation with the requirements of Section 409A of the Code. No current or former employee, director or other service provider is entitled to any gross-up, make-whole or other additional payment from the Company or any of its Subsidiaries in respect of any Tax (including Federal, state, local or foreign income, excise or other Taxes (including Taxes imposed under Section 409A and 4999 of the Code)) or interest or penalty related thereto.
Appears in 1 contract
Samples: Stock Purchase Agreement (Zix Corp)
Benefit Plans. (a) Section 3.11(a) of the Company Disclosure Letter sets forth a true and complete list, as of the date hereof, of each “employee benefit plan” (within the meaning of section 3(3) of the Employee Retirement Income Security Act of 1974 (“ERISA”)), “multiemployer plan” (within the meaning of ERISA section 3(37)) and all stock purchase, stock option, phantom stock or other equity-based plan, severance, employment, collective bargaining, 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 or required in the future as a result of the transactions contemplated by this Agreement or otherwise), whether formal or informal, written or oral, legally binding or not, under which any current or former employee, director or consultant of the Company or its Subsidiaries (or any of their dependents) has any present or future right to compensation or benefits or the Company or its Subsidiaries has had or has any present or future liability or with respect to which it is otherwise bound (collectively, the “Company Plans”). With respect to each Company material Steel Benefit Plan, the Company Steel has made available to Parent a true Copper complete and complete copy thereof andaccurate copies of the following documents, to the extent applicable: ; (iA) such Steel Benefit Plan document (or, with respect to any related trust agreement such arrangement that is not in writing, a written description of the material terms thereof), including any amendment thereto, and to the extent applicable, the most recent summary plan description thereof, (B) each trust, insurance, annuity or other funding instrumentarrangement, and all amendments related thereto, (iiC) the two (2) most recent determination letter of audited financial statements and actuarial or other valuation reports prepared with respect thereto, (D) the two (2) most recent Forms 5500 and all related schedules required to be filed with the Internal Revenue Service (the “IRS”), if applicable) with respect thereto, (iiiE) any summary plan description and other written communications (the most recently received IRS determination letter or a description of any oral communications) by the Company or its Subsidiaries to their employees concerning the extent of the benefits provided under a Company Plan, opinion letter and (ivF) for all material or non-routine correspondence with a Governmental Entity over the two most recent years last three (A3) the Form 5500 and attached schedules, (B) audited financial statements, (C) actuarial valuation reports and (D) attorney’s response to an auditor’s request for informationyears.
(b) No Company Plan is subject to Title IV of ERISA or Section 412 of the Code, no Company Plan is a multiemployer plan (within the meaning of Section 3(37) of ERISA), and neither the Company nor any member of its Controlled Group (defined as any organization which is a member of a controlled group of organizations within the meaning of Code Sections 414(b), (c), (m) or (o)) has any liability (direct or contingent) with respect to, and has never incurred any liability (director or contingent) with respect to, any employee benefit plan subject to Title IV of ERISA. No Company Plan provides health or other welfare benefits to former employees of the Company or its Subsidiaries other than health continuation coverage pursuant to COBRA.
(c) With respect to the Company Plans, except to the extent that the inaccuracy of any of the representations set forth in this paragraph (c)Except as, individually or in the aggregate, has not been and would not reasonably be expected to be material to the Company and its Subsidiarieshave a Material Adverse Effect on Steel, taken as a whole:
(iA) each Company Plan of the Steel Benefit Plans has been established established, operated and administered in accordance compliance with its terms and in compliance accordance with the applicable provisions of applicable LawApplicable Laws, including ERISA ERISA, the Code and in each case the Coderegulations thereunder; (B) no Steel Benefit Plan provides welfare benefits, and including death or medical benefits (whether or not insured), with respect to current or former employees or directors of Steel 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 required contributions required or other amounts payable by Steel or its Subsidiaries as of the Closing Effective Time pursuant to be made under the terms each Steel Benefit Plan in respect of any Company Plan current or prior plan years have been timely made;
paid or, to the extent not yet due, have been accrued in accordance with GAAP; (iiD) each Company Plan intended neither Steel nor any of its Subsidiaries has engaged in a breach of fiduciary duty (as determined under ERISA) or a non-exempt prohibited transaction in connection with which Steel or its Subsidiaries could be subject to be qualified under either a civil penalty assessed pursuant to Section 401(a) 409 or 502 of ERISA or a Tax imposed pursuant to Section 4975 or 4976 of the Code has received a favorable determination, advisory or opinion letter, as applicable, from the IRS that it is so qualified Code; and nothing has occurred that would reasonably be expected to cause the loss of such qualified status of such Company Plan;
(iiiE) there is are no Action (including any investigation, audit or other administrative proceeding) 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 the CompanySteel, threatenedthreatened or anticipated claims, relating to the Company PlansActions, any fiduciaries thereof with respect to their duties to the Company Plans investigations or the assets of any of the trusts under any of the Company Plans audits (other than routine claims for benefits) nor are there facts by, on behalf of or circumstances that exist that could reasonably give rise against any of the Steel Benefit Plans, any trusts related thereto, the applicable plan sponsor or administrator, or against any fiduciary of any Steel Benefit Plan with respect to any such Actions;the operation thereof.
(ivc) neither Section 4.10(c) of the Company nor Steel Disclosure Letter sets forth each Multiemployer Plan or Multiple Employer Plan to which Steel, any of its Subsidiaries nor or any of their respective ERISA Affiliates contributes or is obligated to contribute, or within the six years preceding the date of this Agreement, contributed, or was obligated to contribute or under or with respect to which Steel otherwise has any current or contingent liability or obligation and separately identifies which Multiemployer Plans are in “endangered,” “critical,” or “critical and declining” status (within the meaning of Section 432 of the Code or Section 305 of ERISA). Except as set forth on Section 4.10(c) of the Steel Disclosure Letter and as, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect on Steel, none of Steel, any of its Subsidiaries or any of their respective ERISA Affiliates sponsors, maintains, contributes to or is obligated to contribute to, or within the six years preceding the date of this Agreement sponsored, maintained, contributed to, or was obligated to contribute to, or otherwise has any current or contingent liability or obligation under or with respect to: a Multiemployer Plan or Multiple Employer Plan, and none of Steel, 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 direct or indirect liability under Section 4202, 4204 or 4212(c) of ERISA or has been notified that any Multiemployer Plan listed in Section 4.10(c) of the Code Steel Disclosure Letter has undergone or is expected to undergo a mass withdrawal or termination (or treatment of a plan amendment as termination).
(d) Except as, individually or in connection with the termination ofaggregate, withdrawal would not reasonably be expected to have a Material Adverse Effect on Steel, each of the Steel Benefit Plans intended to be “qualified” within the meaning of Section 401(a) of the Code, has received a favorable determination letter or opinion letter as to its qualification or may rely upon a current advisory letter from the IRS and there are no existing circumstances or failure to fund, any Company Plan or other retirement plan or arrangement, and no fact or event exists events that have occurred that would reasonably be expected to give rise to adversely affect the qualified status of any such liability; andplan.
(ve) Section 4.10(e) of the Company and its Subsidiaries do not maintain any Company Steel Disclosure Letter sets forth each Steel Benefit Plan that is subject to Section 302 or Title IV or Section 412, 430 or 4971 of the Code (each, a “group health planSteel Title IV Plan”). With respect to each Steel Title IV Plan, except for matters that, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect on Steel, (A) there does not exist any accumulated funding deficiency within the meaning of Section 412 of the Code and all contributions required under Section 302 of ERISA have been timely made, whether or not waived, (B) no such Steel Title IV Plan is currently in “at risk” status within the meaning of Section 430 of the Code or Section 303(i) of ERISA, (as such term C) no reportable event within the meaning of Section 4043(c) of ERISA for which the 30-day notice requirement has been waived, has occurred or is defined reasonably expected to result, (D) none of Steel, any of its Subsidiaries or any of their respective ERISA Affiliates has engaged in any transaction described in Section 5000(b)(14069 of ERISA, (E) all premiums to the Pension Benefit Guaranty Corporation (the “PBGC”) have been timely paid in full, (F) no liability (other than for premiums to the PBGC) has been or, to the Knowledge of Steel, is expected to be incurred by Steel or any of its Subsidiaries and (G) the Code) that PBGC has not been administered and operated instituted proceedings to terminate any such Steel Title IV Plan. Except for matters that, individually or in all respects in compliance with the applicable requirements aggregate, would not reasonably be expected to have a Material Adverse Effect on Steel, 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 Effective Time of Section 601 Steel, any of ERISA and Section 4980B(b) of the Code, and the Company and its Subsidiaries are not subject to or any liability, including additional contributions, fines, penalties or loss of Tax deductions, as a result of such administration and operation; andtheir respective ERISA Affiliates.
(df) None of the Company Plans provides for payment of a benefitExcept as provided by this Agreement, the increase of a benefit amount, the payment of a contingent benefit, the acceleration of a payment or the vesting of a benefit determined or occasioned, in whole or in part, by reason of neither the execution and delivery of this Agreement or nor the consummation of the transactions contemplated hereby (either alone or in conjunction with any other event). None of the Company Plans ) will (A) cause or result in any other plan agreement or arrangement in effect immediately prior to the Closing could result separately or in the aggregate in connection with the transactions contemplated by this Agreement payment (either alone or in conjunction with any other event) in the payment of any 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 Steel or its Subsidiaries under any Steel Benefit Plan, (B) increase any compensation or benefits otherwise payable under any Steel Benefit Plan or (C) result in any acceleration of the time of payment, funding or vesting of any such benefits.
(eg) Each Company Plan that No Person is entitled to receive any additional payment (including any Tax gross-up or other payment) from Steel or any of its Subsidiaries as a “nonqualified deferred compensation plan” within result of the meaning imposition of the excise Taxes required by Section 409A(d)(1) 4999 of the Code has complied in form and operation with the requirements of or any Taxes required by Section 409A of the Code. No current Steel Benefit Plan provides for payments or former employeebenefits in connection with the transactions contemplated by this Agreement that, director individually or other service provider is entitled in the aggregate, would reasonably be expected to any gross-up, make-whole or other additional give rise to the payment from the Company or any of its Subsidiaries in respect of any amount that would result in a loss of Tax (including Federal, state, local or foreign income, excise or other Taxes (including Taxes imposed under deductions pursuant to Section 409A and 4999 280G of the Code.
(h) Except as, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect on Steel, all Steel Benefit Plans subject to the laws of any jurisdiction outside of the United States (A) have been maintained in accordance with its terms, Applicable Laws and all other applicable requirements, (B) that are intended to qualify for special Tax treatment meet all requirements for such treatment, (C) that are intended to be funded or book-reserved are fully funded or book reserved, as appropriate, based upon reasonable actuarial assumptions, and (D) if required to be registered, has been registered and has been maintained in good standing with applicable regulatory authorities. No Steel Benefit Plan subject to the laws of any jurisdiction outside of the United States is a “defined benefit plan” (as defined in ERISA, whether or not subject to ERISA)) or interest or penalty related thereto.
Appears in 1 contract
Samples: Merger Agreement (Cedar Fair L P)
Benefit Plans. (a) Section 3.11(a4.17(a) of the Company Disclosure Letter sets forth a true and complete list, as of the date hereof, of each lists all “employee benefit planplans” (within the meaning of section Section 3(3) of the Employee Retirement Income Security Act of 1974 (“ERISA”)), “multiemployer plan” (within the meaning of ERISA section 3(37)) and all stock purchase, stock option, phantom stock or other equity-based plan, severance, employment, collective bargainingconsulting, change-inof-control, fringe benefit, bonus, incentive, deferred compensation and all other employee benefit and compensation plans (including the Company Stock Plan), agreements, programs, policies or commitments, whether or not subject to ERISA (other than any material 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 otherwisecommitments mandated under applicable Law), whether formal or informal, written or oral, legally binding or not, (i) under which any current or former employeedirector, director officer, employee or consultant of the Company or any of its Subsidiaries has any right to benefits, and (ii) which are maintained, sponsored or contributed to by the Company or any of their dependents) has any present its Subsidiaries or future right to compensation or benefits or which the Company or any of its Subsidiaries has had makes or has any present or future liability or is required to make contributions with respect to which it is otherwise bound such directors, officers, employees or consultants other than any “multiemployer plan” (collectivelyas defined in Section 3(37) or 4001(a)(3) of ERISA (“Multiemployer Plan”)). All such plans, agreements, programs, policies and commitments are collectively referred to as the “Company Benefit Plans.”).
(b) With respect to each Company Benefit Plan, if applicable, the Company has made available to Parent a true and complete copy thereof and, to the extent applicable: copies of (i) the written document evidencing such Company Benefit Plan or, with respect to any related trust agreement or other funding instrumentsuch plan that is not in writing, a written description of the material terms thereof; (ii) the summary plan description; (iii) the most recent annual report, financial statement and/or actuarial report; (iv) the most recent determination letter of received from the Internal Revenue Service (the “IRS”); (v) the most recent Form 5500 required to have been filed with the IRS, if applicable, including all schedules thereto; (iiivi) any summary plan description and other written communications (related trust agreements, insurance contracts or a description documents of any oral communicationsother funding arrangements; (vii) by any material notices to or from the Company IRS or its Subsidiaries to their employees concerning the extent any office or representative of the benefits provided under a Department of Labor relating to any compliance issues which have not been resolved in respect of any such Company Benefit Plan; (viii) all amendments, modifications or supplements to any Company Benefit Plan; and (ivix) for documents evidencing any discrimination or coverage tests performed during the two most recent years (A) the Form 5500 and attached schedules, (B) audited financial statements, (C) actuarial valuation reports and (D) attorney’s response to an auditor’s request for information.
(b) No Company Plan is subject to Title IV of ERISA or Section 412 of the Code, no Company Plan is a multiemployer last plan (within the meaning of Section 3(37) of ERISA), and neither the Company nor any member of its Controlled Group (defined as any organization which is a member of a controlled group of organizations within the meaning of Code Sections 414(b), (c), (m) or (o)) has any liability (direct or contingent) with respect to, and has never incurred any liability (director or contingent) with respect to, any employee benefit plan subject to Title IV of ERISA. No Company Plan provides health or other welfare benefits to former employees of the Company or its Subsidiaries other than health continuation coverage pursuant to COBRAyear.
(c) With respect to the Company Plans, except to the extent that the inaccuracy of any of the representations set forth in this paragraph (c)Except as would not reasonably be expected, individually or in the aggregate, has not been and would not reasonably be expected to be result in a Liability material to the Company and its Subsidiaries, taken as a whole:
, (i) each Company Benefit Plan has been established and administered is in accordance with its terms and in material compliance with ERISA, the Code and other applicable provisions of applicable Law, including ERISA Law and the Code, and (ii) all contributions required to be made under to the Company Benefit Plans pursuant to their terms of any Company Plan and applicable Law have been timely made;made or accrued in accordance with GAAP.
(iid) With respect to each Company Benefit Plan that is intended to be qualified qualify under Section 401(a) of the Code has received (i) a favorable determination, advisory or opinion letter, as applicable, from determination letter has been issued by the IRS that it is so qualified with respect to such qualification, (ii) its related trust has been determined to be exempt from taxation under Section 501(a) of the Code, and nothing has occurred that would reasonably be expected to cause the loss of such qualified status of such Company Plan;
(iii) there is no Action event has occurred since the date of such qualification or exemption that would materially adversely affect such qualification or exemption.
(including any investigation, audit or other administrative proceedinge) 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 There have been no (i) non-exempt prohibited transactions (as defined in Section 4975(c) of the Company, threatened, relating to the Company Plans, any fiduciaries thereof Code and Section 406 of ERISA) with respect to their duties to the Company Plans or the assets of any of the trusts under any of the 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;
(iv) neither the Company nor its Subsidiaries nor any of their Affiliates has incurred any direct or indirect liability under ERISA or the Code in connection with the termination of, withdrawal from or failure to fund, any Company Plan or other retirement plan or arrangement, and no fact or event exists that would reasonably be expected to give rise to any such liability; and
(v) the Company and its Subsidiaries do not maintain any Company Benefit Plan that is subject to Section 4975 of the Code or Section 406 of ERISA, where the Company or any party dealing with such Company Benefit Plan or any such trust would be reasonably expected to be subject to either a “group health plan” 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, (ii) reportable events (as such term is defined in Section 5000(b)(14043(c) of ERISA), or (iii) breaches of any of the duties imposed on “fiduciaries” (within the meaning of Section 3(21) of ERISA) by ERISA with respect to the Company Benefit Plans that are subject to ERISA, in each case, that could reasonably be expected to result in any material liability or excise tax under ERISA or the Code being imposed on the Company or any of its Subsidiaries.
(f) At no time preceding the date of this Agreement for any periods for which the statute of limitations is still open, has the Company or any of its Subsidiaries or Affiliates had any obligation to contribute to any Multiemployer Plan and the Company has no outstanding liability with respect to any outstanding claims for any withdrawal liability (within the meaning of Section 4201 of ERISA) that were previously assessed by any such plan.
(g) No Company Benefit Plan is a “multiple employer” plan (as defined in Section 4063 or 4064 of ERISA) or is funded by, associated with or related to a “voluntary employees’ beneficiary association” (within the meaning of Section 501(c)(9) of the Code).
(h) With respect to each Company Benefit Plan that has not been administered and operated in all respects in compliance with the applicable requirements of is subject to Title IV or Section 601 302 of ERISA and or Section 4980B(b) 412 or 4971 of the Code, and as of the last day of the Company’s fiscal year, December 31, 2012, the actuarially-determined present value of all “benefit liabilities” (within the meaning of Section 4001(a)(16) of ERISA) did not exceed the then-current value of assets of such Company Benefit Plan or, if such liabilities did exceed such assets, the amount thereof was properly reflected on the financial statements of Company or its applicable Subsidiary previously filed with the SEC.
(i) Neither the Company nor any of its Subsidiaries has disseminated in writing any legally binding commitment to create or implement any additional employee benefit plan that would be a Company Employee Plan if in existence on the date hereof, or to amend, modify or terminate any Company Employee Plan, in each such case that would result in the incurrence of a Liability material to the Company and its Subsidiaries are not subject to any liability, including additional contributions, fines, penalties or loss of Tax deductions, taken as a result of such administration and operation; andwhole.
(dj) None of the Company Plans provides for payment of a benefitExcept as set forth in this Agreement, the increase of a benefit amount, the payment of a contingent benefit, the acceleration of a payment or the vesting of a benefit determined or occasioned, in whole or in part, by reason of the execution and delivery of this Agreement or and the consummation of the transactions contemplated hereby will not (either alone or in conjunction combination with any other event). None of the Company Plans or any other plan agreement or arrangement in effect immediately prior to the Closing could result separately or in the aggregate in connection with the transactions contemplated by this Agreement (either alone or in conjunction with any other another event) (i) result in the payment of any “excess parachute payment” within the meaning of Section 280G of the Code.
(e) Each Company Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A(d)(1) of the Code has complied in form and operation with the requirements of Section 409A of the Code. No current or former employee, director or other service provider is entitled to any gross-up, make-whole or other additional material payment from the Company or any of its Subsidiaries becoming due, or increase the amount of any compensation due, to any current or former director, officer, employee or consultant of the Company or any of its Subsidiaries, (ii) increase any material benefits otherwise payable under any Company Benefit Plan, (iii) result in the acceleration of the time of payment or vesting of any material compensation or benefits from the Company or any of its Subsidiaries to any current or former director, officer, employee or consultant of the Company or any of its Subsidiaries, except the vesting of the Restricted Stock, as provided herein or as earlier vested by the Company’s Board of Directors in its sole discretion, (iv) result in the payment of any amount that would not be deductible pursuant to the terms of Section 280G of the Code or trigger any excise tax under Section 4999 of the Code, or (v) result in any limitation on the right of the Company or any of its Subsidiaries to amend, merge, terminate or receive a reversion of assets from any Company Benefit Plan or related trust upon more than 30 days advance notice and giving rise to a Liability material to the Company and its Subsidiaries as a result thereof.
(k) No deduction for federal income tax purposes by the Company has been disallowed for remuneration paid by the Company and its Subsidiaries by reason of Section 162(m) of the Code.
(l) Each Company Benefit Plan is amendable and terminable unilaterally by the Company or one or more of its Subsidiaries upon no more than 30 days advance notice without Liability material to the Company and its Subsidiaries as a result thereof.
(m) Any Company Benefit Plan that is in existence on the date of this Agreement and is a non-qualified deferred compensation plan or arrangement subject to Section 409A of the Code is in material compliance with Section 409A of the Code in form and in operation.
(n) No Company Benefit Plan is maintained outside the jurisdiction of the United States or covers any employee residing or working outside the United States.
(o) There are no pending, or threatened, claims or litigation against any Company Benefit Plan or actions by any Governmental Authority with respect to termination proceedings or other claims (other than ordinary claims for benefits payable in the normal operation of the Company Benefit Plans), and no written communication has been received from the Pension Benefit Guaranty Corporation in respect of any Tax (including Federal, state, local or foreign income, excise or other Taxes (including Taxes imposed under Section 409A Company Benefit Plan subject to Title IV of ERISA indicating that the plan had failed to meet the minimum funding standard within the meaning of Sections 412 and 4999 430 of the Code)Code (whether or not waived) or interest notifying the Company of the institution of any proceeding to terminate any such plan.
(p) Upon consummation of the Merger, all Company Options with an exercise price equal to, or penalty related theretogreater than, the Merger Consideration can be cancelled by the Company without any Liability to the holder thereof.
Appears in 1 contract
Samples: Merger Agreement (Frozen Food Express Industries Inc)
Benefit Plans. (a) Section 3.11(a3.14(a) of the Company Seller Disclosure Letter sets forth Schedule contains a true and complete list, as of the date hereof, of each deferred compensation, incentive compensation, equity purchase, equity option and other equity compensation plan, program or agreement; each severance or termination pay, medical, surgical, hospitalization, life insurance and other “employee benefit welfare” plan” , fund or program (within the meaning of section 3(33(1) of the Employee Retirement Income Security Act of 1974 (ERISA); each profit-sharing, equity bonus or other “ERISA”))pension” plan, “multiemployer plan” fund or program (within the meaning of ERISA section 3(373(2) of ERISA)) ; each employment, termination or severance agreement; and all stock purchase, stock option, phantom stock or each other equity-based material employee benefit plan, severancefund, employmentprogram or agreement, collective bargainingin each case, change-in-controlthat is sponsored, fringe benefitmaintained, bonus, incentive, deferred compensation and all other employee or contributed to by the Company or any of its Subsidiaries or maintained by Seller for the benefit and compensation 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), whether formal or informal, written or oral, legally binding or not, under which any current or former employee, director or consultant employees of the Company or its Subsidiaries (or any in which employees of their dependents) has any present or future right to compensation or benefits or the Company or its Subsidiaries has had or has any present or future liability or with respect to which it is otherwise bound participate (collectively, the “Company Plans”), and Section 3.14(a) of the Seller Disclosure Schedule indicates which of such Company Plans, if any, are sponsored or maintained by the Company or any Subsidiary thereof. With respect to each Company Plan, the Company Seller has heretofore made available to Parent a Purchaser true and complete copy thereof andcopies, to the extent applicable: (i) , of the plan documents and any amendments thereto and any related trust agreement or other funding instrument, (ii) vehicle and any reports or summaries required under ERISA or the most recent determination letter of the Internal Revenue Service (the “IRS”), if applicable, (iii) any summary plan description and other written communications (or a description of any oral communications) by the Company or its Subsidiaries to their employees concerning the extent of the benefits provided under a Company Plan, and (iv) for the two most recent years (A) the Form 5500 and attached schedules, (B) audited financial statements, (C) actuarial valuation reports and (D) attorney’s response to an auditor’s request for informationCode.
(b) No To the Knowledge of Seller, (i) no liability under Title IV or Section 302 of ERISA has been incurred by the Company Plan is or any Subsidiary thereof that has not been satisfied in full, and (ii) no condition exists that presents a material risk to the Company or any Subsidiary thereof of incurring any such liability. Neither the Company nor any ERISA Affiliate thereof contributes to, or since December 5, 2007 has contributed to or has (or, at any time since December 5, 2007, had any liability or obligation, whether actual or contingent), with respect to any plan that is, (i) a “multiemployer pension plan”,” as defined in section 3(37) of ERISA, (ii) a pension plan subject to Title IV or Section 302 of ERISA or Section 412 of the Code, no Company Plan is (iii) a multiemployer plan voluntary employees’ beneficiary association under Section 401(c)(9) of the Code, or (iv) a welfare benefit fund within the meaning of Section 3(37419(e) of ERISA), and neither the Company nor any member of its Controlled Group (defined as any organization which Code. To the extent that a plan that is a member of a controlled group of organizations within the meaning of Code Sections 414(b), (c), (m) or (o)) has any liability (direct or contingent) with respect to, and has never incurred any liability (director or contingent) with respect to, any employee benefit plan subject to Title IV of ERISA. No Company Plan provides health or other welfare benefits to former employees of sponsored by the Company or its Subsidiaries other than health continuation coverage pursuant any ERISA Affiliate is subject to COBRASection 409A of the Code, any such plan or program complies with the requirements of this Section, and no plan failure has occurred which would subject any covered person to the tax specified in Section 409A(a)(1)(B) of the Code.
(c) With respect to the Company Plans, except to the extent that the inaccuracy of any of the representations set forth in this paragraph (c), individually or in the aggregate, has not been and would not reasonably be expected to be material to the Company and its Subsidiaries, taken as a whole:
(i) each Each Company Plan has been established operated and administered in all material respects as it relates to employees of the Company in accordance with its terms and in compliance with the applicable provisions of applicable Law, including ERISA and the Code.
(d) No Company Plan provides medical, and all contributions required surgical, hospitalization, death or similar benefits (whether or not insured) for current or former employees of the Company or any Subsidiary for periods extending beyond their retirement dates or other termination of service, other than coverage mandated by applicable Law.
(e) Except as set forth on Section 3.14(e) of the Seller Disclosure Schedule, the consummation of the transactions contemplated by this Agreement will not, either alone or in combination with another event, (i) entitle any current or former employee of the Company or any Subsidiary to be made severance pay, unemployment compensation, or any other payment under the terms of any Company Plan have been timely made;
Plan, or (ii) each Company Plan intended to be qualified accelerate the time of payment or vesting, or increase the amount of compensation due any such employee under Section 401(a) of the Code has received a favorable determination, advisory or opinion letter, as applicable, from the IRS that it is so qualified and nothing has occurred that would reasonably be expected to cause the loss of such qualified status of such any Company Plan;.
(iiif) there is There are no Action (including any investigationpending or, audit or other administrative proceeding) 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 the CompanySeller, threatened, relating to the Company Plans, any fiduciaries thereof with respect to their duties to the Company Plans threatened claims by or the assets on behalf of any of the trusts Company Plan, by any employee or beneficiary covered under any of the such Company Plans Plan, or otherwise involving any such Company Plan (other than routine claims for benefits) nor are there facts or circumstances that exist that could reasonably give rise ), in each case relating to any such Actions;
(iv) neither the Company nor its Subsidiaries nor any employee of their Affiliates has incurred any direct or indirect liability under ERISA or the Code in connection with the termination of, withdrawal from or failure to fund, any Company Plan or other retirement plan or arrangement, and no fact or event exists that would reasonably be expected to give rise to any such liability; and
(v) the Company and its Subsidiaries do not maintain any Company Plan that is a “group health plan” (as such term is defined in Section 5000(b)(1) of the Code) that has not been administered and operated in all respects in compliance with the applicable requirements of Section 601 of ERISA and Section 4980B(b) of the Code, and the Company and its Subsidiaries are not subject to any liability, including additional contributions, fines, penalties or loss of Tax deductions, as a result of such administration and operation; and
(d) None of the Company Plans provides for payment of a benefit, the increase of a benefit amount, the payment of a contingent benefit, the acceleration of a payment or the 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 hereby (either alone or in conjunction with any other event). None of the Company Plans or any other plan agreement or arrangement in effect immediately prior to the Closing could result separately or in the aggregate in connection with the transactions contemplated by this Agreement (either alone or in conjunction with any other event) in the payment of any “excess parachute payment” within the meaning of Section 280G of the Code.
(e) Each Company Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A(d)(1) of the Code has complied in form and operation with the requirements of Section 409A of the Code. No current or former employee, director or other service provider is entitled to any gross-up, make-whole or other additional payment from the Company or any Subsidiary thereof.
(g) The Seller’s 401k plan is not presently under audit or examination (nor has notice been received of its Subsidiaries in a potential audit or examination) by the IRS, the Department of Labor, or any other Governmental Entity, and no matters are pending with respect of any Tax (including Federalto such plan under the IRS’s voluntary compliance program, stateit closing agreement, local or foreign income, excise or other Taxes (including Taxes imposed under Section 409A and 4999 of the Code)) or interest or penalty related theretosimilar programs.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (International Shipholding Corp)
Benefit Plans. (a) The Company does not currently sponsor, maintain, or contribute to, and has not, within the past five years, sponsored, maintained, or contributed to or been required to contribute to, any "employee pension benefit plan" ("Pension Plan"), as such term is defined in Section 3.11(a3(2) of ERISA, including, solely for the Company Disclosure Letter sets forth purpose of this subsection, a true and complete list, as of the date hereof, of each “employee benefit plan” (within the meaning of section 3(3plan excluded from coverage by Section 4(b)(5) of the Employee Retirement Income Security Act of 1974 (“ERISA”)), “multiemployer plan” (within the meaning of ERISA section 3(37)) and all stock purchase, stock option, phantom stock or other equity-based plan, severance, employment, collective bargaining, 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 or required in the future as a result of the transactions contemplated by this Agreement or otherwise), whether formal or informal, written or oral, legally binding or not, under which any current or former employee, director or consultant of the Company or its Subsidiaries (or any of their dependents) has any present or future right to compensation or benefits or the Company or its Subsidiaries has had or has any present or future liability or with respect to which it is otherwise bound (collectively, the “Company Plans”). With respect to each Company Plan, the Company has made available to Parent a true and complete copy thereof and, to the extent applicable: (i) any related trust agreement or other funding instrument, (ii) the most recent determination letter of the Internal Revenue Service (the “IRS”), if applicable, (iii) any summary plan description and other written communications (or a description of any oral communications) by the Company or its Subsidiaries to their employees concerning the extent of the benefits provided under a Company Plan, and (iv) for the two most recent years (A) the Form 5500 and attached schedules, (B) audited financial statements, (C) actuarial valuation reports and (D) attorney’s response to an auditor’s request for information.
(b) No The Company does not sponsor, maintain, contribute to, or has not, within the past five years, sponsored, maintained, or contributed to or been required to contribute to, any Pension Plan that is subject to Title IV of ERISA ERISA.
(c) The Company does not sponsor, maintain, or contribute to any "employee welfare benefit plan" ("Welfare Plan"), as such term is defined in Section 412 3(1) of the CodeERISA, no whether insured or otherwise. The Company Plan is a multiemployer plan (has not established or contributed to any "voluntary employees' beneficiary association" within the meaning of Section 3(37501(c)(9) of ERISA), and neither the Company nor any member of its Controlled Group Code.
(defined d) Except as any organization which is a member of a controlled group of organizations within the meaning of Code set forth in Sections 414(b), (c), (m) 4.1I or (o)) has any liability (direct or contingent) with respect to, and has never incurred any liability (director or contingent) with respect to, any employee benefit plan subject to Title IV of ERISA. No Company Plan provides health or other welfare benefits to former employees 4.1J of the Company Disclosure Schedule, the Company does not currently maintain or its Subsidiaries contribute to any oral or written bonus, profit-sharing, compensation (incentive or otherwise), commission, stock option, or other than health continuation coverage pursuant to COBRAstock-based compensation, retirement, severance, change of control, vacation, sick or parental leave, dependent care, deferred compensation, cafeteria, disability, hospitalization, medical, death, retiree, insurance, or other benefit or welfare or other similar plan, policy, agreement, trust, fund, or arrangement providing for the remuneration or benefit of all or any employees, directors or any other person, that is neither a Pension Plan nor a Welfare Plan (collectively, the "Compensation Plans").
(ce) With respect to the Company Compensation Plans, except no event has occurred and, to the extent that the inaccuracy of any knowledge of the representations Company, there exists no condition or set forth of circumstances, in this paragraph connection with which the Company would be subject to any liability under the terms of such Plans (cother than the payment of benefits thereunder), ERISA, the Code or any other applicable law that would, individually or in the aggregate, has not been and would not reasonably be expected to be material have a Company Material Adverse Effect.
(f) The IRS has issued favorable determination letters with respect to the all Company and its Subsidiaries, taken as a whole:
(i) each Company Plan has been established and administered in accordance with its terms and in compliance with the applicable provisions of applicable Law, including ERISA and the Code, and all contributions required to be made under the terms of any Company Plan have been timely made;
(ii) each Company Plan Subsidiary Pension Plans that are intended to be qualified under Section 401(a) of the Code Code. The Company has received a provided or made available to Parent summaries of all Pension Plans, Welfare Plans, Compensation Plans, and related agreements, and complete and accurate copies of all annual reports (Form 5500), favorable determinationdetermination letters, advisory current summary plan descriptions, and all employee handbooks or opinion letter, as applicable, from the IRS that it is so qualified and nothing has occurred that would reasonably be expected to cause the loss of such qualified status of such Company Plan;manuals.
(iiig) there is no Action The execution of, and performance of the transactions contemplated in, this Agreement will not (including either alone or upon the occurrence of any investigationadditional or subsequent events) constitute an event under any Compensation Plan, audit or other administrative proceeding) by the Department arrangement that will or may result in any payment (whether of Laborseverance pay or otherwise), the Pension Benefit Guaranty Corporationacceleration, the IRS or any other Governmental Entity or by any plan participant or beneficiary pendingforgiveness of indebtedness, vesting, distribution, increase in benefits, or obligation to the Knowledge of the Company, threatened, relating to the Company Plans, any fiduciaries thereof with respect to their duties to the Company Plans fund benefits. No amount that could be received (whether in cash or property or the assets vesting of property) as a result of any of the trusts under transactions contemplated by this Agreement by any employee, officer, or director of the 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;
(iv) neither the Company nor its Subsidiaries nor any of their Affiliates has incurred any direct or indirect liability under ERISA or the Code in connection with the termination of, withdrawal from or failure to fund, any Company Plan or other retirement plan or arrangement, and no fact or event exists that would reasonably be expected to give rise to any such liability; and
(v) the Company and its Subsidiaries do not maintain any Company Plan that affiliates who is a “group health plan” "disqualified individual" (as such term is defined in proposed Treasury Regulation Section 1.280G-1) under any Compensation Plan currently in effect would be an "excess parachute payment" (as such term is defined in Section 5000(b)(1280G(b)(1) of the Code) that has not been administered and operated in all respects in compliance with the applicable requirements of Section 601 of ERISA and Section 4980B(b) of the Code, and the Company and its Subsidiaries are not subject to any liability, including additional contributions, fines, penalties or loss of Tax deductions, as a result of such administration and operation; and
(d) None of the Company Plans provides for payment of a benefit, the increase of a benefit amount, the payment of a contingent benefit, the acceleration of a payment or the 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 hereby (either alone or in conjunction with any other event). None of the Company Plans or any other plan agreement or arrangement in effect immediately prior to the Closing could result separately or in the aggregate in connection with the transactions contemplated by this Agreement (either alone or in conjunction with any other event) in the payment of any “excess parachute payment” within the meaning of Section 280G of the Code.
(e) Each Company Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A(d)(1) of the Code has complied in form and operation with the requirements of Section 409A of the Code. No current or former employee, director or other service provider is entitled to any gross-up, make-whole or other additional payment from the Company or any of its Subsidiaries in respect of any Tax (including Federal, state, local or foreign income, excise or other Taxes (including Taxes imposed under Section 409A and 4999 of the Code)) or interest or penalty related thereto.
Appears in 1 contract
Samples: Merger Agreement (Landacorp Inc)
Benefit Plans. (a) Section 3.11(a3.13(a) of the Company Seller Disclosure Letter sets forth a true and complete list, as of the date hereofSigning Date, of each “employee benefit plan” (within material Benefit Plan that is applicable to the meaning of section 3(3) Business Employees or individual independent contractors of the Employee Retirement Income Security Act of 1974 (“ERISA”)), “multiemployer plan” (within the meaning of ERISA section 3(37)) Business Group and all stock purchase, stock option, phantom stock or other equity-based plan, severance, employment, collective bargaining, 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 or required in the future as a result of the transactions contemplated by this Agreement or otherwise), whether formal or informal, written or oral, legally binding or not, under which any current or former employee, director or consultant of the Company or its Subsidiaries (or any of their dependents) has any present or future right to compensation or benefits or the Company or its Subsidiaries has had or has any present or future liability or with respect to which it separately identifies each such material Benefit Plan that is otherwise bound (collectively, the “Company Plans”)an Assumed Benefit Plan. With respect to each Company such material Benefit Plan, the Company Seller has made available to Parent Purchaser complete copies or summaries of such Benefit Plan (or, in the case of any unwritten Benefit Plans, written descriptions thereof), including any material amendments thereto; provided that, in the case of any such Benefit Plan that is an agreement to which a true Business Employee or individual independent contractor of the Business Group is a party, Seller may instead make available a form or sample of such agreement, and complete copy thereof andprovide copies of any agreements which vary from such forms or samples. With respect to each Assumed Benefit Plan listed in Section 3.13(a) of the Seller Disclosure Letter, Seller has made available to Purchaser copies of the extent following (as applicable: ): (iA) any related trust agreement trust, insurance, annuity or other funding instrumentContract related thereto, (iiB) the most recent determination letter of the Internal Revenue Service financial statement and actuarial or other valuation report prepared with respect thereto (the “IRS”if any), if applicable, (iiiC) any summary plan description and other written communications (or a description of any oral communications) by the Company or its Subsidiaries to their employees concerning the extent of the benefits provided under a Company Plan, and (iv) for the two most recent years annual reports required to be filed with the applicable Governmental Entity with respect thereto (A) the Form 5500 and attached schedulesif any), (B) audited financial statements, (C) actuarial valuation reports and (D) attorney’s response the most recent summary plan description together with the summary or summaries of all material modifications thereto, (E) the most recent IRS determination or opinion letter, and (F) all material correspondence to an auditor’s request for informationor from the IRS, the United States Department of Labor, the Pension Benefit Guaranty Corporation or any other Governmental Entity received in the last three years, in each case, except to extent prohibited under applicable data privacy Laws or any other obligations to maintain the confidentiality of such information under applicable Law.
(b) No Company Each Benefit Plan that is subject intended to Title IV of ERISA or Section 412 of the Code, no Company Plan is a multiemployer plan (be qualified within the meaning of Section 3(37) of ERISA), and neither the Company nor any member of its Controlled Group (defined as any organization which is a member of a controlled group of organizations within the meaning of Code Sections 414(b), (c), (m) or (o)) has any liability (direct or contingent) with respect to, and has never incurred any liability (director or contingent) with respect to, any employee benefit plan subject to Title IV of ERISA. No Company Plan provides health or other welfare benefits to former employees of the Company or its Subsidiaries other than health continuation coverage pursuant to COBRA.
(c) With respect to the Company Plans, except to the extent that the inaccuracy of any of the representations set forth in this paragraph (c), individually or in the aggregate, has not been and would not reasonably be expected to be material to the Company and its Subsidiaries, taken as a whole:
(i) each Company Plan has been established and administered in accordance with its terms and in compliance with the applicable provisions of applicable Law, including ERISA and the Code, and all contributions required to be made under the terms of any Company Plan have been timely made;
(ii) each Company Plan intended to be qualified under Section 401(a) of the Code has received a favorable determinationdetermination letter as to its qualification (or has filed for such a letter before the expiration of the applicable remedial amendment period), advisory or opinion letter, as applicable, and each trust established in connection with any Benefit Plan which is intended to be exempt from U.S. Federal income taxation under Section 501(a) of the IRS that it Code is so qualified and exempt and, to the Knowledge of Seller, nothing has occurred that would could reasonably be expected to cause the loss of adversely affect such qualified status of such Company Plan;qualification or exemption.
(iiic) there is no Action (including Each Assumed Benefit Plan has been operated in compliance with the terms of the applicable Assumed Benefit Plan, and with all applicable Laws, except, in each case, as have not and would not, individually or in the aggregate, reasonably be expected to result in any investigation, audit or other administrative proceeding) material liability to any Business Group Member. Each Assumed Benefit Plan required to have been approved by the Department of Labor, the Pension Benefit Guaranty Corporation, the IRS or any other a Governmental Entity or by any plan participant or beneficiary pendinghas been so approved, or and no such approval has been revoked nor, to the Knowledge of the CompanySeller, has revocation been threatened, relating except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. Except as have not and would not, individually or in the aggregate, reasonably be expected to result in any material liability to any Business Group Member, all contributions and benefit payments in relation to any Assumed Benefit Plan that are required to be made by any Business Group Member have been timely made or have been properly accrued as a financial indebtedness of the Business Group Member on the Financial Statements.
(d) No Business Group Member has received any written notice of any, and to the Company PlansKnowledge of Seller, there are no, investigations by any Governmental Entity with respect to, or other Proceedings (except routine claims for benefits payable in the ordinary course) against or involving, any fiduciaries thereof with respect Assumed Benefit Plan.
(e) (i) No Benefit Plan covered by Title IV of ERISA has been terminated and no proceedings have been instituted to their duties terminate or appoint a trustee under Title IV of ERISA to the Company Plans or the assets of administer any of the trusts under any of the Company Plans such plan; (ii) no Benefit Plan (other than routine claims for benefitsany Multiemployer Plan) nor are there facts subject to Section 412 of the Code or circumstances Section 302 of ERISA has failed to satisfy the minimum funding standard within the meaning of Section 412 of the Code or Section 302 of ERISA, or obtained a waiver of any minimum funding standard or an extension of any amortization period under Section 412 of the Code or Section 302 or 304 of ERISA; (iii) no Benefit Plan that exist that could reasonably give rise is a single-employer defined benefit pension plan subject to any such Actions;
Section 412 of the Code or Section 302 or Title IV of ERISA is, or is expected to be, considered an at-risk plan within the meaning of Section 430 of the Code or Section 303 of ERISA; (iv) neither the Company nor its Subsidiaries Seller nor any of their its Affiliates has incurred any direct or indirect unsatisfied withdrawal liability under Title IV of ERISA or the Code in connection with the termination of, withdrawal from or failure respect to fund, any Company Plan or other retirement plan or arrangementMultiemployer Plan, and no fact or the aggregate liabilities of Seller and its Affiliates to all Multiemployer Plans in the event exists that of a complete withdrawal therefrom, as of the close of the most recent fiscal year of each Multiemployer Plan ended prior to the Signing Date, would not reasonably be expected to give rise result in material liability to Purchaser, any such liability; and
Group Company or any of their respective Affiliates, in each case, following the Closing and (v) to the Company and its Subsidiaries do not maintain any Company Knowledge of Seller, no Multiemployer Plan that (x) is a in “group health planreorganization” (as such term within the meaning of Section 4241 of ERISA); (y) is, or may reasonably be expected to become, “insolvent” (within the meaning of Section 4245 of ERISA); or (z) is defined in endangered or critical status under Section 5000(b)(1) 432 of the CodeCode or Section 305 of ERISA.
(f) that Each Benefit Plan subject to Section 409A of the Code (if any) has not at all relevant times been administered in compliance in all material respects with applicable document requirements of, and has been operated in compliance in all material respects in compliance with with, Section 409A of the applicable requirements of Code and the regulations and other official guidance promulgated thereunder.
(g) No Benefit Plan requires any commitment to reimburse, make-whole, indemnify or otherwise “gross-up” any person for Tax set forth under Section 601 of ERISA and Section 4980B(b) 409A of the Code, and Section 280G of the Company and its Subsidiaries are not subject to Code, or Section 4999 of the Code (or any liabilitysimilar provision of state, including additional contributions, fines, penalties local or loss of Tax deductions, as a result of such administration and operation; andforeign law) or any other Tax.
(dh) None of the Company Plans provides for payment of a benefit, the increase of a benefit amount, the payment of a contingent benefit, the acceleration of a payment or the vesting of a benefit determined or occasioned, in whole or in part, by reason of the execution and delivery of this Agreement or the consummation of the transactions contemplated hereby (either alone or in conjunction with any other event). None of the Company Plans or any other plan agreement or arrangement in effect immediately prior to the Closing could result separately or in the aggregate in connection with the transactions Transactions will, except as expressly contemplated by this Agreement or as required by applicable Laws, (either alone i) entitle any Business Employee or individual independent contractor of the Business Group to retention, change in control or similar compensation or benefits under any Benefit Plan or cause any Business Employee or individual independent contractor of the Business Group to become eligible for any increase in severance benefits under any Benefit Plan, (ii) accelerate the payment or vesting, or trigger any funding of, compensation or benefits, or increase the amount payable or trigger any other obligation due to, or in conjunction with respect of, any other eventBusiness Employee or individual independent contractor of the Business Group, (iii) directly or indirectly cause Seller or Purchaser, or any of their Affiliates to transfer or set aside any assets to fund any material benefits under any Assumed Benefit Plan, (iv) otherwise give rise to any material liability under any Assumed Benefit Plan, (v) limit or restrict the right to merge, materially amend, terminate, or transfer the assets of any Assumed Benefit Plan on or following the Effective Time, or (vi) result in the payment of any amount that could, individually or in combination with any other such payment, constitute an “excess parachute payment” within the meaning of as defined in Section 280G 280G(b)(1) of the Code.
(ei) Each Company Except as prohibited by applicable Law or a Business Collective Bargaining Agreement, each Assumed Benefit Plan that is a “nonqualified deferred compensation plan” within can be amended, terminated or otherwise discontinued after the meaning of Section 409A(d)(1) of the Code has complied Effective Time in form and operation accordance with the requirements of Section 409A of the Code. No current or former employeeits terms, director or other service provider is entitled without material liabilities to Purchaser, any gross-up, make-whole or other additional payment from the Group Company or any of its Subsidiaries their respective Affiliates, other than ordinary administration expenses typically incurred in respect of any Tax (including Federal, state, local or foreign income, excise or other Taxes (including Taxes imposed under Section 409A and 4999 of the Code)) or interest or penalty related theretoa termination event.
Appears in 1 contract
Benefit Plans. (a) Section 3.11(a) Schedule 4.28 of the Company Disclosure Letter Schedules sets forth a true complete list of the Benefit Plans.
(b) Current and complete listcopies of all written Benefit Plans or, where oral, written summaries of the material terms of them, have been provided or made available to the Purchaser together with current and complete copies of all documents relating to the Benefit Plans, including: all documents establishing, creating or amending any of the Benefit Plans; all trust agreements, funding agreements; insurance contracts, and the most recent financial statements and accounting statements and reports; all booklets, summaries, manuals and written communications of a general nature distributed or made available to any Employees or former employees concerning any Benefit Plans.
(c) Each Pension Plan has been qualified and administered in compliance with (i) the terms thereof, and (ii) the Internal Revenue Code of 1986, as of amended (the date hereof, of each “employee benefit plan” (within the meaning of section 3(3"Code") of and the Employee Retirement Income Security Act of 1974 1974, as amended (“"ERISA”")); and the Corporation has not received, “multiemployer plan” (within the meaning of ERISA section 3(37)) and all stock purchase, stock option, phantom stock or other equity-based plan, severance, employment, collective bargaining, 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 or required in the future as a result last six years, any notice from any Person questioning or challenging such compliance (other than in respect of any claim related solely to that Person).
(d) All obligations to or under the Pension Plans (whether pursuant to their terms or the Code or ERISA) have been satisfied, and there are no outstanding defaults or violations under the Pension Plans by the Corporation nor do the Icarian Stockholders or the Corporation have any actual knowledge, without further enquiry or investigation, of any default or violation by any other party to any Pension Plan.
(e) Other than those required by the Code of ERISA, there have been no improvements, increases or changes to, or promised improvements, increases or changes to, the benefits provided under any Pension Plan. None of the Pension Plans provides for benefit increases or the acceleration of or an increase in funding obligations that are contingent upon or will be triggered by the entering into of this Agreement or the completion of the transactions contemplated by this Agreement or otherwise)Agreement, whether formal or informal, written or oral, legally binding or not, under which any current or former employee, director or consultant other than the full vested of the Company or its Subsidiaries (or any of their dependents) has any present or future right to compensation or accrued benefits or the Company or its Subsidiaries has had or has any present or future liability or with respect to which it is otherwise bound (collectively, the “Company Plans”). With respect to each Company Plan, the Company has made available to Parent a true and complete copy thereof and, to the extent applicable: (i) any related trust agreement or other funding instrument, (ii) the most recent determination letter of the Internal Revenue Service (the “IRS”), if applicable, (iii) any summary plan description and other written communications (or a description of any oral communications) required by the Company or its Subsidiaries to their employees concerning Code upon the extent of the benefits provided under a Company Plan, and (iv) for the two most recent years (A) the Form 5500 and attached schedules, (B) audited financial statements, (C) actuarial valuation reports and (D) attorney’s response to an auditor’s request for information.
(b) No Company Plan is subject to Title IV of ERISA or Section 412 of the Code, no Company Plan is a multiemployer plan (within the meaning of Section 3(37) of ERISA), and neither the Company nor any member of its Controlled Group (defined as any organization which is a member termination of a controlled group of organizations within the meaning of Code Sections 414(b), (c), (m) or (o)) has any liability (direct or contingent) with respect to, and has never incurred any liability (director or contingent) with respect to, any employee benefit plan subject to Title IV of ERISA. No Company Pension Plan provides health or other welfare benefits to former employees of the Company or its Subsidiaries other than health continuation coverage pursuant to COBRA.
(c) With respect to the Company Plans, except to the extent that the inaccuracy of any of the representations set forth in this paragraph (c), individually or in the aggregate, has not been and would not reasonably be expected to be material to the Company and its Subsidiaries, taken as a whole:
(i) each Company Plan has been established and administered in accordance with its terms and in compliance with the applicable provisions of applicable Law, including ERISA and the Code, and all contributions required to be made under the terms of any Company Plan have been timely made;
(ii) each Company Plan intended to be qualified under Section 401(a) of the Code has received a favorable determination, advisory or opinion letter, as applicable, from the IRS that it is so qualified and nothing has occurred that would reasonably be expected to cause the loss of such qualified status of such Company Plan;Code.
(iiif) All employer or employee payments, contributions or premiums required to be remitted, paid to or in respect of each Pension Plan have been paid or remitted in a timely fashion in accordance with the terms of that Pension Plan and the Code and ERISA, and no Taxes, penalties or fees are owing or exigible under any Pension Plan, and to the knowledge of the Corporation there are no liabilities or contingent liabilities in respect of any Pension Plans that have been discontinued.
(g) There is no Action (including any proceeding, action, investigation, audit suit or other administrative proceeding) 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 the Company, threatened, relating to the Company Plans, any fiduciaries thereof with respect to their duties to the Company Plans or the assets of any of the trusts under any of the Company Plans claim (other than routine claims for payment of benefits) nor are there facts or circumstances that exist that could reasonably give rise pending or, to the knowledge of the Corporation, threatened involving any such Actions;
(iv) neither the Company nor its Subsidiaries nor any of their Affiliates has incurred any direct or indirect liability under ERISA or the Code in connection with the termination of, withdrawal from or failure to fund, any Company Pension Plan or other retirement plan or arrangementits assets, and to the knowledge of the Corporation no fact or event exists that would facts exist which could reasonably be expected to give rise to any such liability; andproceeding, action, suit or Claim (other than routine claims for benefits).
(vh) No event has occurred respecting any Pension Plan which could otherwise reasonably be expected to adversely affect the Company and its Subsidiaries do not maintain tax qualified status of any Company Plan that is a “group health such plan” .
(as such term is defined in Section 5000(b)(1i) of the Code) that The Corporation has not been administered and operated in all respects in compliance with the applicable requirements received, or applied for, any payment of Section 601 of ERISA and Section 4980B(b) of the Code, and the Company and its Subsidiaries are not subject to surplus or any liability, including additional contributions, fines, penalties or loss of Tax deductions, payments as a result of such administration and operation; andthe demutualization of the insurer of any Benefit Plan out of or in respect of any Benefit Plan.
(dj) The Corporation has not taken any contribution or premium holidays under any Benefit Plan and there have been no withdrawals or transfers of assets from any Benefit Plan.
(k) All employee data necessary to administer each Benefit Plan is in the possession of the Corporation and is substantially complete, correct and in a form which is sufficient for the proper administration of the Benefit Plan in accordance with its terms and all Laws.
(l) None of the Company Benefit Plans provides for payment provide benefits beyond retirement or other termination of a benefitservice to Employees or former employees, or to the increase beneficiaries of a benefit amountsuch employees, except as required by applicable laws, including but not limited to the payment Consolidated Omnibus Reconciliation Act of a contingent benefit, the acceleration of a payment or the 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 hereby 1985.
(either alone or in conjunction with any other event). m) None of the Company Benefit Plans require or permit a retroactive increase in premiums or payments, or require additional payments or premiums on the termination of any Benefit Plan or insurance contract in respect thereof other plan agreement or arrangement in effect immediately prior than the normal and reasonable administrative fees associated with the termination of benefit plans, and the level of insurance reserves, if any, under any insured Benefit Plan, to the Closing could result separately or in the aggregate in connection with the transactions contemplated by this Agreement (either alone or in conjunction with any other event) in the payment of any “excess parachute payment” within the meaning of Section 280G best of the CodeCorporation's knowledge, is reasonable and sufficient to provide for all incurred but unreported claims.
(e) Each Company Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A(d)(1) of the Code has complied in form and operation with the requirements of Section 409A of the Code. No current or former employee, director or other service provider is entitled to any gross-up, make-whole or other additional payment from the Company or any of its Subsidiaries in respect of any Tax (including Federal, state, local or foreign income, excise or other Taxes (including Taxes imposed under Section 409A and 4999 of the Code)) or interest or penalty related thereto.
Appears in 1 contract
Samples: Merger Agreement (Workstream Inc)
Benefit Plans. (a) Section 3.11(aSchedule 2.13(a) of the Company Disclosure Letter sets forth a true and complete list, as of the date hereof, list of each “employee benefit plan,” (within the meaning of section as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974 1974, as amended (“ERISA”), and each and every written, unwritten, formal or informal plan, agreement, program, policy or other arrangement involving direct or indirect compensation (other than workers’ compensation, unemployment compensation and other government programs), “multiemployer plan” (within the meaning of ERISA section 3(37)) and all stock purchase, stock option, phantom stock or other equity-based planemployment, severance, employmentconsulting, collective bargainingdisability benefits, change-in-controlsupplemental unemployment benefits, fringe benefitvacation benefits, bonus, incentiveretirement benefits, deferred compensation and all compensation, profit-sharing, bonuses, stock options, stock appreciation rights, other employee benefit and compensation plansforms of incentive compensation, agreementspost-retirement insurance benefits, programs, policies or other arrangementsbenefits, whether entered into, maintained or not subject contributed 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), whether formal or informal, written or oral, legally binding or not, under which any current or former employee, director or consultant of the Company or its Subsidiaries (or any of their dependents) has any present or future right to compensation or benefits or the Company or its Subsidiaries has had or has any present or future liability or with respect to which it is otherwise bound the Company has or may in the future have any liability (collectively, the “Company Plans”contingent or otherwise). With Each plan, agreement, program, policy or arrangement required to be set forth on Schedule 2.13(a) pursuant to the foregoing is referred to herein as a “Benefit Plan.”
(b) The Company has delivered the following documents to the Buyer with respect to each Company Benefit Plan: (1) correct and complete copies of all documents embodying such Benefit Plan, the Company has made available to Parent a true including (without limitation) all amendments thereto, and complete copy thereof and, to the extent applicable: (i) any all related trust agreement or other funding instrumentdocuments, (ii2) a written description of any Benefit Plan that is not set forth in a written document, (3) the most recent determination letter summary plan description together with the summary or summaries of material modifications thereto, if any, (4) the three most recent annual actuarial valuations, if any, (5) all Internal Revenue Service (the “IRS”) or Department of Labor (“DOL”) determination, opinion, notification and advisory letters, (6) the three most recent annual reports (Form Series 5500 and all schedules and financial statements attached thereto), if applicableany, (iii7) all material correspondence to or from any summary Governmental or Regulatory Authority received in the last three years, (8) all discrimination tests for the most recent three plan description and other written communications (or a description of any oral communications) by the Company or its Subsidiaries to their employees concerning the extent of the benefits provided under a Company Planyears, and (iv9) for the two most recent years all material written agreements and contracts currently in effect, including (Awithout limitation) the Form 5500 administrative service agreements, group annuity contracts, and attached schedules, (B) audited financial statements, (C) actuarial valuation reports and (D) attorney’s response to an auditor’s request for informationgroup insurance contracts.
(bc) Except as set forth on Schedule 2.13(c), each Benefit Plan has been maintained and administered in all respects in compliance with its terms and with the requirements prescribed by any and all statutes, orders, rules and regulations (foreign and domestic), including (without limitation) ERISA and the Code, which are applicable to such Benefit Plans. All contributions, reserves or premium payments required to be made or accrued as of the date hereof to the Benefit Plans have been timely made or accrued. Each Benefit Plan intended to be qualified under Section 401(a) of the Code and each trust intended to qualify under Section 501(a) of the Code is so qualified and either: (1) has obtained a currently effective favorable determination notification, advisory and/or opinion letter, as applicable, as to its qualified status (or the qualified status of the master or prototype form on which it is established) from the IRS covering the amendments to the Code effected by the Tax Reform Act of 1986 and all subsequent legislation for which the IRS will currently issue such a letter, and no amendment to such Benefit Plan has been adopted since the date of such letter covering such Benefit Plan that would adversely affect such favorable determination; or (2) still has a remaining period of time in which to apply for or receive such letter and to make any amendments necessary to obtain a favorable determination.
(d) No Company Plan plan currently or ever in the past maintained, sponsored, contributed to or required to be contributed to by the Company, any of its Subsidiaries, or any of their respective current or former ERISA Affiliates is or ever in the past was (1) a “multiemployer plan” as defined in Section 3(37) of ERISA, (2) a plan described in Section 413 of the Code, (3) a plan subject to Title IV of ERISA or ERISA, (4) a plan subject to the minimum funding standards of Section 412 of the Code or Section 302 of ERISA, or (5) a plan maintained in connection with any trust described in Section 501(c)(9) of the Code. The term “ERISA Affiliate” means any Person that, no together with the Company Plan is or any Company Subsidiary, would be deemed a multiemployer plan (“single employer” within the meaning of Section 3(37) of ERISA), and neither the Company nor any member of its Controlled Group (defined as any organization which is a member of a controlled group of organizations within the meaning of Code Sections 414(b), (c), (m) or (o)) has any liability (direct or contingent) with respect to, and has never incurred any liability (director or contingent) with respect to, any employee benefit plan subject to Title IV of ERISA. No Company Plan provides health or other welfare benefits to former employees of the Company or its Subsidiaries other than health continuation coverage pursuant to COBRA.
(c) With respect to the Company Plans, except to the extent that the inaccuracy of any of the representations set forth in this paragraph (c), individually or in the aggregate, has not been and would not reasonably be expected to be material to the Company and its Subsidiaries, taken as a whole:
(i) each Company Plan has been established and administered in accordance with its terms and in compliance with the applicable provisions of applicable Law, including ERISA and the Code, and all contributions required to be made under the terms of any Company Plan have been timely made;
(ii) each Company Plan intended to be qualified under Section 401(a) of the Code has received a favorable determination, advisory or opinion letter, as applicable, from the IRS that it is so qualified and nothing has occurred that would reasonably be expected to cause the loss of such qualified status of such Company Plan;
(iii) there is no Action (including any investigation, audit or other administrative proceeding) 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 the Company, threatened, relating to the Company Plans, any fiduciaries thereof with respect to their duties to the Company Plans or the assets of any of the trusts under any of the 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;
(iv) neither the Company nor its Subsidiaries nor any of their Affiliates has incurred any direct or indirect liability under ERISA or the Code in connection with the termination of, withdrawal from or failure to fund, any Company Plan or other retirement plan or arrangement, and no fact or event exists that would reasonably be expected to give rise to any such liability; and
(v) the Company and its Subsidiaries do not maintain any Company Plan that is a “group health plan” (as such term is defined in Section 5000(b)(1) of the Code) that has not been administered and operated in all respects in compliance with the applicable requirements of Section 601 of ERISA and Section 4980B(b) of the Code, and the Company and its Subsidiaries are not subject to any liability, including additional contributions, fines, penalties or loss of Tax deductions, as a result of such administration and operation; and
(d) None of the Company Plans provides for payment of a benefit, the increase of a benefit amount, the payment of a contingent benefit, the acceleration of a payment or the 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 hereby (either alone or in conjunction with any other event). None of the Company Plans or any other plan agreement or arrangement in effect immediately prior to the Closing could result separately or in the aggregate in connection with the transactions contemplated by this Agreement (either alone or in conjunction with any other event) in the payment of any “excess parachute payment” within the meaning of Section 280G of the Code.
(e) Each Company Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A(d)(1) of the Code has complied in form and operation with the requirements of Section 409A of the Code. No current or former employee, director or other service provider is entitled to any gross-up, make-whole or other additional payment from the Company or any of its Subsidiaries in respect of any Tax (including Federal, state, local or foreign income, excise or other Taxes (including Taxes imposed under Section 409A and 4999 of the Code)) or interest or penalty related thereto.
Appears in 1 contract
Samples: Interest Purchase Agreement (Shea Development Corp.)
Benefit Plans. (a) Section 3.11(a) of the Company Disclosure Letter sets forth Schedule 4.18 contains a true and complete list, as of the date hereof, list of each “"employee benefit plan” " (within the meaning of section 3(3) of the Employee Employment Retirement Income Security Act of 1974 1974, as amended (“"ERISA”")), “multiemployer plan” (within the meaning of ERISA section 3(37)) and all stock purchase, stock option, phantom stock or other equity-based plan, severance, employment, collective bargaining, change-in-control, fringe benefit, collective bargaining, 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 or required in the future as a result of the transactions contemplated by this Agreement or otherwise), whether formal or informal, written oral or oralwritten, legally binding or not, not under which any current employee or former employeeemployee of TeleHub, director or consultant of the Company or its Subsidiaries (TTC or any of their dependents) Controlled Group member has any present or future right to compensation or benefits or under which TeleHub, the Company or its Subsidiaries has had TTC or any Controlled Group member has any present or future liability or with respect liability. All such plans, agreements, programs, policies and arrangements shall be collectively referred to which it is otherwise bound as the "Plans."
(collectively, the “Company Plans”). b) With respect to each Company Plan, the Company TeleHub has made available delivered to Parent Newbridge a true current, accurate and complete copy (or, to the extent no such copy exists, an accurate description) thereof and, to the extent applicable: ; (i) any related trust agreement agreement, annuity contract or other funding instrument, ; (ii) the most recent determination letter of the Internal Revenue Service (the “IRS”), if applicable, ; (iii) any summary plan description and other written communications (or a description decision of any oral communications) by the Company or its Subsidiaries to their employees concerning the extent of the benefits provided under a Company Plan, ; and (iv) for the two most recent years plan year (AI) the Form 5500 and attached schedules, ; (BII) audited financial statements, ; (CIII) actuarial valuation reports reports; and (DIV) attorney’s 's response to an auditor’s 's request for information.
(bi) No Company Each Plan has been established and administered in accordance with its terms, and in compliance with the applicable provisions of ERISA, the Internal Revenue Code of 1986, as amended ("Code") and other applicable laws, rules and regulations;
(ii) Each Plan which is subject intended to Title IV of ERISA or Section 412 of the Code, no Company Plan is a multiemployer plan (be qualified within the meaning of Code Section 3(37401(a) is so qualified and has received a favorable determination letter as to its qualification and nothing has occurred, whether by action or failure to act, that could reasonably be expected to cause the loss of ERISA)such qualification;
(iii) With respect to any Plan, no actions, suits or claims (other than routine claims for benefits in the ordinary course) are pending or, threatened, and, no facts or circumstances exist which could give rise to any such actions, suits, or claims;
(iv) No event has occurred and neither no condition exists that would subject TeleHub, the Company nor or TTC, or any member of its "Controlled Group Group" (defined as any organization which is a member of a controlled group of organizations within the meaning of Code Sections 414(b), (c), (m) or (o)) has any liability (direct or contingent) with respect tothat includes TeleHub, and has never incurred any liability (director or contingent) with respect to, any employee benefit plan subject to Title IV of ERISA. No Company Plan provides health or other welfare benefits to former employees of the Company or its Subsidiaries other than health continuation coverage pursuant to COBRA.
(c) With respect to the Company Plans, except to the extent that the inaccuracy of any of the representations set forth in this paragraph (cTTC respectively), individually to any tax, fine, lien, penalty or in the aggregateother liability imposed by ERISA, has not been and would not reasonably be expected to be material to the Company and its Subsidiaries, taken as a whole:
(i) each Company Plan has been established and administered in accordance with its terms and in compliance with the applicable provisions of applicable Law, including ERISA and the Code, and all contributions required to be made under the terms of any Company Plan have been timely made;
(ii) each Company Plan intended to be qualified under Section 401(a) of the Code has received a favorable determination, advisory or opinion letter, as applicable, from the IRS that it is so qualified and nothing has occurred that would reasonably be expected to cause the loss of such qualified status of such Company Plan;
(iii) there is no Action (including any investigation, audit or other administrative proceeding) by the Department of Laborapplicable laws, 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 the Company, threatened, relating to the Company Plans, any fiduciaries thereof with respect to their duties to the Company Plans or the assets of any of the trusts under any of the Company Plans (other than routine claims for benefits) nor are there facts or circumstances that exist that could reasonably give rise to any such Actionsrules and regulations;
(iv) neither the Company nor its Subsidiaries nor any of their Affiliates has incurred any direct or indirect liability under ERISA or the Code in connection with the termination of, withdrawal from or failure to fund, any Company Plan or other retirement plan or arrangement, and no fact or event exists that would reasonably be expected to give rise to any such liability; and
(v) the Company and its Subsidiaries do not maintain any Company Plan that is a “group health plan” (as such term is defined in Section 5000(b)(1) of the Code) that has not been administered and operated in all respects in compliance with the applicable requirements of Section 601 of ERISA and Section 4980B(b) of the Code, and the Company and its Subsidiaries are not subject to any liability, including additional contributions, fines, penalties or loss of Tax deductions, as a result of such administration and operation; and
(d) None of the Company Plans provides for payment of a benefit, the increase of a benefit amount, the payment of a contingent benefit, the acceleration of a payment or the 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 hereby (either alone or in conjunction with any other event). None of the Company Plans or any other plan agreement or arrangement in effect immediately prior to the Closing could result separately or in the aggregate in connection with the transactions contemplated by this Agreement (either alone or in conjunction with any other event) in the payment of any “excess parachute payment” within the meaning of Section 280G of the Code.
(e) Each Company Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A(d)(1) of the Code has complied in form and operation with the requirements of Section 409A of the Code. No current or former employee, director or other service provider is entitled to any gross-up, make-whole or other additional payment from the Company or any of its Subsidiaries in respect of any Tax (including Federal, state, local or foreign income, excise or other Taxes (including Taxes imposed under Section 409A and 4999 of the Code)) or interest or penalty related thereto.
Appears in 1 contract
Samples: Organizational Agreement (Telehub Communications Corp)
Benefit Plans. (a) Section 3.11(a3.16(a) of the Company Disclosure Letter sets forth a true and complete list, as of the date hereof, of each lists all “employee benefit planplans” (within the meaning of section Section 3(3) of the Employee Retirement Income Security Act of 1974 1974, as amended (“ERISA”)), “multiemployer plan” (within the meaning of ERISA section 3(37)) and all material stock purchase, stock option, phantom stock or other equity-based plancompensation, severance, retention, employment, collective bargainingconsulting, change-inof-control, fringe benefit, bonus, incentive, commission, deferred compensation compensation, pension, profit-sharing, life, medical, disability, accident, cafeteria, vacation or paid time off, fringe benefit, employment, consulting and all other employee benefit and or compensation plans, agreements, programs, policies or other arrangementscommitments, 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)ERISA, whether formal for the benefit of one individual or informalmore than one individual, and whether written or oral, legally binding in effect as of the date hereof (i) which are maintained, sponsored or notcontributed to by the Company or any of its Subsidiaries, under (ii) to which the Company or any current of its Subsidiaries makes or former employeeis required to make contributions with respect to directors, director officers, employees or consultant of consultants, (iii) to which the Company or its Subsidiaries is a party, or (or any of their dependentsiv) has any present or future right to compensation or benefits or the Company or its Subsidiaries has had or has any present or future liability or with respect to which it is otherwise bound (collectivelythe Company or any of its Subsidiaries has or may have liability. All such plans, agreements, programs, policies and commitments are collectively referred to as the “Company Benefit Plans.”).
(b) With respect to each Company Benefit Plan, the Company has made available to Parent a true and complete copy thereof copies of the plan document (or, in the case of a material unwritten Company Benefit Plan, a written description thereof), and any applicable award agreements, and, to the extent applicable: , true and complete copies of (i) the most recent summary plan description and any related trust agreement or other funding instrumentsummaries of material modifications, (ii) the most recent annual report on Form 5500 (including all schedules), (iii) the most recent annual audited financial statements and opinion, (iv) any related trust agreements, insurance contracts, insurance policies or other documents of any funding arrangements and (v) if the Company Benefit Plan is intended to qualify under Section 401(a) of the Internal Revenue Code of 1986, as amended (the “Code”), the most recent determination letter of or opinion received from the Internal Revenue Service (the “IRS”), if applicable, (iii) any summary plan description and other written communications (or a description of any oral communications) by the Company or its Subsidiaries to their employees concerning the extent of the benefits provided under a Company Plan, and (iv) for the two most recent years (A) the Form 5500 and attached schedules, (B) audited financial statements, (C) actuarial valuation reports and (D) attorney’s response to an auditor’s request for information.
(bc) No Company Plan is subject to Title IV of ERISA or Section 412 of the Code, no Company Plan is a multiemployer plan (within the meaning of Section 3(37) of ERISA), and neither Neither the Company nor any member of its Controlled Group (defined as any organization which is a member of a controlled group of organizations within the meaning of Code Sections 414(b)ERISA Affiliates, (c)maintains, (m) sponsors or (o)) has any liability (direct or contingent) with respect contributes to, and has never incurred any liability (director not maintained, sponsored or contingent) with respect contributed to, any employee benefit plan subject to Section 412 of the Code or Title IV of ERISA, any “multiemployer plan” (as defined in Section 3(37) of ERISA), any “multiple employer plan” (within the meaning of Section 413(c) of the Code), or any “multiple employer welfare arrangement” (within the meaning of Section 3(40) of ERISA).
(d) Except as would not reasonably be expected to be material to the Company and its Subsidiaries taken as a whole, each Company Benefit Plan is in compliance with its terms, ERISA, the Code and other applicable Law, and all required annual returns and other reports for each Company Benefit Plan have been filed on a timely basis with the IRS, the U.S. Department of Labor, and any other applicable Governmental Authority. With respect to each Company Benefit Plan that is intended to qualify under Section 401(a) of the Code (i) a favorable determination letter or opinion has been issued by the IRS with respect to such qualification, and (ii) to the Knowledge of the Company, no event has occurred since the date of such letter or opinion that would adversely affect such qualification. All contributions required to be made to each Company Benefit Plan, and all payments required to be made pursuant to the Company Benefit Plan, have been timely made or accrued in accordance with GAAP. Neither the Company, any Subsidiary, nor any ERISA Affiliate 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.
(e) To the Knowledge of the Company, no Company Benefit Plan is under audit by, or is the subject of an investigation by, the IRS, the U.S. Department of Labor, the Pension Benefit Guaranty Corporation, the SEC or any other Governmental Authority, nor is any such audit or investigation pending or, to the Company’s Knowledge, threatened.
(f) No Company Benefit Plan provides health health, medical, life insurance or other welfare death benefits to current or former employees employees, officers, directors, or consultants of the Company or any of its Subsidiaries beyond their retirement or other than termination of service, other than, with respect to current or former employees, coverage mandated by the Consolidated Omnibus Budget Reconciliation Act of 1985 or Section 4980B of the Code, or any similar state group health plan continuation coverage pursuant to COBRALaw, the cost of which is fully paid by such current or former employees or their dependents.
(cg) With respect to the Company Plans, except to the extent that the inaccuracy of any of the representations Except as set forth in this paragraph Agreement, the execution and delivery of this Agreement and the consummation of the Transactions will not (c), individually either alone or in combination with another event) (i) result in any payment or benefit from the aggregateCompany or any of its Subsidiaries becoming due, has not been or increase the amount of any compensation due, to any current or former employee, officer, director, or consultant of the Company or any of its Subsidiaries, (ii) increase any benefits otherwise payable under any Company Benefit Plan or otherwise payable from the Company or any of its Subsidiaries to any current or former employee, officer, director, or consultant, (iii) result in the acceleration of the time of payment or vesting of any compensation or benefits from the Company or any of its Subsidiaries to any current or former employee, officer, director, or consultant of the Company or any of its Subsidiaries, (iv) result in any obligation to fund benefits with respect to any current or former employee, officer, director, or consultant of the Company or any of its Subsidiaries, (v) result in any “excess parachute payments” within the meaning of Section 280G(b)(1) of the Code or (vii) limit or restrict the right to amend, terminate or transfer the asset of any Company Benefit Plan on or following the Effective Time.
(h) There are no pending, or, to the Knowledge of the Company, threatened, Legal Actions against any Company Benefit Plan, other than claims for benefits incurred in the ordinary course by participants and beneficiaries or as would not reasonably be expected to be material to the Company and its Subsidiaries, taken as a whole:.
(i) each Company Plan has been established and administered in accordance with its terms and in compliance with the applicable provisions of applicable Law, including ERISA and the Code, and all contributions required to be made under the terms of any Company Plan have been timely made;
(ii) each Company Plan intended to be qualified under Section 401(a) of the Code has received a favorable determination, advisory or opinion letter, as applicable, from the IRS that it is so qualified and nothing has occurred that would reasonably be expected to cause the loss of such qualified status of such Company Plan;
(iii) there is no Action (including any investigation, audit or other administrative proceeding) 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 the Company, threatened, relating to the Company Plans, any fiduciaries thereof with respect to their duties to the Company Plans or the assets of any of the trusts under any of the 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;
(iv) neither the Company nor its Subsidiaries nor any of their Affiliates has incurred any direct or indirect liability under ERISA or the Code in connection with the termination of, withdrawal from or failure to fund, any Company Plan or other retirement plan or arrangement, and no fact or event exists that would reasonably be expected to give rise to any such liability; and
(v) the Company and its Subsidiaries do not maintain any Company Plan that is a “group health plan” (as such term is defined in Section 5000(b)(1) of the Code) that has not been administered and operated in all respects in compliance with the applicable requirements of Section 601 of ERISA and Section 4980B(b) of the Code, and the Company and its Subsidiaries are not subject to any liability, including additional contributions, fines, penalties or loss of Tax deductions, as a result of such administration and operation; and
(d) None of the Company Plans provides for payment of a benefit, the increase of a benefit amount, the payment of a contingent benefit, the acceleration of a payment or the 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 hereby (either alone or in conjunction with any other event). None of the Company Plans or any other plan agreement or arrangement in effect immediately prior to the Closing could result separately or in the aggregate in connection with the transactions contemplated by this Agreement (either alone or in conjunction with any other event) in the payment of any “excess parachute payment” within the meaning of Section 280G of the Code.
(e) Each Company Benefit Plan that is a “nonqualified deferred compensation plan” within the meaning of (as defined under Section 409A(d)(1) of the Code Code) has complied been operated and administered in form and operation material compliance with the requirements of Section 409A of the Code. No current Any amounts paid or former employee, director or other payable pursuant to each Company Benefit Plan subject to Section 409A of the Code is not includible in the gross income of a service provider (within the meaning of Section 409A) until received by the service provider and is entitled not subject to any gross-upinterest or the additional tax imposed by Section 409A of the Code. The per share exercise price of each Company Option is not less than fair market value of a share of Common Stock on the date of grant of such Company Option determined in a manner consistent with Section 409A of the Code.
(j) There is no Contract, make-whole agreement, arrangement or other additional payment from policy to which the Company or any of its Subsidiaries in respect ERISA Affiliates is a party, or by which it is bound, to compensate any current or former employee of the Company or any Tax Company Subsidiary, or any other Person, for (including Federal, state, local or foreign income, excise i) Taxes or other Taxes (including Taxes imposed under penalties paid as a result of a violation of Section 409A and or Section 457A of the Code, or (ii) excise taxes paid pursuant to Section 4999 of the Code)) or interest or penalty related thereto.
Appears in 1 contract
Samples: Merger Agreement (Reis, Inc.)
Benefit Plans. (a) Section 3.11(a3.19(a) of the Company Disclosure Letter sets forth contains a true correct and complete list, as of the date hereof, list of each “employee benefit plan” (within the meaning of section 3(3) of the Employee Retirement Income Security Act of 1974 (“ERISA”))material Company Benefit Plan, “multiemployer plan” (within the meaning of ERISA section 3(37)) and all stock purchaseseparately identifies any material Company Benefit Plan which covers employees, stock option, phantom stock or other equity-based plan, severance, employment, collective bargaining, 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 or required in the future as a result of the transactions contemplated by this Agreement or otherwise), whether formal or informal, written or oral, legally binding or not, under which any current or former employee, director or consultant directors and/or independent contractors of the Company or any of its Subsidiaries outside of the United States, in each case other than at-will employee offer letters that are materially similar to the form provided to Parent.
(or any of their dependentsb) has any present or future right to compensation or benefits or the Company or its Subsidiaries has had or has any present or future liability or with respect to which it is otherwise bound (collectively, the “Company Plans”). With respect to each Company Benefit Plan, true, current and complete copies of each of the Company has following have been made available to Parent a true and complete copy thereof andParent, to the extent as applicable: (i) any related trust agreement or other funding instrumentthe plan document together with all amendments and material contracts relating thereto, (ii) the most recent determination letter summary plan description and summary of the Internal Revenue Service (the “IRS”), if applicablematerial modifications thereto, (iii) any summary plan description and other written communications (or a description in the case of any oral communications) by plan that is intended to be qualified under Code Section 401(a), the Company most recent determination, opinion, or its Subsidiaries to their employees concerning advisory letter from the extent of the benefits provided under a Company PlanIRS and any related correspondence, and (iv) in the case of any plan for which Forms 5500 are required to be filed, the Form 5500 (and all attachments and auditor’s reports thereto) for the two (2) most recent plan years, (v) copies of the non-discrimination testing results for the two (2) most recent years (A) the Form 5500 and attached schedulesplan years, (B) audited financial statements, (C) actuarial valuation reports and (Dvi) attorney’s response all material correspondence to an auditor’s request for information.
(b) No or from any Governmental Entity with respect to each Company Benefit Plan is subject to Title IV of ERISA or Section 412 of the Code, no Company Plan is a multiemployer plan (within the meaning of Section 3(37past three (3) of ERISA), and neither the Company nor any member of its Controlled Group (defined as any organization which is a member of a controlled group of organizations within the meaning of Code Sections 414(b), (c), (m) or (o)) has any liability (direct or contingent) with respect to, and has never incurred any liability (director or contingent) with respect to, any employee benefit plan subject to Title IV of ERISA. No Company Plan provides health or other welfare benefits to former employees of the Company or its Subsidiaries other than health continuation coverage pursuant to COBRAyears.
(c) With respect Except as has not been, and would not reasonably be expected to the Company Plans, except to the extent that the inaccuracy of any of the representations set forth in this paragraph (c)be, individually or in the aggregate, has not been and would not reasonably be expected to be material materially adverse to the Company and its Subsidiaries, taken as a whole:
, no Company Benefit Plan is or was within the past six (6) years, and neither the Company nor any of its Subsidiaries nor any of their ERISA Affiliates has or reasonably expects to have any Liability or obligation under (including current or potential withdrawal Liability): (i) any “multiemployer plan” (as that term is defined in Section 3(37) of ERISA); (ii) any employee plan which is a “defined benefit plan” (as that term is defined in Section 3(35) of ERISA), whether or not terminated, which is subject to Section 412 of the Code and/or Title IV of ERISA; (iii) a “multiple employer plan” as described in Section 413(c) of the Code; or (iv) a “multiple employer welfare arrangement” as described in Section 3(40) of ERISA.
(d) All amounts properly accrued as Liabilities to or expenses of any Company Benefit Plan have been properly reflected, in all material respects, in the most recent financial statements contained in the Company SEC Reports, to the extent required by GAAP. Since the date of such financial statements, there has been no amendment by the Company relating to any Company Benefit Plan which would materially increase the cost of such Company Benefit Plan.
(e) With respect to each Company Benefit Plan: (i) such Company Benefit Plan has been established and administered maintained in accordance with and in compliance, in all material respects, with its terms and in compliance with the all applicable provisions of applicable LawLaws, including ERISA and the Code; (ii) all material contributions, premiums and other similar payments to, and all contributions required payments from, such Company Benefit Plan with respect to be made under any period ending on or before the terms of any Company Plan Closing Date have been timely made;, except as would not result in any material Liability; and (iii) all required filings with any Governmental Entity have been made.
(iif) each Each Company Benefit Plan intended to be qualified qualify under Section 401(a) of the Code has received either have been determined by the Internal Revenue Service to be so qualified or is maintained pursuant to a favorable determination, advisory or opinion letter, as applicable, letter from the IRS that it is so qualified Internal Revenue Service, and nothing no event has occurred that and no condition exists with respect to the form or operation of such Company Benefit Plan which would reasonably be expected to cause the loss of such qualified status of such Company Plan;
(iii) there is no Action (including any investigationqualification or exemption, audit or other administrative proceeding) 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 the Company, threatened, relating to the Company Plans, any fiduciaries thereof with respect to their duties to the Company Plans or the assets of any of the trusts under any of the 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;
(iv) neither the Company nor its Subsidiaries nor any of their Affiliates except as has incurred any direct or indirect liability under ERISA or the Code in connection with the termination of, withdrawal from or failure to fund, any Company Plan or other retirement plan or arrangementnot been, and no fact or event exists that would not reasonably be expected to give rise be, individually or in the aggregate, materially adverse to any such liability; and
(v) the Company and its Subsidiaries do not maintain any Subsidiaries, taken as a whole.
(g) The Company, each Subsidiary and each ERISA Affiliate has complied in all material respects with (i) the notice and continuation coverage requirements, and all other requirements, of Section 4980B of the Code and Parts 6 and 7 of Title I of ERISA, and the regulations thereunder, and (ii) the affordability and minimum essential coverage requirements, and all other requirements, of the Patient Protection and Affordable Care Act of 2010, as amended, in each case, with respect to each Company Benefit Plan that is a “group health plan” .
(h) Except as such term is defined in set forth on Section 5000(b)(13.19(h) of the Code) that has not been administered and operated in all respects in compliance with Company Disclosure Letter, there are no Company Benefit Plans, Contracts or other obligations of the applicable requirements Company or any of its Subsidiaries which provides for health, life or other welfare benefits to past or present employees beyond their retirement or other termination of service, other than coverage mandated by the Consolidated Omnibus Budget Recommendation Act of 1985, Section 601 of ERISA and Section 4980B(b) 4980B of the Code, and Title I of ERISA or any similar state group health plan continuation Laws, the Company and its Subsidiaries are not subject to any liability, including additional contributions, fines, penalties cost of which is fully paid by such employees or loss of Tax deductions, as a result of such administration and operation; andtheir dependents.
(di) None Except as set forth on Section 3.19(i) of the Company Disclosure Letter, and excluding any Company Benefit Plans provides that provided for payment of a benefitonly statutory severance pay and other statutory termination entitlements, the increase of a benefit amount, the payment of a contingent benefit, the acceleration of a payment or the vesting of a benefit determined or occasioned, in whole or in part, by reason of the execution of this Agreement or and the consummation of the transactions contemplated hereby Transactions will not (either alone or in conjunction with any other event). None action by the Company or any of its Subsidiaries prior to the Closing): (i) entitle any past or present employee, director and/or independent contractor of the Company Plans or any other plan agreement of its Subsidiaries to any bonuses, severance pay, transaction related payments or arrangement any similar payments in effect immediately prior to excess of $150,000; (ii) accelerate the Closing could result separately or in the aggregate in connection with the transactions contemplated by this Agreement (either alone or in conjunction with any other event) in time of the payment or vesting of, or increase the amount of, any compensation and/or benefits due to any past or present employee, director and/or independent contractor of the Company or any of its Subsidiaries; or (iii) be the direct or indirect cause of any amount paid or payable by the Company or any of its Subsidiaries being classified as an “excess parachute payment” within the meaning of under Section 280G of the Code.
(ej) Each Neither the Company nor any of its Subsidiaries has any obligation (whether pursuant to a Company Benefit Plan that is a or otherwise) to indemnify, “nonqualified deferred compensation plangross-up”, reimburse or otherwise compensate any individual with respect to the additional Taxes or interest imposed pursuant to Sections 409A or 4999 of the Code.
(k) Neither the Company nor any of its Subsidiaries nor any Company Benefit Plan nor, to the Knowledge 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-exempt prohibited transaction (within the meaning of Section 409A(d)(1) 4975 of the Code or Section 406 of ERISA) which, individually or in the aggregate, has complied resulted or could reasonably be expected to result in form and operation with the requirements of Section 409A of the Code. No current or former employee, director or other service provider is entitled any material liability to any gross-up, make-whole or other additional payment from the Company or any of its Subsidiaries Subsidiaries.
(l) Except as has not been, and would not reasonably be expected to be, individually or in respect of any Tax the aggregate, materially adverse to the Company and its Subsidiaries, taken as a whole, there are no Legal Actions (including Federalother than routine claims for benefits) pending or, state, local or foreign income, excise or other Taxes (including Taxes imposed under Section 409A and 4999 to the Knowledge of the Code)) Company, threatened against or interest or penalty related theretorelating to any of the Company Benefits Plans and, to the Knowledge of the Company, no facts exist which could give rise to any such Legal Actions.
Appears in 1 contract
Benefit Plans. (a) Section 3.11(a4.13(a)(i) of the Company Disclosure Letter sets forth lists all Benefit Plans, in each case, to which the Company, Company LP, any Company Subsidiary or any of their ERISA Affiliates is a true and complete listparty, as with respect to which the Company, Company LP, any Company Subsidiary or any of the date hereof, of each “employee benefit plan” their ERISA Affiliates has or could have any current or future obligation or liability (within the meaning of section 3(3) of the Employee Retirement Income Security Act of 1974 (“ERISA”)), “multiemployer plan” (within the meaning of ERISA section 3(37)) and all stock purchase, stock option, phantom stock or other equity-based plan, severance, employment, collective bargaining, 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 or required in the future as a result of the transactions contemplated by this Agreement contingent or otherwise), whether formal or informal, written or oral, legally binding or not, under which any of the current or former employeeemployees, director officers, directors or consultant independent contractors of the Company, Company LP, any Company Subsidiary or its Subsidiaries any of their ERISA Affiliates (or any of their dependentsdependents thereof) has any present or future right to compensation or benefits (all such plans, programs, arrangements, contracts or the Company or its Subsidiaries has had or has any present or future liability or with respect to which it is otherwise bound (agreements, collectively, the “Company Plans”). With respect to each Company Plan, the The Company has made available to Parent a true and complete copy thereof andParent, to the extent applicable, copies, which are correct and complete in all material respects, of the following: (i) the Plans to the extent in written form (or to the extent not in written form, an accurate written description of all of the material terms of such Plan), (ii) the annual reports (Form 5500s) filed with the IRS for the last three plan years, (iii) the most recently received IRS determination letter or opinion letter, if any, relating to a Plan, (iv) the most recently prepared actuarial report or financial statement, if any, relating to a Plan, (v) the most recent summary plan description for such Plan and all modifications thereto, (vi) any related trust agreement or other funding instrument, and (iivii) all material correspondence with the most recent determination letter Department of Labor, the IRS or any other governmental entity with respect to any Plan for the last three plan years. Except as set forth in Section 4.13(a)(ii) of the Internal Revenue Service (the “IRS”)Company Disclosure Letter, if applicable, (iii) any summary plan description and other written communications (or a description of any oral communications) by the Company sponsors no employee benefits plans for non-U.S. employees. Except as specifically provided in the foregoing documents delivered or its Subsidiaries made available to their employees concerning the extent Parent, there are no amendments to any Plan that have been adopted or approved, nor has the Company, Company LP or any Company Subsidiary undertaken to make any such amendments or to adopt or approve any new Plan and none of the benefits provided under a Company, Company PlanLP, and (iv) for the two most recent years (A) the Form 5500 and attached schedulesany Company Subsidiary or any of their ERISA Affiliates has any commitment to establish any new benefit plan, (B) audited financial statements, (C) actuarial valuation reports and (D) attorney’s response to an auditor’s request for informationprogram or arrangement.
(b) No Company Each Plan is subject to Title IV has been established, funded and operated in all material respects in accordance with its terms and the requirements of all applicable Laws, including ERISA or Section 412 of and the Code, no Company Plan is a multiemployer plan (within the meaning of Section 3(37) of ERISA), and neither the Company nor any member of its Controlled Group (defined . Except as any organization which is a member of a controlled group of organizations within the meaning of Code Sections 414(b), (c), (m) or (o)) has any liability (direct or contingent) with respect to, and has never incurred any liability (director or contingent) with respect to, any employee benefit plan subject to Title IV of ERISA. No Company Plan provides health or other welfare benefits to former employees of the Company or its Subsidiaries other than health continuation coverage pursuant to COBRA.
(c) With respect to the Company Plans, except to the extent that the inaccuracy of any of the representations set forth in this paragraph (c), individually or in the aggregate, has not been and would not reasonably be expected to be result in a material liability to the Company, Company and its SubsidiariesLP or any Company Subsidiary, taken no non-exempt “prohibited transaction,” within the meaning of Section 4975 of the Code or Section 406 of ERISA, has occurred with respect to any Plan. Each Plan that is in any part a “nonqualified deferred compensation plan” (as a whole:
(idefined in Section 409A(d)(1) each Company Plan of the Code) has been established operated and administered in accordance with its terms and maintained since January 1, 2005 in compliance with Section 409A of the applicable provisions of applicable Law, including ERISA Code and the Code, regulations and all contributions required to be made under the terms of any Company Plan have been timely made;
(ii) each Company Plan intended to be qualified under other administrative guidance promulgated thereunder. Except as set forth on Section 401(a4.13(b) of the Code has received a favorable determinationCompany Disclosure Letter, advisory no individual is entitled to any gross-up, make-whole or opinion letter, as applicable, other additional payment from the IRS that it is so qualified and nothing has occurred that would reasonably be expected to cause Company, Company LP or any Company Subsidiary in respect of any tax (including Federal, state, local or foreign income, excise or other taxes (including taxes imposed under Section 409A or Section 4999 of the loss of such qualified status of such Company Plan;
(iiiCode)) there is no or interest or penalty related thereto. No Action (including any investigation, audit or other administrative proceeding) by the Department of Laboris pending or, 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 the Company, threatenedthreatened or anticipated, relating to the Company Plans, any fiduciaries thereof with respect to their duties to the Company Plans or the assets of any of the trusts under any of the Company Plans Plan (other than routine claims for benefitsbenefits in the ordinary course) nor are there facts or circumstances that exist that could reasonably give rise to any such Actions;actions.
(ivc) neither the Company nor its Subsidiaries nor any Each Plan that is intended to be qualified under Section 401(a) of their Affiliates has incurred any direct or indirect liability under ERISA or the Code in connection with has received a favorable determination letter from the termination ofIRS that the Company, withdrawal from Company LP and each Company Subsidiary is currently entitled to rely upon, or failure is entitled to fund, any Company Plan or other retirement plan or arrangementrely on a favorable opinion issued by the IRS, and except as would not reasonably be expected to have a Company Material Adverse Effect, no fact or event exists has occurred since the date of such determination letter or letters from the IRS that would reasonably be expected to give rise to adversely affect the qualified status of any such liability; and
(v) the Company and its Subsidiaries do not maintain any Company Plan that is a “group health plan” (as such term is defined in Section 5000(b)(1) of the Code) that has not been administered and operated in all respects in compliance with the applicable requirements of Section 601 of ERISA and Section 4980B(b) of the Code, and the Company and its Subsidiaries are not subject to any liability, including additional contributions, fines, penalties or loss of Tax deductions, as a result of such administration and operation; andPlan.
(d) None of the Company Plans nor any ERISA Affiliate, has ever sponsored, maintained or had any obligation with respect to any employee benefit plan that (i) is subject to the provisions of Section 302 or Title IV of ERISA or Section 412 of the Code, (ii) is an employee stock ownership plan within the meaning of Section 4975(e)(7) of the Code, (iii) is a voluntary employee beneficiary association, (iv) is a multiemployer plan within the meaning of Section 3(37) of ERISA, (v) is a multiple employer plan as defined in Section 413 of the Code, or (vi) is a “funded welfare plan” within the meaning of Section 419 of the Code. None of the Company nor any ERISA Affiliate has ever incurred or reasonably expects to incur any material liability pursuant to Title I or Title IV of ERISA (including any Controlled Group Liability) or any foreign Law or regulation relating to employee benefit plans, whether contingent or otherwise. Except as set forth on Section 4.13(d) of the Company Disclosure Letter, neither the Company nor any Company Subsidiary has any obligation with respect to any employee benefit plan that provides for payment of a benefitany post-employment or post-retirement health or medical or life insurance benefits for retired, the increase of a benefit amount, the payment of a contingent benefit, the acceleration of a payment former or the vesting of a benefit determined or occasioned, in whole or in part, by reason current employees of the Company, Company LP or any Company Subsidiary, except as required by Section 4980B of the Code or similar state Law.
(e) Except as set forth in Section 4.13(e)(i) of the Company Disclosure Letter or as otherwise specifically contemplated by this Agreement with respect to the Company Equity Awards, neither the execution or delivery of this Agreement or nor the consummation of the Mergers and the transactions contemplated hereby will (either alone or in conjunction with any other eventevent (whether contingent or otherwise). None ) result in or cause the vesting, exercisability, funding, acceleration of payment or delivery of, or increase in the amount or value of, any payment, right or other benefit otherwise due to any current or former employee, officer, director or other service provider of the Company Plans or any other plan agreement ERISA Affiliate. Except as set forth in Section 4.13(e)(ii) of the Company Disclosure Letter, neither the execution or arrangement in effect immediately prior to delivery of this Agreement nor the Closing could result separately or in consummation of the aggregate in connection with Mergers and the transactions contemplated by this Agreement hereby will (either alone or in conjunction with any other eventevent (whether contingent or otherwise)) (x) entitle any current or former employee, officer, director or service provider of Company or any ERISA Affiliate to severance pay, unemployment compensation or any other similar termination payment, or (y) result in any amount failing to be deductible by reason of Section 280G of the payment Code. Except as set forth in Section 4.13(e)(iii) of the Company Disclosure Letter, neither the Company nor any “ERISA Affiliate has any indemnity obligation on or after the Effective Time for any Taxes imposed under Section 4999 or 409A of the Code. The Company has provided Parent with reasonable estimates of the potential excess parachute payment” payments (within the meaning of Section 280G of the Code), if any, paid or payable by the Company, Company LP or any Company Subsidiary in connection with the transactions contemplated by this Agreement, either as a result of the transactions contemplated by this Agreement or in conjunction with any other event.
(ef) Each Company Plan With respect to each Plan, all contributions (including all employer contributions and employee salary reduction contributions) that is a “nonqualified deferred compensation plan” are due have been made within the meaning time periods prescribed by ERISA and the Code and applicable Law, and all contributions for any period ending on or before the Closing Date that are not yet due have been made or properly accrued in accordance with GAAP.
(g) Any individual who performs services for the Company, Company LP or any Company Subsidiary and who is not treated as an employee for federal income tax purposes by the Company or the Company Subsidiaries is not an employee under applicable Law for any purpose including, without limitation, for tax withholding purposes or Plan purposes. Each of the Company, Company LP and each Company Subsidiary has no material liability by reason of an individual who performs or performed services for the Company, Company LP or any Company Subsidiary in any capacity being improperly excluded from participating in any Plan or any person being improperly allowed to participate in any Plan.
(h) For purposes of this Section 4.13(h), “Controlled Group Liability” means any and all liabilities (i) under Title IV of ERISA, (ii) under Section 302 of ERISA, (iii) under Sections 412 and 4971 of the Code, (iv) resulting from a violation of the continuation coverage requirements of Section 409A(d)(1) 601 et seq. of ERISA and Section 4980B of the Code has complied in form and operation with or the group health plan requirements of Section 409A Sections 601 et seq. of the CodeCode and Section 601 et seq. No current of ERISA, and (v) under corresponding or former employee, director similar provisions of foreign Laws or other service provider is entitled to any gross-up, make-whole or other additional payment from the Company or any of its Subsidiaries in respect of any Tax (including Federal, state, local or foreign income, excise or other Taxes (including Taxes imposed under Section 409A and 4999 of the Code)) or interest or penalty related theretoregulations.
Appears in 1 contract
Benefit Plans. (aSchedule 5.17(a) Section 3.11(a) of the Company Disclosure Letter sets forth a true an accurate, correct and complete list, list and summary description of all "WELFARE BENEFIT PLANS" (as of the date hereof, of each “employee benefit plan” (within the meaning of section 3(3defined in Section 3(2) of the Employee Retirement Income Security Act of 1974 1974, as amended (“"ERISA”")), “multiemployer plan” "EMPLOYEE PENSION BENEFIT PLANS" (within the meaning of ERISA section 3(37)) and all stock purchase, stock option, phantom stock or other equity-based plan, severance, employment, collective bargaining, 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 as defined in effect or required in the future as a result of the transactions contemplated by this Agreement or otherwise), whether formal or informal, written or oral, legally binding or not, under which any current or former employee, director or consultant of the Company or its Subsidiaries (or any of their dependents) has any present or future right to compensation or benefits or the Company or its Subsidiaries has had or has any present or future liability or with respect to which it is otherwise bound (collectively, the “Company Plans”). With respect to each Company Plan, the Company has made available to Parent a true and complete copy thereof and, to the extent applicable: (i) any related trust agreement or other funding instrument, (ii) the most recent determination letter of the Internal Revenue Service (the “IRS”), if applicable, (iii) any summary plan description and other written communications (or a description of any oral communications) by the Company or its Subsidiaries to their employees concerning the extent of the benefits provided under a Company Plan, and (iv) for the two most recent years (A) the Form 5500 and attached schedules, (B) audited financial statements, (C) actuarial valuation reports and (D) attorney’s response to an auditor’s request for information.
(b) No Company Plan is subject to Title IV of ERISA or Section 412 of the Code, no Company Plan is a multiemployer plan (within the meaning of Section 3(373(2) of ERISA), bonus, profit sharing, deferred compensation, incentive or other compensation plans or arrangements, and neither other employee fringe benefit plans, whether funded or unfunded, qualified or unqualified (all the foregoing being herein called "BENEFIT PLANS") maintained or contributed to by the Company nor or any member of its Controlled Group (defined as subsidiary or any other organization which is a member of a controlled group of organizations (within the meaning of Code Sections 414(b), (c), (m) or (o)) has any liability (direct or contingent) with respect to, and has never incurred any liability (director or contingent) with respect to, any employee benefit plan subject to Title IV of ERISA. No Company Plan provides health or other welfare benefits to former employees of the Company or its Subsidiaries other than health continuation coverage pursuant to COBRA.
(c) With respect to the Company Plans, except to the extent that the inaccuracy of any of the representations set forth in this paragraph (c), individually or in the aggregate, has not been and would not reasonably be expected to be material to the Company and its Subsidiaries, taken as a whole:
(i) each Company Plan has been established and administered in accordance with its terms and in compliance with the applicable provisions of applicable Law, including ERISA and the Code, and all contributions required to be made under the terms of any Company Plan have been timely made;
(ii) each Company Plan intended to be qualified under Section 401(a) of the Code has received a favorable determination, advisory or opinion letter, as applicable, from the IRS that it is so qualified and nothing has occurred that would reasonably be expected to cause the loss of such qualified status of such Company Plan;
(iii) there is no Action (including any investigation, audit or other administrative proceeding) 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 the Company, threatened, relating to the Company Plans, any fiduciaries thereof with respect to their duties to the Company Plans or the assets of any of the trusts under any of the 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;
(iv) neither the Company nor its Subsidiaries nor any of their Affiliates has incurred any direct or indirect liability under ERISA or the Code in connection with the termination of, withdrawal from or failure to fund, any Company Plan or other retirement plan or arrangement, and no fact or event exists that would reasonably be expected to give rise to any such liability; and
(v) the Company and its Subsidiaries do not maintain any Company Plan that is a “group health plan” (as such term is defined in Section 5000(b)(1) of the Code) that for the benefit of any of its officers, employees or other persons. The Company has not been administered delivered to Buyer accurate, correct and operated complete copies of (i) each Benefit Plan (or, in all respects in compliance the case of any unwritten Benefit Plans, descriptions thereof), (ii) the most recent annual report on Form 5500 and attached Schedule B (including any related actuarial valuation report), if any, filed with the applicable requirements of Section 601 of ERISA and Section 4980B(b) of the Code, and the Company and its Subsidiaries are not subject Internal Revenue Service with respect to any liabilityBenefit Plan, including additional contributions(if any such report was required), fines(iii) each trust agreement and group annuity contract relating to any Benefit Plan, penalties or loss of Tax deductions, as a result of such administration (iv) certified financial statements and operation; and
(d) None actuarial reports in the possession of the Company Plans provides and/or its agents and representatives or which information is otherwise known by the Company to exist, (v) attorney's response to an auditor's request for payment of a benefit, information in the increase of a benefit amount, the payment of a contingent benefit, the acceleration of a payment or the 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 hereby (either alone or in conjunction with any other event). None possession of the Company Plans and/or its agents and representatives or which information is otherwise known by the Company to exist, (vi) collective bargaining agreements or other such contracts, (vii) each ruling letter in the possession of the Company and/or its agents and representatives or which information is otherwise known by the Company to exist or any other plan agreement or arrangement in effect immediately prior outstanding ruling request by the Company on the tax exempt status of any voluntary employees' beneficiary association ("VEBA") implementing a Benefit Plan, (viii) each general notification to employees of their rights under Section 4980B of the Closing could result separately or in the aggregate in connection with the transactions contemplated by this Agreement (either alone or in conjunction with Code and any other eventsuch correspondence indicating compliance with said Section 4980B, and (x) in the payment of all documents evidencing loans to any “excess parachute payment” within the meaning of Section 280G of the Code.
(e) Each Company Benefit Plan that is a “nonqualified deferred compensation an employee stock ownership plan” within the meaning of Section 409A(d)(1) of the Code has complied in form and operation with the requirements of Section 409A of the Code. No current or former employee, director or other service provider is entitled to any gross-up, make-whole or other additional payment from the Company or any of its Subsidiaries in respect of any Tax (including Federal, state, local or foreign income, excise or other Taxes (including Taxes imposed under Section 409A and 4999 of the Code)) or interest or penalty related thereto.
Appears in 1 contract
Samples: Stock Purchase Agreement (Diamond Home Services Inc)
Benefit Plans. (a) Section 3.11(a) of the Company Disclosure Letter sets forth a true and complete listlist of each material Company Plan. For purposes of this Agreement, as of the date hereof, of “Company Plan” means each “employee benefit plan” (within the meaning of section 3(3) of the Employee Retirement Income Security Act of 1974 1974, as amended (“ERISA”)” ), “multiemployer whether or not subject to ERISA), and each other employee benefit or compensation plan” (within the meaning of ERISA section 3(37)) and all , program, policy, agreement or arrangement, including any stock purchase, stock option, restricted stock, restricted stock unit, phantom stock or other equity-based planstock, severance, employment, collective bargainingoffer letter, change-in-control, transaction, retention, welfare, health, dental, vision, retirement, profit-sharing, fringe benefit, bonus, commission, incentive, deferred compensation compensation, holiday, paid time off and all other employee benefit and compensation planssimilar plan, agreementsagreement, programsprogram, policies policy or other arrangements, whether or not subject to ERISA arrangement (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), whether formal or informal, written or oralwritten, legally binding or not, in each case (i) which is sponsored, maintained or contributed to by the Company or any of its Subsidiaries, (ii) under which any current employee or former employee, director or consultant employee of the Company or its Subsidiaries (or any of their dependents) has any present or future right to compensation benefits, or benefits or (iii) with respect to which the Company or its Subsidiaries has had or has any present or future liability or with respect to which it is otherwise bound (collectivelyliability, the “Company Plans”)including any contingent liability. With respect to each material Company Plan, the Company has furnished or made available to Parent a true current, accurate and complete copy thereof and, to the extent applicable: (i) the plan document (or, in the cases of any unwritten Company Plan, a written description thereof), and any amendments thereto; (ii) any related trust agreement agreement, insurance contract or policy or other funding instrument, ; (iiiii) the most recent determination determination, advisory or opinion letter of from the Internal Revenue Service (the “IRS”), if applicable, ; (iiiiv) any summary plan description or summary of material modifications thereto, and other equivalent written communications (or a description of any oral communications) by the Company or its Subsidiaries to their employees concerning the extent of the benefits provided under a Company Plan; (v) if applicable, and (iv) for the two most recent years (A) recently-completed plan year, the Form 5500 5500s and attached schedules, (B) audited schedules and financial statements, (C) actuarial valuation reports and (D) attorney’s response to an auditor’s request for information.
(b) No Company Plan is subject to Title IV of ERISA or Section 412 of the Code, no Company Plan is a multiemployer plan (within the meaning of Section 3(37) of ERISA), and neither the Company nor any member of its Controlled Group (defined as any organization which is a member of a controlled group of organizations within the meaning of Code Sections 414(b), (c), (m) or (o)) has any liability (direct or contingent) with respect to, and has never incurred any liability (director or contingent) with respect to, any employee benefit plan subject to Title IV of ERISA. No Company Plan provides health or other welfare benefits to former employees of the Company or its Subsidiaries other than health continuation coverage pursuant to COBRA.
(c) With respect to the Company Plans, except to the extent that the inaccuracy of any of the representations set forth in this paragraph (c), individually or in the aggregate, has not been and would not reasonably be expected to be material to the Company and its Subsidiaries, taken as a whole:
(i) each Company Plan has been established and administered in accordance with its terms and in compliance with the applicable provisions of applicable Law, including ERISA and the Code, and all contributions required to be made under the terms of any Company Plan have been timely made;
(ii) each Company Plan intended to be qualified under Section 401(a) of the Code has received a favorable determination, advisory or opinion letter, as applicable, from the IRS that it is so qualified and nothing has occurred that would reasonably be expected to cause the loss of such qualified status of such Company Plan;
(iii) there is no Action statements (including any investigationrelated actuarial valuation report); and (vi) any material notices, audit letters or other administrative proceeding) by non-routine correspondence with the Internal Revenue Service, the Department of Labor, the Pension Benefit Guaranty Corporation, the IRS Corporation or any other Governmental Entity or by any plan participant or beneficiary pending, or to the Knowledge of the Company, threatened, relating to the Company Plans, any fiduciaries thereof with respect to their duties to the Company Plans or the assets of any of the trusts under any of the 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;
(iv) neither the Company nor its Subsidiaries nor any of their Affiliates has incurred any direct or indirect liability under ERISA or the Code in connection with the termination of, withdrawal from or failure to fund, any Company Plan or other retirement plan or arrangement, and no fact or event exists that would reasonably be expected to give rise to any such liability; and
(v) the Company and its Subsidiaries do not maintain any Company Plan that is a “group health plan” (as such term is defined in Section 5000(b)(1) of the Code) that has not been administered and operated in all respects in compliance with the applicable requirements of Section 601 of ERISA and Section 4980B(b) of the Code, and the Company and its Subsidiaries are not subject to any liability, including additional contributions, fines, penalties or loss of Tax deductions, as a result of such administration and operation; and
(d) None of the Company Plans provides for payment of a benefit, the increase of a benefit amount, the payment of a contingent benefit, the acceleration of a payment or the 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 hereby (either alone or in conjunction with any other event). None of the Company Plans or any other plan agreement or arrangement in effect immediately prior to the Closing could result separately or in the aggregate in connection with the transactions contemplated by this Agreement (either alone or in conjunction with any other event) in the payment of any “excess parachute payment” within the meaning of Section 280G of the CodeEntity.
(e) Each Company Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A(d)(1) of the Code has complied in form and operation with the requirements of Section 409A of the Code. No current or former employee, director or other service provider is entitled to any gross-up, make-whole or other additional payment from the Company or any of its Subsidiaries in respect of any Tax (including Federal, state, local or foreign income, excise or other Taxes (including Taxes imposed under Section 409A and 4999 of the Code)) or interest or penalty related thereto.
Appears in 1 contract
Benefit Plans. (a) Section 3.11(a2.12(a) of the Company Seller Disclosure Letter sets forth contains a true and complete list, as of the date hereof, list of each “employee benefit plan” Benefit Plan.
(within the meaning of section 3(3b) of the Employee Retirement Income Security Act of 1974 (“ERISA”)), “multiemployer plan” (within the meaning of ERISA section 3(37)) and all stock purchase, stock option, phantom stock or other equity-based plan, severance, employment, collective bargaining, 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 or required in the future as a result of the transactions contemplated by this Agreement or otherwise), whether formal or informal, written or oral, legally binding or not, under which any current or former employee, director or consultant of the Company or its Subsidiaries (or any of their dependents) has any present or future right to compensation or benefits or the Company or its Subsidiaries has had or has any present or future liability or with respect to which it is otherwise bound (collectively, the “Company Plans”). With respect to each Company Benefit Plan, the Company has made available to Parent Buyer a true and complete current copy, including any amendments thereto (or, to the extent no such copy exists, a description of key terms) thereof and, to the extent applicable: (i) any related trust agreement agreement, insurance contract or other funding instrument, arrangements currently in effect; (ii) the most recent IRS determination letter of the Internal Revenue Service (the “IRS”)letter, if applicable, or similar documentation for non-U.S. jurisdictions; (iii) any the most recent summary plan description and other written communications (or a description of any oral communications) by the Company or its Subsidiaries to their employees concerning the extent of the benefits provided under a Company Plan, and description; (iv) for the two most recent years plan year (A) the most recent actuarial report and annual report on Form 5500 and attached schedules, or similar documentation for non-U.S. jurisdictions and (B) audited financial statements, (C) actuarial valuation reports ; and (Dv) attorney’s response to an auditor’s request for information.
(b) No Company Plan is subject to Title IV all material non-routine communications with the IRS, Department of ERISA or Section 412 of the Code, no Company Plan is a multiemployer plan (within the meaning of Section 3(37) of ERISA), and neither the Company nor any member of its Controlled Group (defined as any organization which is a member of a controlled group of organizations within the meaning of Code Sections 414(b), (c), (m) or (o)) has any liability (direct or contingent) with respect to, and has never incurred any liability (director or contingent) with respect to, any employee benefit plan subject to Title IV of ERISA. No Company Plan provides health Labor or other welfare benefits to former employees of the Company or its Subsidiaries other than health continuation coverage pursuant to COBRAGovernmental Authority.
(c) With respect to Neither the Company Plansnor any of its Subsidiaries nor any of their respective ERISA Affiliates contributes to or is obligated to contribute to, or within the past six (6) years contributed to or was obligated to contribute to, nor has any Liability under, any “multiemployer plan” as defined in Section 3(37) of ERISA (a “Multiemployer Plan”). Neither the Company nor any of its Subsidiaries contributes to or is required to contribute to a “multiple employer plan” within the meaning of section 4063 or 4064 of ERISA.
(d) (i) Each Benefit Plan has been established, operated, maintained, funded and administered in accordance with its terms, and in compliance with the applicable provisions of ERISA, the Code and other applicable Laws, except to the extent that the inaccuracy of any of the representations set forth in this paragraph (c)as would not, individually or in the aggregate, has not been and would not reasonably be expected to be material to the Company and its Subsidiaries, taken as a whole:
; (iii) all contributions and premiums required to have been paid by the Company or any of its Subsidiaries to or by the terms of any Benefit Plan or its related trust, insurance contract or other funding arrangement, or pursuant to any applicable Law have been paid in all material respects within the time prescribed by any such Benefit Plan or applicable Law; (iii) each Company Benefit Plan has been established that is intended to be qualified within the meaning of Code Section 401(a) is so qualified; and administered (iv) all amendments and actions required to bring each Benefit Plan into conformity in accordance all material respects with its terms and in compliance with the applicable provisions of all applicable LawLaws, including ERISA and the Code, and all contributions required to be made under the terms of any Company Plan have been timely made;made or taken.
(iie) each Neither the Company Plan intended nor any of its Subsidiaries has any obligation or commitment to be qualified “gross up” or otherwise compensate, indemnify or reimburse any Person with respect to Taxes under Section 401(a) 409A or 4999 of the Code or any similar provision under applicable local Law.
(f) None of the Benefit Plans are subject to Title IV of ERISA and neither the Company nor any of its Subsidiaries has received a favorable determinationin the past six (6) years sponsored, advisory maintained or opinion lettercontributed to, as applicable, from any pension plan subject to Title IV of ERISA. Neither the IRS that it is so qualified and nothing Company nor any of its Subsidiaries has occurred that incurred or would reasonably be expected to cause incur, including on account of an ERISA Affiliate, Liability to the loss Pension Benefit Guarantee Corporation or otherwise under Title IV of such qualified status of such Company Plan;
(iii) there is no Action ERISA (including any investigation, audit or other administrative proceedingwithdrawal Liability).
(g) 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 None of the Company, threatened, relating Benefit Plans provide benefits to employees located outside the Company Plans, any fiduciaries thereof with United States.
(h) With respect to their duties to the Company Plans or the assets of any of the trusts under any of the Company Plans Benefit Plan, no Actions (other than routine claims for benefitsbenefits in the ordinary course) nor are there facts pending or, to the knowledge of the Company, threatened in writing, except, in each case, as would not, individually or circumstances that exist that could in the aggregate, reasonably give rise result in material Liability to any such Actions;
(iv) neither the Company nor and its Subsidiaries nor any of their Affiliates has incurred any direct or indirect liability under ERISA or the Code in connection with the termination ofSubsidiaries, withdrawal from or failure to fund, any Company Plan or other retirement plan or arrangementtaken as a whole, and to the knowledge of the Company, no fact or event exists circumstances exist that would reasonably be expected to give rise to any such liability; andAction.
(vi) Neither the Company and nor any of its Subsidiaries do not maintain has any Company Plan that is a “group health plan” (as such term is defined Liability in Section 5000(b)(1) respect of the Code) that has not been administered and operated in all respects in compliance with the applicable requirements of Section 601 of ERISA and Section 4980B(b) of the Codepost-retirement health, and the Company and its Subsidiaries are not subject to any liabilitymedical or life insurance benefits for retired, including additional contributions, fines, penalties former or loss of Tax deductions, as a result of such administration and operation; and
(d) None current employees of the Company Plans provides for payment or any of a benefit, its Subsidiaries except as required to avoid the increase of a benefit amount, the payment of a contingent benefit, the acceleration of a payment or the vesting of a benefit determined or occasioned, in whole or in part, by reason excise tax under Section 4980B of the execution of this Agreement Code or the consummation of the transactions contemplated hereby (either alone or in conjunction with any other event). None of the Company Plans or any other plan agreement or arrangement in effect immediately prior to the Closing could result separately or in the aggregate in connection with the transactions contemplated by this Agreement (either alone or in conjunction with any other event) in the payment of any “excess parachute payment” within the meaning of Section 280G of the Codeapplicable Law.
(ej) Each Company Benefit Plan that is a “nonqualified deferred compensation plan” within the meaning of as defined in Section 409A(d)(1) of the Code and that is subject to (and not exempt from) the requirements of Section 409A(a)(2) of the Code, has complied been maintained in form and operation good faith material compliance in all material respects with the requirements of Section 409A 409A(a)(2) of the Code. No Code and all applicable IRS and U.S. Treasury Department guidance issued thereunder in both operation and documentation.
(k) Except as set forth in Section 2.12(k) of the Seller Disclosure Letter, none of the execution, delivery or performance of this Agreement or the transactions contemplated by this Agreement (whether alone or in conjunction with any other event, including any termination of employment on or following the date hereof) (i) entitles any current or former employee, officer, director or other service provider is entitled to any gross-up, make-whole or other additional payment from independent contractor of the Company or any of its Subsidiaries in respect to any transaction or retention bonuses, severance pay, unemployment compensation or any other payment or benefit, (ii) accelerates the time of payment or vesting, enhances or increases the amount or type of compensation or benefits due or that may become due to any such individual or require any contributions or payments to fund any obligations under any Benefit Plan, (iii) requires any contributions or payments to fund any obligations under any Benefit Plan, or causes the Company or any of its Subsidiaries to transfer or set aside any assets to fund any Benefit Plan, (iv) limits or restricts the right to amend, terminate or transfer the assets of any Tax Benefit Plan, (including Federal, state, local v) results in any forgiveness of indebtedness under any Benefit Plan or foreign income, excise (vi) causes any payment or other Taxes (including Taxes imposed under benefit to fail to be deductible for federal income tax purposes by virtue of Section 409A and 4999 280G of the Code)) ; provided that the foregoing shall not apply to any new arrangements entered into by or interest or penalty related theretoat the direction of Buyer.
Appears in 1 contract
Samples: Stock Purchase Agreement (America Movil Sab De Cv/)
Benefit Plans. (a) Section 3.11(a3.15(a) of the Company Disclosure Letter sets forth Schedule contains a true correct and complete list, as of the date hereof, list of each “employee benefit plan” material Benefit Plan, excluding any offer letters and employment agreements with employees or other individual service providers that (within i) follow in all material respects the meaning of section 3(3Company’s form(s) of offer letter and employment agreement made available to Buyer and (ii) are terminable “at will” or for convenience without provision of any notice and without the Employee Retirement Income Security Act payment of 1974 (“ERISA”))severance, “multiemployer plan” (within the meaning of ERISA section 3(37)) and all stock purchase, stock option, phantom stock notice pay or other equity-based plan, severance, employment, collective bargaining, change-in-control, fringe benefit, bonus, incentive, deferred compensation and all termination liabilities or obligations (other employee benefit and compensation plans, agreements, programs, policies or other arrangements, whether or not subject to ERISA than as required by applicable Legal Requirements).
(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), whether formal or informal, written or oral, legally binding or not, under which any current or former employee, director or consultant of the Company or its Subsidiaries (or any of their dependentsb) has any present or future right to compensation or benefits or the Company or its Subsidiaries has had or has any present or future liability or with respect to which it is otherwise bound (collectively, the “Company Plans”). With respect to each Company Plan, the The Company has made available to Parent a true and complete copy thereof Buyer copies of each material Benefit Plan and, to the extent where applicable: , (i) any related associated trust agreement or other funding instrumentagreements, (ii) the most recent determination letter of the Internal Revenue Service (the “IRS”)annual report filed with any Governmental Authority and summary plan descriptions, if applicableany, (iii) any summary plan description and other written communications (the most recently received IRS determination or a description of any oral communications) by the Company opinion or its Subsidiaries to their employees concerning the extent of the benefits provided under a Company Plan, advisory letter and (iv) for any material non-routine correspondence with a Governmental Authority in the two most recent years (A) the Form 5500 and attached schedules, (B) audited financial statements, (C) actuarial valuation reports and (D) attorney’s response to an auditor’s request for information.
(b) No Company Plan is subject to Title IV of ERISA or Section 412 of the Code, no Company Plan is a multiemployer plan (within the meaning of Section 3(37) of ERISA), and neither the Company nor any member of its Controlled Group (defined as any organization which is a member of a controlled group of organizations within the meaning of Code Sections 414(b), (c), (m) or (o)) has any liability (direct or contingent) with respect to, and has never incurred any liability (director or contingent) with respect to, any employee benefit plan subject to Title IV of ERISA. No Company Plan provides health or other welfare benefits to former employees of the Company or its Subsidiaries other than health continuation coverage pursuant to COBRApast year.
(c) With respect to Each Benefit Plan (and each related trust, insurance Contract or fund) is and has for the Company Planspast six (6) years been established, except to the extent that the inaccuracy of any of the representations set forth in this paragraph (c)funded, individually or in the aggregate, has not been maintained and would not reasonably be expected to be material to the Company and its Subsidiaries, taken as a whole:
(i) each Company Plan has been established and administered in accordance with its terms and operated in compliance with the terms of such Benefit Plan, in all material respects, and applicable provisions of applicable LawLegal Requirements, including including, but not limited to, ERISA and the Code, and in all contributions required to be made under the terms of any Company material respects. Each Benefit Plan have been timely made;
(ii) each Company Plan which is intended to be qualified qualify under Section 401(a) of the Code has received a favorable determination, advisory or opinion letter, as applicable, determination letter from the IRS that it as to its qualification or, is so qualified and entitled to rely on an opinion or advisory letter issued to a prototype or volume submitter plan sponsor and, to the Company’s Knowledge, nothing has occurred that would reasonably be expected to cause the loss of could adversely affect such qualified status of such Company Plan;
(iii) there qualification. There is no Action (including any investigationmaterial pending or, audit or other administrative proceeding) 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 the Company’s Knowledge, threatenedthreatened Action, relating to the Company Plansclaim or proceeding, any fiduciaries thereof with respect to their duties to the Company Plans or the assets of any of the trusts under any of the Company Plans (other than routine claims for benefits) nor are there facts , against or circumstances that exist that could reasonably give rise with respect to any such Actions;
Benefit Plan. The Company has not incurred (ivwhether or not assessed) neither the Company nor its Subsidiaries nor any of their Affiliates has incurred any direct Tax or indirect other material liability under ERISA the Sections 4980B, 4980D or the Code in connection with the termination of, withdrawal from 4980H or failure to fund, any Company Plan 6721 or other retirement plan or arrangement, and no fact or event exists that would reasonably be expected to give rise to any such liability; and
(v) the Company and its Subsidiaries do not maintain any Company Plan that is a “group health plan” (as such term is defined in Section 5000(b)(1) 6722 of the Code.
(d) that has not been administered and operated in all respects in compliance with the applicable requirements of Section 601 of ERISA and Section 4980B(b) of the CodeNo Benefit Plan provides, and the Company does not have any obligation to provide, health, life or other welfare benefits subsequent to termination of employment, ownership or service to employees or their beneficiaries or any other Person, except (i) to the extent required by applicable state insurance laws and its Subsidiaries Part 6 of Subtitle B of Title I of ERISA (and for which the covered Person pays the full cost of coverage), or (ii) through the end of the month in which a termination of employment occurs. With respect to each Benefit Plan: (A) all contributions (including all employer contributions and employee salary reduction contributions), distributions, reimbursements and premium payments that are due have been timely made in all material respects and all such amounts for any period ending on or before the Closing Date that are not subject to any liabilityyet due have been made or properly accrued in all material respects, including additional contributions, fines, penalties and (B) there have been no “prohibited transactions” within the meaning of Section 4975 of the Code or loss Sections 406 or 407 of Tax deductions, ERISA or breach of fiduciary duty (as a result of such administration and operation; anddetermined under XXXXX).
(de) None Except as set forth on Section 3.15(e) of the Company Plans provides for payment Disclosure Schedule or as otherwise contemplated by Section 2.3(b)(ii) of a benefitthis Agreement, the increase of a benefit amount, the payment of a contingent benefit, the acceleration of a payment or the vesting of a benefit determined or occasioned, in whole or in part, by reason of neither the execution of this Agreement or nor the consummation of the transactions contemplated hereby (either alone herein would, by itself or in conjunction combination with any other eventevent (regardless of whether that other event has or will occur). None , result in (i) any payment or benefit (whether in cash, property or the vesting of property) becoming due from or under any Benefit Plan or otherwise to any current or former director, manager, officer, individual consultant or other service provider or employee of the Company Plans Company, (ii) the accelerated vesting or timing of payment or funding, or any other plan agreement increase in the amount, or arrangement in effect immediately prior the forfeiture, of any compensation or benefit payable or provided to the Closing could result separately or in respect of any such current or former director, manager, officer, individual consultant or employee under any Benefit Plan or otherwise, (iii) any current or former employee or individual service provider receiving any amount that, individually or in the aggregate in connection with the transactions contemplated by this Agreement (either alone or in conjunction with any other event) in the payment of any amounts, could constitute an “excess parachute payment” within the meaning of Section 280G 280G(b) of the Code.
(ef) No Benefit Plan is, and the Company does not sponsor, maintain, contribute to, have any obligation to contribute to or have any current or contingent obligation or liability in respect of or relating to any: (i) Multiemployer Plan, (ii) “defined benefit plan” (as defined under Section 3(35) of ERISA) or any other plan that is or was subject to the provisions of Title IV of ERISA or Sections 412 or 430 of the Code, (iii) “multiple employer plan” (within the meaning of Section 210 of ERISA or Section 413(c) of the Code) or (iv) “multiple employer welfare arrangement” (as such term is defined in Section 3(40) of ERISA). The Company does not have any current or contingent liability or obligation by reason of at any time being considered a single employer under Section 414 of the Code with any other Person.
(g) The Company does not have any current or contingent obligation to indemnify, “gross-up” or otherwise make whole any Person for the imposition of Taxes, including those under Section 4999 or 409A of the Code.
(h) Each Company Benefit Plan (or any portion thereof) that is a “nonqualified deferred compensation plan” (within the meaning of Section 409A(d)(1) 409A of the Code and all IRS guidance promulgated thereunder) has complied been operated, maintained and administered in form and operation compliance in all material respects with the requirements of Section 409A of the Code. No current or former employee, director or other service provider is entitled to and no amount under any gross-up, make-whole or other additional payment from the Company such Benefit Plan or any of its Subsidiaries in respect of any portion thereof is, has been or is expected to be subject to Tax (including Federal, state, local or foreign income, excise or other Taxes (including Taxes imposed under Section 409A and 4999 of the Code)) or interest or penalty related thereto.
Appears in 1 contract
Benefit Plans. (a) Section 3.11(a) Schedule 4.28 of the Company Disclosure Letter Schedules sets forth a true complete list of the Benefit Plans.
(b) Current and complete listcopies of all written Benefit Plans or, where oral, written summaries of the material terms of them, have been provided or made available to the Purchaser together with current and complete copies of all documents relating to the Benefit Plans, including: all documents establishing, creating or amending any of the Benefit Plans; all trust agreements, funding agreements; insurance contracts, and the most recent financial statements and accounting statements and reports; all booklets, summaries, manuals and written communications of a general nature distributed or made available to any Employees or former employees concerning any Benefit Plans.
(c) Each Pension Plan has been qualified and administered in compliance with (i) the terms thereof, and (ii) the Internal Revenue Code of 1986, as of amended (the date hereof, of each “employee benefit plan” (within the meaning of section 3(3"Code") of and the Employee Retirement Income Security Act of 1974 1974, as amended (“"ERISA”")); and the Corporation has not received, “multiemployer plan” (within the meaning of ERISA section 3(37)) and all stock purchase, stock option, phantom stock or other equity-based plan, severance, employment, collective bargaining, 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 or required in the future as a result last six years, any notice from any Person questioning or challenging such compliance (other than in respect of any claim related solely to that Person).
(d) All obligations to or under the Pension Plans (whether pursuant to their terms or the Code or ERISA) have been satisfied, and there are no outstanding defaults or violations under the Pension Plans by the Corporation nor do the Corporation Stockholders or the Corporation have any actual knowledge, without further enquiry or investigation, of any default or violation by any other party to any Pension Plan.
(e) Other than those required by the Code of ERISA, there have been no improvements, increases or changes to, or promised improvements, increases or changes to, the benefits provided under any Pension Plan. None of the Pension Plans provides for benefit increases or the acceleration of or an increase in funding obligations that are contingent upon or will be triggered by the entering into of this Agreement or the completion of the transactions contemplated by this Agreement or otherwise)Agreement, whether formal or informal, written or oral, legally binding or not, under which any current or former employee, director or consultant other than the full vested of the Company or its Subsidiaries (or any of their dependents) has any present or future right to compensation or accrued benefits or the Company or its Subsidiaries has had or has any present or future liability or with respect to which it is otherwise bound (collectively, the “Company Plans”). With respect to each Company Plan, the Company has made available to Parent a true and complete copy thereof and, to the extent applicable: (i) any related trust agreement or other funding instrument, (ii) the most recent determination letter of the Internal Revenue Service (the “IRS”), if applicable, (iii) any summary plan description and other written communications (or a description of any oral communications) required by the Company or its Subsidiaries to their employees concerning Code upon the extent of the benefits provided under a Company Plan, and (iv) for the two most recent years (A) the Form 5500 and attached schedules, (B) audited financial statements, (C) actuarial valuation reports and (D) attorney’s response to an auditor’s request for information.
(b) No Company Plan is subject to Title IV of ERISA or Section 412 of the Code, no Company Plan is a multiemployer plan (within the meaning of Section 3(37) of ERISA), and neither the Company nor any member of its Controlled Group (defined as any organization which is a member termination of a controlled group of organizations within the meaning of Code Sections 414(b), (c), (m) or (o)) has any liability (direct or contingent) with respect to, and has never incurred any liability (director or contingent) with respect to, any employee benefit plan subject to Title IV of ERISA. No Company Pension Plan provides health or other welfare benefits to former employees of the Company or its Subsidiaries other than health continuation coverage pursuant to COBRA.
(c) With respect to the Company Plans, except to the extent that the inaccuracy of any of the representations set forth in this paragraph (c), individually or in the aggregate, has not been and would not reasonably be expected to be material to the Company and its Subsidiaries, taken as a whole:
(i) each Company Plan has been established and administered in accordance with its terms and in compliance with the applicable provisions of applicable Law, including ERISA and the Code, and all contributions required to be made under the terms of any Company Plan have been timely made;
(ii) each Company Plan intended to be qualified under Section 401(a) of the Code has received a favorable determination, advisory or opinion letter, as applicable, from the IRS that it is so qualified and nothing has occurred that would reasonably be expected to cause the loss of such qualified status of such Company Plan;Code.
(iiif) All employer or employee payments, contributions or premiums required to be remitted, paid to or in respect of each Pension Plan have been paid or remitted in a timely fashion in accordance with the terms of that Pension Plan and the Code and ERISA, and no Taxes, penalties or fees are owing or exigible under any Pension Plan, and to the knowledge of the Corporation there are no liabilities or contingent liabilities in respect of any Pension Plans that have been discontinued.
(g) There is no Action (including any proceeding, action, investigation, audit suit or other administrative proceeding) 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 the Company, threatened, relating to the Company Plans, any fiduciaries thereof with respect to their duties to the Company Plans or the assets of any of the trusts under any of the Company Plans claim (other than routine claims for payment of benefits) nor are there facts or circumstances that exist that could reasonably give rise pending or, to the knowledge of the Corporation, threatened involving any such Actions;
(iv) neither the Company nor its Subsidiaries nor any of their Affiliates has incurred any direct or indirect liability under ERISA or the Code in connection with the termination of, withdrawal from or failure to fund, any Company Pension Plan or other retirement plan or arrangementits assets, and to the knowledge of the Corporation no fact or event exists that would facts exist which could reasonably be expected to give rise to any such liability; andproceeding, action, suit or Claim (other than routine claims for benefits).
(vh) No event has occurred respecting any Pension Plan which could otherwise reasonably be expected to adversely affect the Company and its Subsidiaries do not maintain tax qualified status of any Company Plan that is a “group health such plan” .
(as such term is defined in Section 5000(b)(1i) of the Code) that The Corporation has not been administered and operated in all respects in compliance with the applicable requirements received, or applied for, any payment of Section 601 of ERISA and Section 4980B(b) of the Code, and the Company and its Subsidiaries are not subject to surplus or any liability, including additional contributions, fines, penalties or loss of Tax deductions, payments as a result of such administration and operation; andthe demutualization of the insurer of any Benefit Plan out of or in respect of any Benefit Plan.
(dj) The Corporation has not taken any contribution or premium holidays under any Benefit Plan and there have been no withdrawals or transfers of assets from any Benefit Plan.
(k) All employee data necessary to administer each Benefit Plan is in the possession of the Corporation and is substantially complete, correct and in a form which is sufficient for the proper administration of the Benefit Plan in accordance with its terms and all Laws.
(l) None of the Company Benefit Plans provides for payment provide benefits beyond retirement or other termination of a benefitservice to Employees or former employees, or to the increase beneficiaries of a benefit amountsuch employees, except as required by applicable laws, including but not limited to the payment Consolidated Omnibus Reconciliation Act of a contingent benefit, the acceleration of a payment or the 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 hereby 1985.
(either alone or in conjunction with any other event). m) None of the Company Benefit Plans require or permit a retroactive increase in premiums or payments, or require additional payments or premiums on the termination of any Benefit Plan or insurance contract in respect thereof other plan agreement or arrangement in effect immediately prior than the normal and reasonable administrative fees associated with the termination of benefit plans, and the level of insurance reserves, if any, under any insured Benefit Plan, to the Closing could result separately or in the aggregate in connection with the transactions contemplated by this Agreement (either alone or in conjunction with any other event) in the payment of any “excess parachute payment” within the meaning of Section 280G best of the CodeCorporation's knowledge, is reasonable and sufficient to provide for all incurred but unreported claims.
(e) Each Company Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A(d)(1) of the Code has complied in form and operation with the requirements of Section 409A of the Code. No current or former employee, director or other service provider is entitled to any gross-up, make-whole or other additional payment from the Company or any of its Subsidiaries in respect of any Tax (including Federal, state, local or foreign income, excise or other Taxes (including Taxes imposed under Section 409A and 4999 of the Code)) or interest or penalty related thereto.
Appears in 1 contract
Samples: Merger Agreement (Workstream Inc)
Benefit Plans. (a) Section 3.11(a4.12(a) of the Company Xxxxxx Disclosure Letter sets forth a true and complete listforth, as of the date hereof, a true and complete list of each material “employee benefit plan” (within the meaning of section Section 3(3) of the Employee Retirement Income Security Act of 1974 ERISA) (“ERISA”)), “multiemployer plan” (within the meaning of ERISA section 3(37)other than Multiemployer Plans) and all material stock purchase, stock option, phantom stock or other equity-based planplans, severance, employment, collective bargaining, change-in-control, retention, fringe benefit, bonus, incentive, deferred compensation and all other material 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 or required in the future as a result of the transactions contemplated by this Agreement or otherwise), whether formal or informal, written or oral, legally binding or notERISA, under which any current or former employee, director or consultant of the Company Xxxxxx or its Subsidiaries (or any of their dependents) has any present or future right to compensation or benefits or the Company Xxxxxx or its Subsidiaries has had or has any present or future liability or with respect to which it is otherwise bound (collectivelybound. All such plans, agreements, programs, policies and arrangements shall be collectively referred to as the “Company Xxxxxx Plans”). .” With respect to each Company PlanXxxxxx Plan (other than plans maintained outside the United States or primarily for the benefit of employees located outside the United States), the Company Xxxxxx has made available to Parent Rook a true current, accurate and complete copy thereof and, to the extent applicable: (i) any related trust agreement or other funding instrument, (ii) the most recent determination letter or opinion letter of the Internal Revenue Service (IRS or equivalent approval or determination letter in respect of any Xxxxxx Plan which applies to employees or former employees outside of the “IRS”)United States, if applicable, (iii) any summary plan description and other material written communications (or a description of any oral communications) by the Company Xxxxxx or its Subsidiaries to their employees concerning the extent of the benefits provided under a Company Plan, Xxxxxx Plan and (iv) for the two most recent years plan year (A) the Form 5500 and attached schedules5500, (B) audited financial statements, statements and (C) actuarial valuation reports and (D) attorney’s response to an auditor’s request for informationreports.
(b) No Company Plan is subject With respect to Title IV the Xxxxxx Plans, except as would not have a Xxxxxx Material Adverse Effect:
(i) neither Xxxxxx nor any of its ERISA Affiliates (nor any predecessor to any such entity) sponsors, maintains, administers or Section 412 of the Code, no Company Plan is a multiemployer plan contributes to (within the meaning of Section 3(37) of ERISAor has any obligation to contribute to), and neither the Company nor or has since January 1, 2012, sponsored, maintained, administered or contributed to (or had any member of its Controlled Group (defined as any organization which is a member of a controlled group of organizations within the meaning of Code Sections 414(bobligation to contribute to), (c), (m) or (o)) has any liability (direct or contingent) with respect to, and has never incurred any liability (director or contingent) with respect to, any employee benefit plan subject to Title IV of ERISA. No Company Plan provides health or other welfare benefits to former employees of the Company or its Subsidiaries other than health continuation coverage pursuant to COBRA.
(c) With respect to the Company Plans, except to the extent that the inaccuracy of any of the representations set forth in this paragraph (c), individually or in the aggregate, has not been and would not reasonably be expected to be material to the Company and its Subsidiaries, taken as a whole:
(i) each Company Plan has been established and administered in accordance with its terms and in compliance with the applicable provisions of applicable Law, including ERISA and the Code, and all contributions required to be made under the terms of any Company Plan have been timely madeMultiemployer Plan;
(ii) each Company Xxxxxx Plan intended to be qualified under Section 401(a) of the Code has received a favorable determination, advisory or and/or opinion letter, as applicable, from the IRS that it is so qualified and nothing has occurred since the date of any such letter that would reasonably be expected to cause the loss of such qualified status of such Company Xxxxxx Plan;
(iii) there is no Action (including any investigation, audit or other administrative proceeding) by the Department of Labor, the Pension Benefit Guaranty CorporationPBGC, the IRS or any other Governmental Entity or by any plan participant or beneficiary pending, or to the Knowledge knowledge of the CompanyXxxxxx, threatened, relating to the Company Plans, against or affecting any fiduciaries thereof with respect to their duties to the Company Plans or the assets of any of the trusts under any of the Company Xxxxxx Plans (other than routine claims for benefits) nor are there facts or circumstances that exist that could reasonably give rise to any such Actions;); and
(iv) neither the Company nor each Xxxxxx Plan has been maintained in compliance with its Subsidiaries nor any of their Affiliates has incurred any direct or indirect liability under terms and all Applicable Law, including ERISA or and the Code in connection and to the knowledge of Xxxxxx, since January 1, 2013, no events have occurred with the termination of, withdrawal from or failure respect to fund, any Company Xxxxxx Plan or other retirement plan or arrangement, and no fact or event exists that would reasonably be expected to give rise to result in the assessment of any such liability; andexcise taxes or penalties against Xxxxxx or any of its Subsidiaries.
(vc) the Company and Neither Xxxxxx nor any of its Subsidiaries do not maintain nor any Company Plan that member of their Controlled Group, contributes to or is a “group health plan” required to contribute to, or within the last six (as such term is defined in Section 5000(b)(16) of the Codeyears has contributed to or been required to contribute to, or otherwise has any liability (including withdrawal liability) that has not been administered and operated in all respects in compliance or could reasonably be expected to incur any liability with the applicable requirements of Section 601 of ERISA and Section 4980B(b) of the Coderespect to, and the Company and its Subsidiaries are not subject to any liability, including additional contributions, fines, penalties or loss of Tax deductions, as a result of such administration and operation; andMultiemployer Plan.
(d) None of the Company Xxxxxx Plans provides for an increase in contributions, payment of a benefit, the increase of a benefit amount, the payment of a contingent benefit, benefit or the acceleration of a the payment or the vesting of a benefit determined or occasioned, in whole or in part, by reason of the approval or execution of this Agreement or the approval or consummation of the Merger or any of the other transactions contemplated hereby hereby.
(either alone e) No amounts paid or in conjunction with any other event). None of payable or benefits provided or to be provided under the Company Xxxxxx Plans or any other plan agreement or arrangement in effect immediately prior to the Closing could result separately or in the aggregate otherwise in connection with the Merger, the Share Issuance, the Charter Amendment, or any of the other transactions contemplated by this hereby, the Rook Support Agreement, the Xxxxxx Support Agreement, the Rook Stockholders Agreement or the Xxxxxx Stockholders Agreement (either alone or in conjunction combination with any other event) in the payment of any will constitute an “excess parachute payment” within the meaning of (as defined in Section 280G of the Code). No Xxxxxx Participant is entitled to any gross-up, make whole or other additional payment from Xxxxxx or any of its Subsidiaries in respect of any Tax, including any excise taxes imposed under Section 4999.
(ef) Each Company Xxxxxx Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A(d)(1) of the Code has complied complies in all material respects in both form and operation with the requirements of Section 409A of the Code. No current or former employee, director or other service provider Xxxxxx Participant is entitled to any gross-up, make-make whole or other additional payment from the Company Xxxxxx or any of its Subsidiaries in respect of any additional Tax (including Federal, state, local or foreign income, excise or other Taxes (including Taxes imposed under Section 409A and 4999 409A.
(g) Neither Xxxxxx nor any of its Subsidiaries has classified any individual as an “independent contractor” or of similar status who, pursuant to the Code)terms of applicable Law or a Xxxxxx Plan, should have been classified as an “employee” or of similar status.
(h) For purposes of this Agreement, “Xxxxxx Participant” shall mean current or interest former director, officer, employee, contractor or penalty related theretoconsultant of Xxxxxx or any of its Subsidiaries.
Appears in 1 contract
Benefit Plans. (a) Section 3.11(a) of the The Company Disclosure Letter sets forth has provided to Parent a true and complete list, as of the date hereof, list of each material “employee benefit plan” (within the meaning of section 3(3) of the Employee Retirement Income Security Act of 1974 1974, as amended (“ERISA”)), “multiemployer plan” (within the meaning of ERISA section 3(37)) and all material compensation, stock purchase, stock option, phantom stock or other equity-based plan, severance, retention, employment, collective bargaining, change-in-control, welfare, fringe benefit, bonus, incentive, commission, pension, deferred compensation and all other material employee benefit and compensation plans, agreements, programs, policies programs or other arrangementspolicies, whether or not subject to ERISA (including ERISA, to which the Company or any funding mechanism therefor now in effect of its Subsidiaries is a party or required in that are sponsored, contributed to or maintained by the future as a result Company or any of its Subsidiaries for the transactions contemplated by this Agreement or otherwise), whether formal or informal, written or oral, legally binding or not, under which benefit of any current or former employee, employee or director of the Company or consultant any of its Subsidiaries or for which the Company or any of its Subsidiaries has any material liability for current or former employees or directors of the Company or its Subsidiaries (or any of their dependents) has any present or future right Subsidiaries. All such plans, programs and policies shall be collectively referred to compensation or benefits or the Company or its Subsidiaries has had or has any present or future liability or with respect to which it is otherwise bound (collectively, as the “Company Plans”). .” With respect to each Company Plan, the Company has furnished or made available to Parent a true current, accurate and complete copy thereof or, in the case of an unwritten Company Plan, a written description thereof, and, to the extent applicable: (i) any related trust agreement or other funding instrument, (ii) the most recent determination determination, opinion or advisory letter of the Internal Revenue Service (the “IRS”), if applicable, (iii) any if applicable, the most recent summary plan description and other written communications distributed to participants in such Company Plan, (or a description of any oral communicationsiv) by if applicable, the Company or its Subsidiaries most recent Form 5500 filed with respect to their employees concerning the extent of the benefits provided under a such Company Plan, and (ivv) for if applicable, the two most recent years (A) the Form 5500 recently completed actuarial valuation report and attached schedules, (B) audited financial statements, (C) actuarial valuation reports and (D) attorney’s response to an auditor’s request statements prepared for informationsuch Company Plan.
(b) No Company Plan is subject to Title IV of ERISA or Section 412 of the Code, no Company Plan is a multiemployer plan (within the meaning of Section 3(37) of ERISA), and neither the Company nor any member of its Controlled Group (defined as any organization which is a member of a controlled group of organizations within the meaning of Code Sections 414(b), (c), (m) or (o)) has any liability (direct or contingent) with respect to, and has never incurred any liability (director or contingent) with respect to, any employee benefit plan subject to Title IV of ERISA. No Company Plan provides health or other welfare benefits to former employees of the Company or its Subsidiaries other than health continuation coverage pursuant to COBRA.
(c) With respect to the Company Plans, except to the extent that the inaccuracy of any of the representations set forth in this paragraph (c), individually or in the aggregate, has not been and as would not reasonably be expected to be material to the Company and its Subsidiaries, taken as a wholeCompany:
(i) (A) each Company Plan has been established and administered in accordance with its terms and established, administered, and documented in compliance with the applicable provisions of applicable Law, including ERISA and the Code, (B) none of the Company, any of its Subsidiaries or, to the Knowledge of the Company, any other Person, has engaged in a nonexempt prohibited transaction, as described in Section 406 of ERISA or Section 4975 of the Code, with respect to any Company Plan, and (C) all contributions required to be made which are due under the terms of any Company Plan have been timely made;; and
(ii) each Company Plan intended to be qualified under Section 401(a) of the Code has received (or is entitled to rely on) a timely favorable determination, advisory or and/or opinion letter, as applicable, from the IRS that it is so with respect to its qualified and status (or the deadline for obtaining such a letter has not expired as of the date of this Agreement) and, to the Knowledge of the Company, nothing has occurred since the date of the most recent such letter that would reasonably be expected to cause the loss of such qualified status of such Company Plan;
(iii) there is no Action (including any investigation, audit or other administrative proceeding) by the Department of Labor, the Pension Benefit Guaranty Corporation, the IRS or any other Governmental Entity or by any plan participant or beneficiary pendingpending or, or to the Knowledge of the Company, threatened, threatened relating to the Company Plans, any fiduciaries thereof with respect to their duties to the Company Plans or the assets of any of the trusts under any of the Company Plans (other than routine claims for benefits) nor are there facts or circumstances that exist that could reasonably give rise to any , appeals of such Actionsclaims and domestic relations order proceedings);
(iv) neither the no Company nor its Subsidiaries nor any Plan is subject to Title IV of their Affiliates has incurred any direct or indirect liability under ERISA or subject to Section 412 of the Code in connection with the termination of, withdrawal from or failure to fund, any Company Plan or other retirement plan or arrangement, and no fact or event exists that would reasonably be expected to give rise to any such liability; andCode;
(v) no Company Plan is a “multiemployer plan” (within the meaning of Section 3(37) of ERISA) and the Company and its Subsidiaries do could not maintain any incur liability under Section 4063 or 4064 of ERISA;
(vi) each Company Plan that is a “group health plan” (as such term is defined in Section 5000(b)(1) of the Code) that has not been administered and operated in all material respects in compliance with the applicable requirements of Section 601 of ERISA and Section 4980B(b4980B(f) of the Code, and . None of the Company Plans provides for or promises health or life insurance benefits (whether insured or self-insured) to any employee or former employee following termination of employment or service with the Company and its Subsidiaries are not subject (other than (A) coverage mandated by applicable Law, (B) benefits through the end of the month of termination of employment, (C) death benefits attributable to any liabilitydeaths occurring at or prior to termination of employment, including additional contributions(D) disability benefits attributable to disabilities occurring at or prior to termination of employment, fines, penalties or loss of Tax deductions, as a result of such administration and operation(E) conversion rights); and
(dvii) None none of the Company Plans provides for payment of a benefit, the increase of a benefit amount, the payment of a contingent benefit, benefit or the acceleration of the payment or vesting of a benefit, or the payment (whether in cash or property or the vesting of a benefit property) to any “designated individual” (as such term is defined in Treasury Regulations Section 1.280G-1) that would reasonably be expected, individually or in combination with any other such payment, to constitute an “excess parachute payment” (as defined in Section 280G(b)(1) of the Code), determined or occasioned, in whole or in part, by reason of the execution of this Agreement or the consummation of the transactions contemplated hereby (either alone or in conjunction with any other event). None of the Company Plans or any other plan agreement or arrangement in effect immediately prior to the Closing could result separately or in the aggregate in connection with the transactions contemplated by this Agreement (either alone or in conjunction with any other event) in the payment of any “excess parachute payment” within the meaning of Section 280G of the Codehereby.
(ec) Each Except as would not reasonably be expected to be material to the Company, each Company 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 complied been operated in form compliance, in all material respects, with Section 409A of the Code since January 1, 2005, based upon the Company’s good faith, reasonable interpretation of (A) Section 409A of the Code and operation with (B) Treasury Regulation section 1.409A and other authorities promulgated thereunder by the requirements U.S. Department of the Treasury or the IRS (clauses (A) and (B), together, the “409A Authorities”). Except as would not reasonably be expected to be material to the Company, no Company Plan that would be a Nonqualified Deferred Compensation Plan subject to Section 409A of the Code but for the effective date provisions that are applicable to Section 409A of the Code. No current , as set forth in Section 885(d) of the American Jobs Creation Act of 2004, as amended (the “AJCA”), has been “materially modified” within the meaning of Section 885(d)(2)(B) of the AJCA after October 3, 2004, based upon the Company’s good faith reasonable interpretation of the AJCA and the 409A Authorities and has not been operated in compliance, in all material respects, with the 409A Authorities.
(d) With respect to each Company Plan that is not subject exclusively to United States Law (a “Non-U.S. Benefit Plan”): Except as would not reasonably be expected to be material to the Company, (i) all employer and employee contributions to each Non-U.S. Benefit Plan required by Law or former employee, director by the terms of such Non-U.S. Benefit Plan or other service provider is entitled pursuant to any grossother contractual obligation (including contributions to all mandatory provident fund schemes) have been made or, if applicable, accrued in accordance with GAAP and all such contributions or accruals have been made in a timely manner; (ii) the fair market value of the assets of each funded Non-upU.S. Benefit Plan, makethe liability of each insurer for any Non-whole U.S. Benefit Plan funded through insurance or other additional payment the book reserve established for any Non-U.S. Benefit Plan, together with any accrued contributions, is sufficient to procure or provide for the accrued benefit obligations, as of the date of this Agreement, with respect to all current and former participants in such plan; (iii) from and after the Company or any of Closing, Parent and its Subsidiaries in respect Affiliates shall receive the full benefit of any Tax such funds, accruals or reserves under the Non-U.S. Benefit Plans; and (including Federal, state, local or foreign income, excise or other Taxes (including Taxes imposed under Section 409A iv) each Non-U.S. Benefit Plan required to be registered has been registered and 4999 of the Code)) or interest or penalty related theretohas been maintained in good standing with applicable regulatory authorities.
Appears in 1 contract
Benefit Plans. (a) Section 3.11(a5.18(a) of the Company Disclosure Letter Schedule sets forth a true and complete list, as of the date hereof, list of each (i) “employee benefit plan” (within the meaning of as defined in section 3(3) of the Employee Retirement Income Security Act ERISA, whether or not subject to ERISA) and each (ii) retirement, deferred compensation, pension, savings, bonus, commission, equity or equity-based or other incentive, retention, employment, independent contractor, consulting, unemployment compensation, vacation or other paid time off, change of 1974 control, severance, health or welfare benefit, fringe benefit and other compensation or benefit agreement, Contract, plan, policy, program or arrangement, in each case, whether or not reduced to writing, that is or was sponsored, maintained, contributed to, or required to be contributed to by Fortis or any of its ERISA Affiliates or under or with respect to which Fortis or any of its ERISA Affiliates has any Liability (each, a “ERISABenefit Plan”). [*] = Certain confidential information contained in this document, marked by brackets, has been omitted because it is both (i) not material and (ii) would likely cause competitive harm to the company if publicly disclosed.
(b) With respect to each material Benefit Plan, complete and correct copies of the following materials have been made available to FibroGen, as applicable: (i) the plan document and any amendments thereto (or if the Benefit Plan is unwritten, a written description of all material terms thereof); (ii) any related trust agreement, insurance contract or other funding vehicle; (iii) the current summary plan description and each summary of material modifications thereto, (iv) the annual report most recently filed with any Governmental Entity (e.g., Form 5500 and all schedules thereto); (v) the nondiscrimination testing reports (or safe harbor notices) for each of the [*]; (vi) the most recent determination, advisory or opinion letter received from the IRS; and (vii) all material, non-routine notices, letters, filings, and correspondence between Fortis and any Governmental Entity related to such Benefit Plan that relate to legal compliance of a Benefit Plan or that may impact benefits or Liabilities of such Benefit Plan in the [*].
(c) Each Benefit Plan has been established, maintained, operated, and administered in all material respects in accordance with Law and the requirements of such Benefit Plan’s governing documents. Neither Fortis nor, [*] any other Person, is in material breach of, or material default under, any Benefit Plan. There are no Actions or other claims (other than routine benefit claims) pending or, [*], threatened with respect to any Benefit Plan and there have been no non-exempt “multiemployer planprohibited transaction” (within the meaning of ERISA section 3(37)) and all stock purchase, stock option, phantom stock or other equity-based plan, severance, employment, collective bargaining, 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 or required in the future as a result of the transactions contemplated by this Agreement or otherwise), whether formal or informal, written or oral, legally binding or not, under which any current or former employee, director or consultant of the Company or its Subsidiaries (or any of their dependents) has any present or future right to compensation or benefits or the Company or its Subsidiaries has had or has any present or future liability or with respect to which it is otherwise bound (collectively, the “Company Plans”). With respect to each Company Plan, the Company has made available to Parent a true and complete copy thereof and, to the extent applicable: (i) any related trust agreement or other funding instrument, (ii) the most recent determination letter of the Internal Revenue Service (the “IRS”), if applicable, (iii) any summary plan description and other written communications (or a description of any oral communications) by the Company or its Subsidiaries to their employees concerning the extent of the benefits provided under a Company Plan, and (iv) for the two most recent years (A) the Form 5500 and attached schedules, (B) audited financial statements, (C) actuarial valuation reports and (D) attorney’s response to an auditor’s request for information.
(b) No Company Plan is subject to Title IV Section 406 of ERISA or Section 412 4975 of the Code, no Company Plan is a multiemployer plan (within the meaning of Section 3(37) of ERISA), and neither the Company nor any member of its Controlled Group (defined as any organization which is a member of a controlled group of organizations within the meaning of Code Sections 414(b), (c), (m) or (o)) has any liability (direct or contingent) with respect to, and has never incurred to any liability (director or contingent) with respect to, any employee benefit plan subject to Title IV of ERISA. No Company Benefit Plan provides health or other welfare benefits to former employees of the Company or its Subsidiaries other than health continuation coverage pursuant to COBRA.
(c) With respect to the Company Plans, except to the extent that the inaccuracy of any of the representations set forth in this paragraph (c), individually or in the aggregate, has not been fully corrected and would not reasonably be expected to be material to the Company and its Subsidiaries, taken as a whole:
(i) each Company Plan has been established and administered in accordance with its terms and in compliance with the applicable provisions of applicable Law, including ERISA and the Code, and all contributions required to be made under the terms of any Company Plan have been timely made;
(ii) each Company Plan intended to be qualified under Section 401(a) of the Code has received a favorable determination, advisory or opinion letter, as applicable, from the IRS that it is so qualified and nothing has occurred that would reasonably be expected to cause the loss of such qualified status of such Company Plan;
(iii) there is exists no Action (including any investigation, audit or other administrative proceeding) 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 the Company, threatened, relating to the Company Plans, any fiduciaries thereof with respect to their duties to the Company Plans or the assets of any of the trusts under any of the Company Plans (other than routine claims for benefits) nor are there facts or circumstances that exist that [*] which could reasonably give rise to any such Actions;
(iv) neither the Company nor its Subsidiaries nor any of their Affiliates has incurred any direct or indirect liability under ERISA or the Code in connection with the termination of, withdrawal from or failure to fund, any Company Plan or other retirement plan or arrangement, and no fact or event exists that would reasonably be expected to give rise to any such liability; andActions or claims. Neither Fortis nor any of its ERISA Affiliates has breached in any material respect any fiduciary obligation with respect to the administration or investment of any Benefit Plan. Each Benefit Plan intended to be “qualified” within the meaning of Section 401(a) of the Code is so qualified and is the subject of a favorable unrevoked determination, opinion or notification letter issued by the IRS as to its qualified status under the Code, and no circumstances have occurred that would reasonably be expected to adversely affect the tax qualified status of any such Benefit Plan or otherwise result in material Liability to Fortis.
(vd) No Benefit Plan is, or within the Company [*] has been, the subject of an examination or audit by a Governmental Entity, or is the subject of an application or filing under, or a participant in, a government-sponsored amnesty, voluntary compliance, self-correction or similar program.
(e) None of the Benefit Plans are, and none of Fortis or any of its Subsidiaries do not maintain ERISA Affiliates has ever sponsored, maintained, contributed to, been required to contribute to, or had any Company Liability with respect to: (i) any plan subject to Title IV of ERISA, Section 302 of ERISA or Section 412 of the Code or any similar Law; (ii) any “multiemployer plan” as defined in Section 3(37) of ERISA or Section 414(f) of the Code; (iii) a “multiple employer welfare arrangement” within the meaning of Section 3(40) of ERISA; or (iv) a “multiple employer plan” within the meaning of Section 210(a) of ERISA or Section 413(c) of the Code. No Benefit Plan provides post-termination medical, welfare, or life insurance benefits to any Fortis Personnel or other Person, other than as required by Section 4980B of the Code or other applicable Law and at such individual’s sole expense.
(f) Each Benefit Plan that is a “group health plan” (as such term is defined in Section 5000(b)(1) for purposes of the CodePatient Protection and Affordable Care Act and the Health Care and Education Reconciliation Act (the “Affordable Care Act”) that has not been maintained and administered and operated in compliance in all material respects in compliance with the Affordable Care Act, to the extent applicable requirements of thereto, including, to the extent required by the Affordable Care Act, offering health care coverage that does not subject Fortis to any assessment under Section 601 of ERISA and Section 4980B(b4980H(a) or 4980H(b) of the Code, and Fortis does not have, and would not reasonably be expected to have, any material liabilities for Taxes under Sections 4975 through 4980 of the Company and its Subsidiaries are not subject to any liability, including additional contributions, fines, penalties Code or loss Sections 4980A through 4980I of Tax deductions, as a result of such administration and operation; andthe Code.
(dg) None of the Company Plans provides for payment of a benefit, the increase of a benefit amount, the payment of a contingent benefit, the acceleration of a payment or the vesting of a benefit determined or occasioned, in whole or in part, by reason of Neither the execution of this Agreement or the nor consummation of the transactions contemplated hereby (will, either alone or in conjunction with any other event), (i) increase the amount of or result in the acceleration of time of payment, funding or vesting of compensation or benefits under any Benefit Plan, (ii) entitle any Fortis Personnel to any compensation or benefit under any Benefit Plan, or (iii) result in the forgiveness of indebtedness of any Fortis Personnel. None of the Company Plans or any other plan agreement or arrangement [*] = Certain confidential information contained in effect immediately prior this document, marked by brackets, has been omitted because it is both (i) not material and (ii) would likely cause competitive harm to the Closing could result separately or in the aggregate in connection with the transactions contemplated by this Agreement (either alone or in conjunction with any other event) in the payment of any “excess parachute payment” within the meaning of Section 280G of the Codecompany if publicly disclosed.
(e) Each Company Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A(d)(1) of the Code has complied in form and operation with the requirements of Section 409A of the Code. No current or former employee, director or other service provider is entitled to any gross-up, make-whole or other additional payment from the Company or any of its Subsidiaries in respect of any Tax (including Federal, state, local or foreign income, excise or other Taxes (including Taxes imposed under Section 409A and 4999 of the Code)) or interest or penalty related thereto.
Appears in 1 contract
Benefit Plans. (a) Section 3.11(a) of the The Company Disclosure Letter sets forth has provided to Parent a true and complete list, as of the date hereof, list of each “employee benefit plan” (within the meaning of section 3(3) of the Employee Retirement Income Security Act of 1974 1974, as amended (“ERISA”, whether or not subject to ERISA)), “multiemployer plan” (within the meaning of ERISA section 3(37)) ), and all other material stock purchase, stock option, phantom stock option or other equity-based planbased, severance, employment, collective bargainingindividual consulting, change-in-control, fringe benefit, bonus, incentive, deferred compensation and all other material 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 or required in the future as a result of the transactions contemplated by this Agreement or otherwise), whether formal or informal, written or oralwritten, legally binding or not, under which any current or former employee, director or consultant individual independent contractor of the Company or its Subsidiaries (or any of their dependents) has any present or future right to compensation or benefits or the Company or its Subsidiaries has had or has any present or future liability or with respect liability. All such plans, agreements, programs, policies and arrangements shall be collectively referred to which it is otherwise bound (collectively, as the “Company Plans”). .” With respect to each Company Plan, the Company has furnished or made available to Parent a true current, accurate and complete copy thereof and, to the extent applicable: (i) any related trust agreement or other funding instrument, (ii) the most recent determination letter of the Internal Revenue Service (the “IRS”), if applicable, (iii) any summary plan description and other equivalent written communications (or a description of any oral communications) by the Company or its Subsidiaries to their employees concerning the extent of the benefits provided under a Company Plan, Plan and (iv) if applicable, for the two most recent years (A) the Form 5500 and attached schedules, (B) audited financial statements, (C) actuarial valuation reports and (D) attorney’s response to an auditor’s request for information. Except as set forth on Section 3.10(a) of the Company Disclosure Letter, each Company Plan is either exempt from or has been established, documented, maintained and operated in all material respects in compliance with Section 409A of the Code and the applicable guidance issued thereunder.
(b) No None of the Company, its Subsidiaries or any other entity that is, or at any relevant time was, required to be treated as a single employer with the Company Plan is subject to Title IV under Section 4001(b)(1) of ERISA or Section 412 of the Code, no Company Plan is a multiemployer plan (within the meaning of Section 3(37) of ERISA), and neither the Company nor any member of its Controlled Group (defined as any organization which is a member of a controlled group of organizations within the meaning of Code Sections 414(b), (c), (m) or (o)) of the Code maintains, contributes to, or has any liability (direct liability, whether contingent or contingent) otherwise, with respect to, and has never incurred not within the preceding six (6) years maintained, contributed to or had any liability (director liability, whether contingent or contingent) otherwise, with respect to, to any employee benefit plan (as defined in Section 3(3) of ERISA) that is or has been (i) subject to Title IV of ERISA or Section 412 of the Code or subject to Section 4063 or 4064 of ERISA. , or (ii) a “multiemployer plan” (within the meaning of ERISA section 3(37).
(c) No Company Plan provides health or other welfare benefits or coverage beyond termination of employment except to former employees the extent required under Part 6 of Subtitle B of Title I of ERISA or any similar state law.
(d) Except as set forth on Section 3.10(d) of the Company Disclosure Letter, none of the Company Plans provides for payment of a benefit, the increase of a benefit amount, the payment of a contingent benefit or its Subsidiaries the acceleration of the payment or vesting of a benefit determined or occasioned, directly or in combination with any subsequent event, by reason of the execution of this Agreement or the consummation of the transactions contemplated hereby. The consummation of the transactions contemplated by this Agreement will not, alone or when considered in conjunction with any other than health continuation coverage pursuant to COBRAevent, result in the payment of any “excess parachute payment” as that term is defined in Section 280G of the Code.
(ce) With respect to the Company Plans, except to the extent that the inaccuracy of any of the representations set forth in this paragraph (c)Section 3.10(e) would not, individually or in the aggregate, has not been and would not reasonably be expected to be material to the have a Company and its Subsidiaries, taken as a wholeMaterial Adverse Effect:
(i) each Company Plan subject to ERISA has been established and administered in accordance with its terms and in compliance with the applicable provisions of applicable Law, including ERISA and the Code, and no prohibited transaction, as described in Section 406 of ERISA or Section 4975 of the Code has occurred with respect to any Company Plan, and all contributions required to be made under the terms of any Company Plan have been timely made;
(ii) each Company Plan intended to be qualified under Section 401(a) of the Code has received a favorable determination, advisory or opinion letter, as applicable, from the IRS that it is so qualified (or the deadline for obtaining such a letter has not expired as of the date of this Agreement) and nothing has occurred since the date of such letter that would reasonably be expected to cause the loss of such qualified status of such Company Plan;
(iii) there is no Action (including any investigation, audit or other administrative proceeding) by the Department of Labor, the Pension Benefit Guaranty CorporationCorporation (the “PBGC”), the IRS or any other Governmental Entity or by any plan participant or beneficiary pending, or to the Knowledge knowledge of the Company, threatened, relating to the Company Plans, any fiduciaries thereof with respect to their duties to the Company Plans or the assets of any of the trusts under any of the 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;
(iv) neither the Company nor its Subsidiaries nor any of their Affiliates has incurred any direct or indirect liability under ERISA or the Code in connection with the termination of, withdrawal from or failure to fund, any Company Plan or other retirement plan or arrangement, and no fact or event exists that would reasonably be expected to give rise to any such liabilityActions; and
(viv) the Company and its Subsidiaries do not maintain any Company Plan that is a “group health plan” (as such term is defined in Section 5000(b)(1) of the Code) that has not been administered and operated in all respects in compliance with the applicable requirements of Section 601 of ERISA and Section 4980B(b) of the Code, and the Company and its Subsidiaries are not subject to any material liability, including additional contributions, fines, penalties or loss of Tax deductions, tax deduction as a result of such administration and operation; and
(d) None of the Company Plans provides for payment of a benefit, the increase of a benefit amount, the payment of a contingent benefit, the acceleration of a payment or the 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 hereby (either alone or in conjunction with any other event). None of the Company Plans or any other plan agreement or arrangement in effect immediately prior to the Closing could result separately or in the aggregate in connection with the transactions contemplated by this Agreement (either alone or in conjunction with any other event) in the payment of any “excess parachute payment” within the meaning of Section 280G of the Code.
(e) Each Company Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A(d)(1) of the Code has complied in form and operation with the requirements of Section 409A of the Code. No current or former employee, director or other service provider is entitled to any gross-up, make-whole or other additional payment from the Company or any of its Subsidiaries in respect of any Tax (including Federal, state, local or foreign income, excise or other Taxes (including Taxes imposed under Section 409A and 4999 of the Code)) or interest or penalty related thereto.
Appears in 1 contract
Samples: Merger Agreement (TNS Inc)
Benefit Plans. Notwithstanding anything to the contrary in this Agreement (including any other representations and warranties contained in this Agreement), the representations and warranties contained in this Section 4.16 constitute the sole and exclusive representations and warranties of the Company relating to Benefit Plans and matters related thereto.
(a) Each material Benefit Plan that is sponsored or maintained by the Asset Seller on behalf of any Employee, and that is not an offer letter, employment agreement, consulting agreement or similar agreement and that is not a benefit plan, arrangement or obligation that a Person is required by Law to maintain, is listed on Section 3.11(a4.16(a) of the Company Disclosure Letter sets forth a true and complete list, as of the date hereof, of each “employee benefit plan” (within the meaning of section 3(3) of the Employee Retirement Income Security Act of 1974 (“ERISA”)), “multiemployer plan” (within the meaning of ERISA section 3(37)) and all stock purchase, stock option, phantom stock or other equity-based plan, severance, employment, collective bargaining, change-in-control, fringe benefit, bonus, incentive, deferred compensation and all other employee benefit and compensation such 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), whether formal or informal, written or oral, legally binding or not, under which any current or former employee, director or consultant of the Company or its Subsidiaries (or any of their dependents) has any present or future right to compensation or benefits or the Company or its Subsidiaries has had or has any present or future liability or with respect to which it is otherwise bound (collectively, the “Company Sellers’ Benefit Plans”). With respect to each Company Planof the Sellers’ Benefit Plans, the Company has made available to Parent a the Buyer true and complete copy thereof andcopies, to the extent as applicable: , of (i) the plan document (including all amendments thereto) (or, with respect to any related trust agreement or other funding instrumentsuch unwritten plan, a summary of the material terms of such plan), (ii) with respect to each Sellers’ Benefit Plan which is intended to be qualified under Section 401(a) of the Code, the most recent IRS determination letter of the Internal Revenue Service (the “IRS”)letter, if applicable, and (iii) where applicable with respect to Assumed Plans, copies of any trust agreements or other funding arrangements, custodial agreements, insurance policies and contracts, administration agreements and similar agreements, investment management or investment advisory agreements, summary plan description descriptions, summaries of material modifications, summaries of benefits and coverage, COBRA communications, portions of employee handbooks and any other written communications (or a description of any oral communications) by the Company or its Subsidiaries relating to their employees concerning the extent of the benefits provided under a Company any such Benefit Plan, and copies of material notices, letters or other correspondence from the Internal Revenue Service, Department of Labor, Department of Health and Human Services, Pension Benefit Guaranty Corporation or other Governmental Body relating to the Benefit Plan with respect to the three (iv3) for year period immediately preceding the two most recent years (A) the Form 5500 and attached schedules, (B) audited financial statements, (C) actuarial valuation reports and (D) attorney’s response to an auditor’s request for informationClosing Date.
(b) No Company Each Assumed Plan is subject to Title IV of ERISA or Section 412 of the Code, no Company Plan is a and any related trust (other than any multiemployer plan (within the meaning of Section 3(37) of ERISA), and neither the Company nor any member of its Controlled Group ERISA (defined as any organization which is each a member of a controlled group of organizations within the meaning of Code Sections 414(b), (c), (m) or (o“Multiemployer Plan”)) has any liability (direct or contingent) with respect tobeen established, administered and has never incurred any liability (director or contingent) with respect tomaintained, any employee benefit plan subject to Title IV of ERISA. No Company Plan provides health or other welfare benefits to former employees of the Company or its Subsidiaries other than health continuation coverage pursuant to COBRA.
(c) With respect to the Company Plansin all material respects, except to the extent that the inaccuracy of any of the representations set forth in this paragraph (c), individually or in the aggregate, has not been and would not reasonably be expected to be material to the Company and its Subsidiaries, taken as a whole:
(i) each Company Plan has been established and administered in accordance with its terms and in compliance with all applicable Laws (including ERISA, the Code and any applicable provisions of applicable Law, including ERISA and the Code, and all contributions required to be made under the terms of any Company local Laws). Each Assumed Plan have been timely made;
(ii) each Company Plan that is intended to be qualified under within the meaning of Section 401(a) of the Code (a “Qualified Benefit Plan”) has timely received a current favorable determinationdetermination letter, advisory letter, or opinion letter, as applicable, letter from the IRS that it such plan is so qualified and nothing has occurred that would reasonably be expected to cause the loss of such qualified status of such Company Plan;
(iii) there is no Action (including any investigationunder Section 401(a), audit or other administrative proceeding) by the Department of Laborand, 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 the Company, threatenednothing has occurred that could reasonably be expected to adversely affect the qualified status of any Qualified Benefit Plan. To the Knowledge of the Company, relating to the Company Plans, any fiduciaries thereof nothing has occurred with respect to their duties any Assumed Plan that has subjected or could reasonably be expected to subject the Company Plans or the assets of any of its ERISA Affiliates or, with respect to any period on or after the trusts under Closing Date, Buyer or any of its Affiliates, to a penalty under Section 502 of ERISA or to tax or penalty under Sections 4975 or 4980H of the Company Plans Code. No Assumed Plan (other than routine claims a Multiemployer Plan) which is subject to minimum funding requirements, including any multiple employer plan, has an “accumulated funding deficiency,” whether or not waived, or is subject to a lien for unpaid contributions under Section 303(k) of ERISA or Section 430(k) of the Code. No Assumed Plan which is a defined benefit plan has an “adjusted funding target attainment percentage,” as defined in Section 436 of the Code, less than 80%. All benefits, contributions and premiums relating to each Assumed Plan have been timely paid in accordance with the terms of such Assumed Plan and all applicable Laws and accounting principles, and all benefits accrued under any unfunded Assumed Plan have been paid, accrued or otherwise adequately reserved to the extent required by, and in accordance with, GAAP.
(c) Neither the Company nor are there facts any of its ERISA Affiliates has in the last three (3) years, (i) incurred, nor reasonably expects to incur, any material Liability under Title IV of ERISA or circumstances that exist that could reasonably give rise related provisions of the Code relating to any such Actions;
Assumed Plan; (ii) failed to timely pay premiums to the Pension Benefit Guaranty Corporation with respect to a Benefit Plan maintained, sponsored, or contributed to by the Company or its ERISA Affiliate on behalf of any Employee; (iii) withdrawn from any Multiemployer Plan to which it was required to contribute on behalf of an Employee; (iv) neither the Company nor its Subsidiaries nor engaged in any of their Affiliates has incurred any direct or indirect liability under ERISA or the Code in connection with the termination of, withdrawal from or failure to fund, any Company Plan or other retirement plan or arrangement, and no fact or event exists that transaction which would reasonably be expected to give rise to any such liabilitymaterial liability under Section 4069 or Section 4212(c) of ERISA; and
(v) the Company and its Subsidiaries do not maintain any Company Plan that is a “group health plan” (as such term is defined in incurred taxes under Section 5000(b)(1) 4971 of the Code) that has not been administered and operated in all respects in compliance Code with the applicable requirements of Section 601 of ERISA and Section 4980B(b) of the Code, and the Company and its Subsidiaries are not subject respect to any liability, including additional contributions, fines, penalties Assumed Plan; or loss of Tax deductions, as (vi) participated in a result of such administration and operation; andmultiple employer welfare arrangements (MEWA) covering any Employee.
(d) None of the Company Plans provides for payment of With respect to each Assumed Plan (i) no such plan is a benefitMultiemployer Plan, the increase of a benefit amount, the payment of a contingent benefit, the acceleration of a payment or the 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 hereby (either alone or in conjunction with any other event). None of the Company Plans or any other ii) no such plan agreement or arrangement in effect immediately prior to the Closing could result separately or in the aggregate in connection with the transactions contemplated by this Agreement (either alone or in conjunction with any other event) in the payment of any “excess parachute payment” within the meaning of Section 280G of the Code.
(e) Each Company Plan that is a “nonqualified deferred compensation multiple employer plan” within the meaning of Section 409A(d)(1413(c) of the Code or a “multiple employer welfare arrangement” (as defined in Section 3(40) of ERISA); (iii) no Action has complied been initiated by the Pension Benefit Guaranty Corporation to terminate any such plan or to appoint a trustee for any such plan; and (iv) no “reportable event,” as defined in form Section 4043 of ERISA, with respect to which the reporting requirement has not been waived, has occurred with respect to any such plan within the last three (3) years.
(e) Other than as required under Sections 601 to 608 of ERISA or other applicable Law, no Assumed Plan provides post-termination or retiree health benefits to any individual for any reason.
(f) There is no pending or, to the Company’s Knowledge, threatened Action relating to an Assumed Plan (other than routine claims for benefits), and operation no Assumed Plan has within the three years prior to the date hereof been the subject of an examination or audit by a Governmental Body or the subject of an application or filing under, or is a participant in, an amnesty, voluntary compliance, self-correction or similar program sponsored by any Governmental Body.
(g) There has been no amendment to, announcement by the Company or any of its Affiliates relating to, or change in employee participation or coverage under, any Assumed Plan or Collective Bargaining Agreement that would increase the annual expense of maintaining such plan above the level of the expense incurred for the most recently completed fiscal year (other than on a de minimis basis) with respect to any director, officer, employee, consultant or independent contractor of the Business, as applicable. Neither the Company nor any of its Affiliates has any commitment or obligation or, to the Company’s Knowledge, has made any representations to any employee, consultant or independent contractor of the Business, whether or not legally binding, to adopt, amend, modify or terminate any Assumed Plan or any Collective Bargaining Agreement.
(h) Each Assumed Plan that is subject to Section 409A of the Code has been administered in material compliance with its terms and the operational and documentary requirements of Section 409A of the Code and all applicable regulatory guidance (including, notices, rulings and proposed and final regulations) thereunder. Neither the Asset Seller nor the Company has any obligation to gross up, indemnify or otherwise reimburse any individual for any excise taxes, interest or penalties incurred pursuant to Section 409A of the Code. No .
(i) Except as set forth on Section 4.16(i) of the Company Disclosure Letter, neither the execution of this Agreement nor any of the transactions contemplated by this Agreement will (either alone or upon the occurrence of any additional or subsequent events): (i) entitle any current or former employee, director independent contractor or consultant of the Business to severance pay or any other service provider is entitled payment; (ii) accelerate the time of payment, funding or vesting, or increase the amount of compensation (including stock-based compensation) due to any such individual other than as described in Article VI or in any applicable Benefit Plan document; (iii) increase the amount payable under or result in any other material obligation pursuant to any Assumed Plan; (iv) result in "excess parachute payments" within the meaning of Section 280G(b) of the Code; or (v) require a "gross-up, make-whole " or other additional payment from to any "disqualified individual" within the Company or any meaning of its Subsidiaries in respect of any Tax (including Federal, state, local or foreign income, excise or other Taxes (including Taxes imposed under Section 409A and 4999 280G(c) of the Code)) or interest or penalty related thereto.
Appears in 1 contract
Samples: Sale Agreement (Emcore Corp)
Benefit Plans. (a) Section 3.11(a) of the The Company Disclosure Letter sets forth has provided to Parent a true and complete list, as of the date hereof, list of each “employee benefit plan” (within the meaning of section Section 3(3) of the Employee Retirement Income Security Act of 1974 1974, as amended (“ERISA”)), “multiemployer plan” (within the meaning of ERISA section 3(37)) and all stock purchase, stock option, phantom stock or other equity-based plan, severance, employment, collective bargaining, 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 or required in the future as a result of the transactions contemplated by this Agreement or otherwise), whether formal or informal, written or oralwritten, legally binding or not, under that is currently in effect, was maintained since December 31, 2004 or which any current has been approved before the date of the Original Agreement but is not yet effective, for the benefit of (i) directors or former employee, director or consultant employees of the Company or its Subsidiaries any other persons performing services for the Company, (ii) former directors or any employees of their dependents) has any present or future right to compensation or benefits or the Company or its Subsidiaries has had any other persons formerly performing services for the Company, or has any present (iii) beneficiaries of anyone described in (i) or future liability or with respect (ii). All such plans, agreements, programs, policies and arrangements shall be collectively referred to which it is otherwise bound (collectively, as the “Company Plans”). .” With respect to each Company Plan, the Company has furnished or made available to Parent a true current, accurate and complete copy thereof and, to the extent applicable: (i) any related trust agreement or other funding instrument, (ii) the most recent determination letter of the Internal Revenue Service (the “IRS”), if applicable, (iii) any summary plan description with each summary of material modifications thereto, if any, employee handbooks and other written communications (or a description of any oral communications) by the Company or its Subsidiaries to their employees concerning the extent of the benefits provided under a Company Plan, Plan and (iv) for the two three (3) most recent years (A) the Form 5500 Forms 5500, 941 and 1041 and attached schedules, (B) audited financial statements, and (C) actuarial valuation reports and (D) attorney’s response to an auditor’s request for informationreports.
(b) No Each Company Plan intended to be qualified under Section 401(a) of the Code has received a favorable determination, advisory and/or opinion letter, as applicable, from the IRS that it is subject so qualified and, to Title IV the knowledge of the Company, nothing has occurred since the date of such letter that would reasonably be expected to cause the loss of such qualified status of such Company Plan or cause the imposition of any penalty or Tax liability.
(c) The Company is not liable for, and the Company will not be liable for, any liability of any “ERISA Affiliate” (hereby defined to include any trade or business, whether or not incorporated, other than the Company, which has employees who are or have been at any date of determination occurring within the preceding six (6) years, treated pursuant to Section 4001(a)(14) of ERISA and/or Section 414 of the Code as employees of a single employer which includes the Company) including predecessors thereof) with regard to any Company Plan maintained, sponsored or contributed to by an ERISA Affiliate (if a like definition of Company Plan were applicable to the ERISA Affiliate in the same manner as it applies to the Company) (each such Company Plan for an ERISA Affiliate being an “ERISA Affiliate Plan”), including, without limitation: (i) withdrawal liability arising under Title IV, Subtitle E, Part 1 of ERISA; (ii) liabilities to the Pension Benefit Guaranty Corporation (“PBGC”); (iii) liabilities under Section 412 of the CodeCode or Section 302(a)(2) of ERISA; (iv) liabilities resulting from the failure on the part of the Company, no any ERISA Affiliate, each Company Plan is a multiemployer plan or each Company Plan “sponsor” or “administrator” (within the meaning of Section 3(16) of ERISA) to comply in all respects with the applicable requirements of Section 4980B of the Code and Section 601 et seq. of ERISA; or (v) liabilities resulting from an ERISA Affiliate Plan’s failure to satisfy the reporting and disclosure requirements of ERISA and the Code.
(d) Neither the Company nor any ERISA Affiliate has ever maintained or contributed to a multiemployer plan (as defined in Section 3(37) of ERISA), and neither the Company nor any member of its Controlled Group (defined as any organization which is a member of a controlled group of organizations within the meaning of Code Sections 414(b), (c), (m) or (o)) has any liability (direct or contingent) with respect to, and has never incurred any liability (director or contingent) with respect to, any employee benefit plan subject to Title IV of ERISA. No Company Plan provides health or other welfare benefits to former employees of the Company or its Subsidiaries other than health continuation coverage pursuant to COBRA.
(ce) With respect to the Company Plans, except to as disclosed in the extent that the inaccuracy of any Company SEC Documents or in Section 4.12 of the representations set forth in this paragraph (c), individually or in the aggregate, has not been and would not reasonably be expected to be material to the Company and its Subsidiaries, taken as a wholeDisclosure Letter:
(i) each Company Plan has been established and administered in accordance with its terms and in material compliance with the applicable provisions of applicable Law, including ERISA and the Code, and no reportable event, as defined in Section 4043 of ERISA, no prohibited transaction, as described in Section 406 of ERISA or Section 4975 of the Code, or accumulated funding deficiency, as defined in Section 302 of ERISA and 412 of the Code, has occurred with respect to any Company Plan, and all contributions required to be made under the terms of any Company Plan have been timely made;
(ii) each Company Plan intended to be qualified under Section 401(a) the knowledge of the Code has received a favorable determinationCompany, advisory or opinion letter, as applicable, from the IRS that it is so qualified and nothing has occurred that would reasonably be expected to cause the loss of such qualified status of such Company Plan;
(iii) there is no Action (including any investigation, audit or other administrative proceeding) by the Department of Labor, the Pension Benefit Guaranty CorporationPBGC, the IRS or any other Governmental Entity or by any plan participant or beneficiary pending, threatened in writing, or to the Knowledge of the Company, threatened, relating to the Company Plans, any fiduciaries thereof with respect to their duties to the Company Plans or the assets of any of the trusts under any of the Company Plans (other than routine claims for benefits) nor nor, to the knowledge of the Company, are there facts or circumstances that exist that could reasonably give rise to any such Actions;
(iv) neither the Company nor its Subsidiaries nor any of their Affiliates has incurred any direct or indirect liability under ERISA or the Code in connection with the termination of, withdrawal from or failure to fund, any Company Plan or other retirement plan or arrangement, and no fact or event exists that would reasonably be expected to give rise to any such liability; and
(viii) the Company and its Subsidiaries do not maintain any if a Company Plan purports to be a voluntary employees’ beneficiary association (“VEBA”), a request for a determination letter for the VEBA has been submitted to and approved by the IRS that the VEBA is a “group health plan” (as such term is defined in exempt from federal income tax under Section 5000(b)(1) of the Code) that has not been administered and operated in all respects in compliance with the applicable requirements of Section 601 of ERISA and Section 4980B(b501(c)(9) of the Code, and nothing has occurred or is expected to occur that caused or could cause the loss of such qualification or exemption or the imposition of any tax, interest or penalty with respect thereto.
(f) Neither the Company nor any ERISA Affiliate has any obligation to contribute to or provide benefits pursuant to, and its Subsidiaries are not subject to has no other liability of any liabilitykind with respect to, including additional contributions(i) a “multiple employer welfare arrangement” (MEWA) (within the meaning of Section 3(40) of ERISA), fines, penalties or loss (ii) a “plan maintained by more than one employer” (within the meaning of Tax deductions, as a result Section 413(c) of such administration and operation; andthe Code).
(dg) None of the Company Plans provides provide for payment of a benefit, the increase of a benefit amount, the payment of a contingent benefit, benefit or the acceleration of a the payment or the 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 hereby hereby. No amount or benefit that could be received by any “disqualified individual” (either alone or as defined in conjunction Treasury Regulation Section 1.280G-1) with any other event). None of respect to the Company Plans or any other plan agreement or arrangement in effect immediately prior to the Closing could result separately or in the aggregate Subsidiary in connection with the transactions contemplated by this Agreement (either alone or in conjunction combination with any other event, and whether pursuant to a Company Plan or otherwise) in the payment of any could be characterized as an “excess parachute payment” within the meaning of (as defined in Section 280G 280G(b)(1) of the Code).
(eh) No Company Plan provides for post-employment welfare benefits except to the extent required by Section 4980B of the Code or applicable state Law.
(i) Each Company Plan that is a “nonqualified deferred compensation plan” within the meaning of subject to Section 409A(d)(1) 409A of the Code has complied in form and operation with the requirements of Section 409A of the Code. No current or former employee, director or other service provider individual is entitled to any gross-up, make-whole or other additional payment from the Company or any of its Subsidiaries in respect of any Tax (including Federalfederal, state, local or foreign income, excise or other Taxes (including Taxes imposed under Section 409A and 4999 of the Code)) or interest or penalty related thereto.
(j) Each Company Plan that is subject to Section 1862(b)(1) of the SSA has been operated in compliance with the secondary payor requirements of Section 1862 thereof.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Cardiogenesis Corp /CA)
Benefit Plans. (aA) Section 3.11(a) of the Company Disclosure Letter SCHEDULE 2.19 hereto sets forth a true and complete list, as of the date hereof, of each “all employee benefit plan” plans and arrangements (within the meaning of section including, but not limited to, plans described in Section 3(3) of the Employee Retirement Income Security Act of 1974 1974, as amended (“"ERISA”)), “multiemployer plan” (within the meaning of ERISA section 3(37")) and all stock purchase, stock option, phantom stock maintained by the Company or other equity-based plan, severance, employment, collective bargaining, change-in-control, fringe benefit, bonus, incentive, deferred compensation and all other employee any Subsidiary for the benefit and compensation 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), whether formal or informal, written or oral, legally binding or not, under which any their current or former employeeemployees, director or consultant of the Company or its Subsidiaries (or any of their dependents) has any present or future right to compensation or benefits or the Company or its Subsidiaries has had or has any present or future liability or with respect to which it is otherwise bound (collectively, the “Company Plans”). With respect to each Company Plan, the Company has made available to Parent a true and complete copy thereof and, to the extent applicable: (i) any related trust agreement or other funding instrument, (ii) the most recent determination letter of the Internal Revenue Service (the “IRS”), if applicable, (iii) any summary plan description and other written communications (or a description of any oral communications) by the Company or its Subsidiaries to their employees concerning the extent of the benefits provided any Subsidiary has any liability (including, but not limited to, liabilities arising from affiliation under a Company Plan, and (iv) for the two most recent years (A) the Form 5500 and attached schedules, (B) audited financial statements, (C) actuarial valuation reports and (D) attorney’s response to an auditor’s request for information.
(b) No Company Plan is subject to Title IV of ERISA or Section 412 of the Code, no Company Plan is a multiemployer plan (within the meaning of Section 3(37) of ERISA), and neither the Company nor any member of its Controlled Group (defined as any organization which is a member of a controlled group of organizations within the meaning of Code Sections 414(b), (c), (m) or (o) of the Internal Revenue Code of 1986, as amended (the "CODE"), or Section 4001 of ERISA) (the "BENEFIT PLANS").
(B) With respect to each Benefit Plan, the Company has made available to the Buyer true and complete copies of: (i) any and all plan documents and agreements; (ii) any and all outstanding summary plan descriptions and material modifications thereto; (iii) the two most recent annual reports, if applicable; (iv) the two most recent annual and periodic accounting of plan assets, if applicable; and (v) the most recent determination letter received from the Internal Revenue Service (the "SERVICE"), if applicable. Since the date of the foregoing Benefit Plan documents, there has not been any material change in the assets or liabilities of any of the Benefit Plans or any change in their terms and operations which could reasonably be expected to affect or alter the tax status or materially affect the cost of maintaining such Benefit Plan. The Company and the Subsidiaries do not have any other ERISA Affiliates. For these purposes, "ERISA AFFILIATE" means any entity which is under common control with the Company or any Subsidiary within the meaning of Section 414 of the Code;
(C) Except as set forth on SCHEDULE 2.19, with respect to each Benefit Plan: (i) such plan has been administered in accordance with its terms and all applicable laws in all material respects; (ii) no breach of fiduciary duty has occurred with respect to which any fiduciary of any Benefit Plan, including, without limitation the Company, any Subsidiary (or any officer, director or employee thereof) or any Benefit Plan, reasonably could be expected to be liable in any material respect; (iii) no material disputes are pending or, to the knowledge of the Company, threatened; and (iv) no "prohibited transaction" (within the meaning of either Section 4975(c) of the Code or Section 406 of ERISA) has any liability (direct or contingent) occurred with respect to which the Company, any Subsidiary or any Benefit Plan reasonably could be expected to be liable for any tax, penalty or other liability.
(D) Except as set forth on SCHEDULE 2.19, the consummation of the transactions contemplated by this Agreement will not (i) accelerate the time of payment or vesting under any Benefit Plan or (ii) increase the amount of compensation or benefits due to any individual under any Benefit Plan.
(E) None of the Benefit Plans is, and none of the Company or any Subsidiary has ever maintained, had an obligation to contribute to, and has never or incurred any liability (director or contingent) other obligation with respect to, any employee benefit to (i) a plan subject to Title IV of ERISA, Section 412 of the Code, or Title I, Subtitle B, Part 3 of ERISA, (ii) a "multiemployer plan," as defined in Section 3(37) of ERISA, (iii) a "multiple employer plan," as defined in ERISA or the Code or (iv) except as set forth on SCHEDULE 2.19, a funded welfare benefit plan, as defined in Section 419 of the Code. No Company Except as set forth on SCHEDULE 2.19, there are no trusts or similar funding vehicles with respect to any Benefit Plan provides health or other that is a welfare benefits to former employees plan (within the meaning of Section 3(1) of ERISA).
(F) Except as set forth on SCHEDULE 2.19, none of the Company nor any Subsidiary has any obligation to provide any deferred compensation, pension or its Subsidiaries non- pension benefits to any individual, including, without limitation, any retired or other than former employee or director (or any beneficiary thereof), except for health benefits as specifically required by the continuation coverage pursuant provisions of federal or state law as applied to COBRAany Benefit Plan that is a group health plan (as defined in Section 601 et seq. of ERISA) or pension benefits payable from any Benefit Plan, which are intended to be qualified within the meaning of Section 401(a) of the Code. All plans, agreements and other arrangements maintained or entered into by the Company or any Subsidiary for any service provider that are "deferred compensation" subject to Section 409A of the Code comply with the requirements of that Section or can be timely amended to comply with that Section.
(cG) With respect to The Company and each Subsidiary has classified all individuals who perform services for it correctly, in accordance with the Company Plansterms of each Benefit Plan, ERISA, the Code and all other applicable laws, as common law employees, independent contractors or leased employees, except where the failure to the extent that the inaccuracy of any of the representations set forth in this paragraph (c)do so would not reasonably be expected to result, individually or in the aggregate, has not been and would not reasonably be expected to be in a material to the Company and its Subsidiaries, taken as a whole:
(i) each Company Plan has been established and administered in accordance with its terms and in compliance with the applicable provisions of applicable Law, including ERISA and the Code, and all contributions required to be made under the terms of any Company Plan have been timely made;
(ii) each Company Plan intended to be qualified under Section 401(a) of the Code has received a favorable determination, advisory or opinion letter, as applicable, from the IRS that it is so qualified and nothing has occurred that would reasonably be expected to cause the loss of such qualified status of such Company Plan;
(iii) there is no Action (including any investigation, audit or other administrative proceeding) 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 the Company, threatened, relating to the Company Plans, any fiduciaries thereof with respect to their duties to the Company Plans or the assets of any of the trusts under any of the Company Plans (other than routine claims liability for benefits) nor are there facts or circumstances that exist that could reasonably give rise to any such Actions;
(iv) neither the Company nor its Subsidiaries nor any of their Affiliates has incurred any direct or indirect liability under ERISA or the Code in connection with the termination of, withdrawal from or failure to fund, any Company Plan or other retirement plan or arrangement, and no fact or event exists that would reasonably be expected to give rise to any such liability; and
(v) the Company and its Subsidiaries do not maintain any Company Plan that is a “group health plan” (as such term is defined in Section 5000(b)(1) of the Code) that has not been administered and operated in all respects in compliance with the applicable requirements of Section 601 of ERISA and Section 4980B(b) of the Code, and the Company and its Subsidiaries are not subject to any liability, including additional contributions, fines, penalties or loss of Tax deductions, as a result of such administration and operation; and
(d) None of the Company Plans provides for payment of a benefit, the increase of a benefit amount, the payment of a contingent benefit, the acceleration of a payment or the 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 hereby (either alone or in conjunction with any other event). None of the Company Plans or any other plan agreement or arrangement in effect immediately prior to the Closing could result separately or in the aggregate in connection with the transactions contemplated by this Agreement (either alone or in conjunction with any other event) in the payment of any “excess parachute payment” within the meaning of Section 280G of the Code.
(e) Each Company Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A(d)(1) of the Code has complied in form and operation with the requirements of Section 409A of the Code. No current or former employee, director or other service provider is entitled to any gross-up, make-whole or other additional payment from the Company or any of its Subsidiaries in respect of any Tax (including Federal, state, local or foreign income, excise or other Taxes (including Taxes imposed under Section 409A and 4999 of the Code)) or interest or penalty related theretoSubsidiary.
Appears in 1 contract
Benefit Plans. (a) Section 3.11(aNeither Seller nor any member of a group of trades or businesses under common control ("ERISA Affiliate") of the Company Disclosure Letter sets forth a true and complete list, (as of the date hereof, of each “employee benefit plan” (within the meaning of section 3(3defined in Sections 4001(a)(14) or 4001(b)(1) of the Employee Retirement Income Security Act of 1974 1974, as amended (“"ERISA”)), “multiemployer plan” (within the meaning of ERISA section 3(37")) and all stock purchasewith Seller have at any time sponsored, stock optioncontributed to, phantom stock or other equity-based plan, severance, employment, collective bargaining, change-in-control, fringe benefit, bonus, incentive, deferred compensation and all other employee benefit and compensation plans, agreements, programs, policies been obligated under Title I 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), whether formal or informal, written or oral, legally binding or not, under which any current or former employee, director or consultant of the Company or its Subsidiaries (or any of their dependents) has any present or future right to compensation or benefits or the Company or its Subsidiaries has had or has any present or future liability or with respect to which it is otherwise bound (collectively, the “Company Plans”). With respect to each Company Plan, the Company has made available to Parent a true and complete copy thereof and, to the extent applicable: (i) any related trust agreement or other funding instrument, (ii) the most recent determination letter of the Internal Revenue Service (the “IRS”), if applicable, (iii) any summary plan description and other written communications (or a description of any oral communications) by the Company or its Subsidiaries to their employees concerning the extent of the benefits provided under a Company Plan, and (iv) for the two most recent years (A) the Form 5500 and attached schedules, (B) audited financial statements, (C) actuarial valuation reports and (D) attorney’s response to an auditor’s request for information.
(b) No Company Plan is subject to Title IV of ERISA to contribute to a "defined benefit plan" as defined in ERISA Section 3(35) other than The News Printing Company, Inc. Retirement Plan (the "Pension Plan"), or Section 412 of the Code, no Company Plan is a to any "multiemployer plan (within the meaning of plan" as defined in ERISA Section 3(37) of ERISA), and neither the Company . Neither Seller nor any member ERISA Affiliate of its Controlled Group (defined as Seller has at any organization time sponsored, contributed to, or been obligated to contribute to any Employee Benefit Plan which is a member of a controlled group of organizations within the meaning of Code Sections 414(b), (c), (m) or (o)) has any liability (direct or contingent) with respect to, and has never incurred any liability (director or contingent) with respect to, any employee benefit plan subject to Title IV of ERISA. No Company Plan provides health or other welfare benefits to former employees of the Company or its Subsidiaries other than health continuation coverage pursuant to COBRA.
(c) With respect to the Company Plans, except to the extent that the inaccuracy of any of the representations set forth in this paragraph (c), individually or in the aggregate, has not been and would not reasonably be expected to be material to the Company and its Subsidiaries, taken as a whole:
(i) each Company Plan has been established and administered in accordance with its terms and in compliance with the applicable provisions of applicable Law, including ERISA and the Code, and all contributions required to be made under the terms of any Company Plan have been timely made;
(ii) each Company Plan intended to be qualified under Section 401(a) of the Internal Revenue Code has received a favorable determination, advisory or opinion letter, as applicable, from other than the IRS that it is so qualified and nothing has occurred that would reasonably be expected to cause the loss of such qualified status of such Company Pension Plan;.
(iiib) there Schedule 3.17 lists every Employee Benefit Plan that affects or is no Action available to employees performing duties in connection with the Business.
(c) Seller has delivered to Purchaser (i) copies of the Pension Plan including any investigationamendments, audit and the trust thereto; (ii) all determination letters, rulings, opinion letters, information letters or other administrative proceeding) advisory opinions issued by the IRS, the Department of Labor, Labor or the Pension Benefit Guaranty CorporationCorporation after December 31, 1988; (iii) annual reports or returns, audited or unaudited financial statements, actuarial valuations and reports, and summary annual reports prepared for the Pension Plan with respect to the most recent three plan years; (iv) the most recent summary plan description and any material modifications thereto; and (v) such other information and documents as Purchaser has requested.
(d) The Pension Plan has been maintained in compliance with the applicable terms of ERISA, the IRS or Code and any other Governmental Entity applicable Law. The Pension Plan has been administered in accordance with its written terms except to the extent inconsistent with applicable Law. No oral or by written representation or communication with respect to any plan participant aspect of the Pension Plan has been made to employees of the Seller prior to the Closing which is not in accordance with the written or beneficiary pendingotherwise preexisting terms and provisions of such Pension Plan. There are no unresolved claims or disputes under the terms of, or in connection with, the Pension Plan other than claims for benefits which are payable in the ordinary course of business, and no action, proceeding, prosecution, inquiry, hearing or investigation has been commenced with respect to the Pension Plan. The Pension Plan has received a determination letter from the IRS with respect to currently applicable tax laws, and the Seller is not aware of any circumstances which could result in revocation of any such favorable determination letter.
(e) Based on the actuarial report dated January 1, 1998, the Pension Plan did not have, and to the Knowledge of Seller, the CompanyShareholder or Xxxx Xxxxxx, threatened, relating to the Company PlansPension Plan does not have, any fiduciaries thereof with respect to their duties to the Company Plans or the assets of any of the trusts under any of the Company Plans (other than routine claims for benefits) nor are there facts or circumstances "unfunded current liability," as that exist that could reasonably give rise to any such Actions;
(iv) neither the Company nor its Subsidiaries nor any of their Affiliates has incurred any direct or indirect liability under ERISA or the Code in connection with the termination of, withdrawal from or failure to fund, any Company Plan or other retirement plan or arrangement, and no fact or event exists that would reasonably be expected to give rise to any such liability; and
(v) the Company and its Subsidiaries do not maintain any Company Plan that is a “group health plan” (as such term is defined in Section 5000(b)(1302(d)(8)(A) of the Code) that has not been administered and operated in all respects in compliance with the applicable requirements of Section 601 of ERISA and Section 4980B(b) of the CodeERISA, and the Company fair market value of the assets of such plan exceeds the plan's "benefit liabilities," as that term is defined in Section 4001(a)(16) of ERISA, when determined under actuarial factors that would apply if the plan terminated in accordance with all applicable legal requirements. Since the date of the most recent actuarial valuation, there has been (i) no material change in the financial position of the Pension Plan, (ii) no change in the actuarial assumptions with respect to the Pension Plan, and its Subsidiaries are not subject to any liability, including additional contributions, fines, penalties or loss of Tax deductions, (iii) no increase in benefits under the Pension Plan as a result of such administration and operation; and
(d) None of the Company Plans provides for payment of a benefit, the increase of a benefit amount, the payment of a contingent benefit, the acceleration of a payment plan amendments or the vesting of a benefit determined or occasioned, changes in whole or in part, by reason of the execution of this Agreement or the consummation of the transactions contemplated hereby (either alone or in conjunction with any other event)applicable Law. None of the Company Plans or any other plan agreement or arrangement in effect immediately prior to the Closing could result separately or in the aggregate in connection with the transactions contemplated by this Agreement (either alone or in conjunction with any other event) in the payment of any “excess parachute payment” The Pension Plan does not have an "accumulated funding deficiency" within the meaning of Section 280G 412 of the Code or Section 302 of ERISA. The Seller has not provided, nor is it required to provide, security to the Pension Plan pursuant to Section 401(a)(29) of the Code.
(ef) Each Company Plan that Within the six-year period preceding the Closing, no Liability under Subtitle C or D of Title IV of ERISA has been or is expected to be incurred by the Seller with respect to the Pension Plan. No notice of a “nonqualified deferred compensation plan” "reportable event," within the meaning of Section 409A(d)(14043 of ERISA for which the 30-day requirement has not been waived, has been required to be filed for the Pension Plan.
(g) There are no restrictions on the rights of the Code has complied Seller to amend or terminate the Pension Plan without incurring any Liability thereunder.
(h) All contributions or premium payments due or accrued with respect to the Pension Plan through the Closing have been paid by the Seller to or on behalf of each such plan.
(i) All Employee Benefit Plans have been maintained in form and operation compliance with all applicable Laws in accordance with the requirements of Section 409A terms of the Codegoverning Employee Benefit Plan documents. No current or former employee, director or other service provider is entitled All Employee Benefit Plans have been administered in compliance with requirements necessary to any gross-up, make-whole or other additional payment from secure the Company or any intended tax consequences of its Subsidiaries in respect of any Tax (including Federal, state, local or foreign income, excise or other Taxes (including Taxes imposed under Section 409A and 4999 of the Code)) or interest or penalty related theretosuch Plans.
Appears in 1 contract
Samples: Asset Purchase Agreement (Gray Communications Systems Inc /Ga/)
Benefit Plans. (a) Section 3.11(a3.16(a) of the Company Disclosure Letter sets forth a true and complete list, as of the date hereof, of each Schedule lists all material “employee benefit planplans” (within the meaning of section Section 3(3) of the Employee Retirement Income Security Act of 1974 1974, as amended (“ERISA”)) (whether or not subject to ERISA), “multiemployer plan” (within the meaning of ERISA section 3(37)) and all other material stock purchase, stock option, phantom stock equity or other equity-based plancompensation, severance, salary continuation, employment, collective bargainingconsulting, change-in-compensation, change of control, bonus, retention, incentive, retirement, cafeteria, medical, life insurance, welfare, fringe benefit, bonusperquisite, incentiveprofit sharing, deferred compensation compensation, pension, vacation, and all other employee compensatory or benefit and compensation plans, agreements, programs, policies or other arrangementsarrangements sponsored, whether or not subject to ERISA (including any funding mechanism therefor now in effect maintained, contributed or required in to be contributed to by the future as a result Company or any of its Subsidiaries for the transactions contemplated by this Agreement or otherwise), whether formal or informal, written or oral, legally binding or not, under which benefit of any current or former employeedirectors, director officers, employees or consultant other individual service providers of the Company or its Subsidiaries (or any of their dependentsdependent or beneficiary thereof) has any present or future right to compensation or benefits or the Company or its Subsidiaries has had or has any present or future liability or with respect to which it is otherwise bound the Company or any of its Subsidiaries or any other entity that, together with the Company or any of its Subsidiaries, would be treated as a single employer under Section 414 of the Code (collectively“ERISA Affiliate”) has or would reasonably be expected to have a material Liability (whether actual or contingent) (each such plan, the agreement, program, policy or agreement, a “Company PlansBenefit Plan”). No Company Benefit Plan is maintained outside of the United States or provides benefits for employees, directors or other service providers outside of the United States.
(b) With respect to each Company Benefit Plan, the Company has made available to Parent a true accurate and complete copy thereof andcopies of all material supporting documents, including but not limited to the following, to the extent applicable: (i) any related trust the current plan document, program document, agreement or other funding instrumentpolicy and all amendments thereto (or with respect to any unwritten Company Benefit Plan, a written description thereof), (ii) any related trust agreement, annuity contract, insurance policy or other funding instrument or arrangement, (iii) the most recent determination summary plan description and any summaries of material modification, (iv) the most recent annual report on Form 5500 (including all schedules and financial statements thereto), (v) the most recent actuarial and valuation reports and financial statements, (vi) if the Company Benefit Plan is intended to be qualified under Section 401(a) of the Code, the most recent determination, opinion or advisory letter of received from the Internal Revenue Service (the “IRS”), if applicable, (iii) any summary plan description and other written communications (or a description of any oral communications) by the Company or its Subsidiaries to their employees concerning the extent of the benefits provided under a Company Plan, and (ivvii) for all material correspondence with any Governmental Authority during the two most recent years (A) three-year period preceding the Form 5500 and attached schedules, (B) audited financial statements, (C) actuarial valuation reports and (D) attorney’s response to an auditor’s request for informationdate of this Agreement.
(bc) No With respect to each Company Benefit Plan is subject to Title IV or Section 302 of ERISA or Section 412, 430 or 4971 of the Code, (i) there is no “accumulated funding deficiency” (as such term is defined in Section 302 of ERISA or Section 412 of the Code), whether or not waived, (ii) no Company Benefit Plan is, or is a multiemployer plan expected to be, “at-risk” (under Section 303 of ERISA or Section 430 of the Code), (iii) the present value of accrued benefits under the Company Benefit Plan, based upon the actuarial assumptions used for funding purposes in the most recent actuarial report prepared by the Company Benefit Plan’s actuary, did not, as of its latest valuation date, exceed the then current fair market value of the assets of such Company Benefit Plan allocable to such accrued benefits, (iv) 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, (v) all premiums to the Pension Benefit Guaranty Corporation (the “PBGC”) have been timely paid in full, (vi) the PBGC has not instituted proceedings to terminate any such Company Benefit Plan, and no condition exists that presents a material risk that such proceedings will be instituted by the PBGC; (vii) no Lien has been imposed on the assets of the Company or any ERISA Affiliate under Section 303(k) of ERISA or Section 430(k) of the Code, and no event or circumstance has occurred that is reasonably likely to result in the imposition of any such Lien on any such assets, and (viii) no Liability under Title IV of ERISA has been incurred by the Company or any ERISA Affiliate that has not been satisfied in full, and no condition exists that presents a risk to the Company or any ERISA Affiliate (including, after the Effective Time, Parent and any of its ERISA Affiliates) of incurring or being subject (whether primarily, jointly or secondarily) to a Liability (whether actual or contingent) thereunder (other than for premiums to the PBGC in the ordinary course).
(d) Neither the Company nor any of its Subsidiaries nor any ERISA Affiliate maintains, sponsors, contributes to or is obligated to contribute to, or within the preceding seven years has maintained, sponsored, contributed to or been obligated to contribute to, or has or would reasonably be expected to have any direct or indirect Liability with respect to, (i) a “multiemployer plan” (as such term is defined in Section 3(37) of ERISA), and neither the Company nor any member of its Controlled Group (defined as any organization which is ii) a member of a controlled group of organizations multiple employer plan within the meaning of Code Sections 414(bSection 4063 or 4064 of ERISA or Section 413 of the Code, (iii) a “multiple employer welfare arrangement” (as defined in Section 3(40) of ERISA), (c), (m) or (o)iv) has any liability (direct or contingentexcept as set forth in Section 3.16(d) with respect toof the Company Disclosure Schedule, and has never incurred any liability (director or contingent) with respect to, any an employee benefit plan subject to Title IV or Section 302 of ERISA. No Company Plan provides health ERISA or other welfare benefits to former employees Section 412 of the Company or its Subsidiaries other than health continuation coverage pursuant to COBRACode.
(ce) With respect to the Each Company Plans, except to the extent that the inaccuracy of any of the representations set forth in this paragraph (c), individually or in the aggregate, has not been and would not reasonably be expected to be material to the Company and its Subsidiaries, taken as a whole:
(i) each Company Benefit Plan has been established established, maintained, funded and administered in all material respects in accordance with its terms and in compliance with ERISA, the applicable provisions of Code and other applicable Law. The Company and its Subsidiaries have performed all of their material obligations with respect to the Company Benefit Plans, including without limitation (i) the health plan compliance requirements under the Patient Protection and Affordable Care Act, as amended including the employer mandate under Section 4980H of the Code and related information reporting requirements, (ii) the health plan continuation coverage requirements under Sections 601 through 608 of ERISA and Section 4980B of the Code, and all contributions required to be made (iii) the privacy, security, and breach notification requirements under the terms Health Insurance Portability and Accountability Act of any 1996, as amended. Each Company Benefit Plan have been timely made;
(ii) each Company Plan that is intended to be qualified under Section 401(a) of the Code has received and its related trust intended to be exempt from Section 501(a) of the Code is the subject of a current favorable determinationdetermination letter as to its qualification issued by the IRS, a timely application for such a determination letter is now pending, or such Company Benefit Plan may rely as to its qualification on a current opinion or advisory or opinion letter, as applicable, from letter issued by the IRS that it is so qualified with respect to a prototype or volume submitter plan duly adopted in accordance with the requirements for such reliance, and nothing to the Knowledge of the Company, no event has occurred that would adversely affect the qualification of any such Company Benefit Plan or the exempt status of its related trust. No non-exempt prohibited transaction (within the meaning of Section 406 of ERISA or Section 4975 of the Code), breach of fiduciary duty or other event has occurred with respect to any Company Benefit Plan that would reasonably be expected to cause subject the loss Company, any of its Subsidiaries or any of their respective directors, officers or employees to the assessment of any material Taxes, penalties or other Liability.
(f) Except as set forth in Section 3.16(f) of the Company Disclosure Schedule, no Company Benefit Plan provides, and none of the Company or any of its Subsidiaries has any obligations to provide, health, life insurance or other welfare benefits to current or former employees of the Company or any of its Subsidiaries (or the dependents of such qualified status employees) beyond their retirement or other termination of service, except (i) to the extent required by applicable Law, including Section 4980B of the Code, Part 6 of Subtitle B of Title I of ERISA and similar state Law, (ii) coverage through the end of the month of retirement or other termination of employment or service, or (iii) disability benefits attributable to disabilities occurring at or prior to retirement or other termination of employment under a Company Benefit Plan which benefits are fully provided for by insurance. Except as set forth in Section 3.16(f) of the Company Disclosure Schedule, the Company or the applicable Subsidiary has reserved the right to amend, terminate or modify at any time each Company Benefit Plan or other arrangement that provides retiree or post-employment disability, life insurance or other welfare benefits to any person without incurring any Liability thereunder.
(g) All contributions, reimbursements, premium payments and other amounts and Liabilities required to have been paid under or with respect to each Company Benefit Plan have been paid or properly accrued (as applicable) on a timely basis and in accordance with applicable Law and the terms of such Company Benefit Plan;, and no Company Benefit Plan has any unfunded Liabilities that have not been fully accrued. Except as set forth in Section 3.16(g), no assets of the Company or any of its Subsidiaries are allocated to or held in a “rabbi trust” or similar funding vehicle with respect to any Company Benefit Plan.
(iiih) There are, and during the last three years there is have been, no Action (including any investigation, audit or other administrative proceeding) 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 or, to the Knowledge of the Company, threatened, relating audits, investigations, claims, administrative proceedings or Legal Actions against, related to the Company Plans, any fiduciaries thereof with respect to their duties to the Company Plans or the assets on behalf of any of the trusts under any of the Company Plans (Benefit Plan, other than routine claims for benefits) nor are there facts or circumstances that exist that could reasonably give rise to any such Actions;benefits in the ordinary course.
(ivi) neither Each Company Benefit Plan that is subject to Section 409A of the Code has been administered in compliance with its terms and the operational and documentary requirements of Section 409A of the Code and all applicable regulatory guidance (including notices, rulings, and proposed and final regulations) thereunder. Neither the Company nor any of its Subsidiaries nor has any obligation to gross up, indemnify, or otherwise reimburse any individual for any excise taxes, interest, or penalties incurred under Section 409A of their Affiliates has incurred any direct or indirect liability under ERISA or the Code in connection with the termination of, withdrawal from or failure to fund, any Company Plan or other retirement plan or arrangement, and no fact or event exists that would reasonably be expected to give rise to any such liability; andCode.
(vj) the Company and its Subsidiaries do not maintain any Company Plan that is a “group health plan” (Except as such term is defined set forth in this Agreement or on Section 5000(b)(13.16(j) of the Code) that has not been administered and operated in all respects in compliance with the applicable requirements of Section 601 of ERISA and Section 4980B(b) of the CodeCompany Disclosure Schedule, and the Company and its Subsidiaries are not subject to any liability, including additional contributions, fines, penalties or loss of Tax deductions, as a result of such administration and operation; and
(d) None of the Company Plans provides for payment of a benefit, the increase of a benefit amount, the payment of a contingent benefit, the acceleration of a payment or the vesting of a benefit determined or occasioned, in whole or in part, by reason of neither the execution and delivery of this Agreement or nor the consummation of the transactions contemplated hereby Offer or the Merger Transactions will (either alone or in conjunction combination with another event) (i) entitle any other event). None current or former employee, officer, director or individual service provider of the Company Plans or any other plan agreement of its Subsidiaries to any severance, retention, or arrangement in effect immediately prior to the Closing could change of control payment or similar compensation or benefit or result separately or in the aggregate forgiveness of indebtedness with respect to any such Person, (ii) accelerate the time of payment, vesting or exercisability or increase the amount or value of compensation or benefits for any such employee, officer, director or individual service provider, (iii) trigger the funding of or setting aside of assets for (through a grantor trust or otherwise) any compensation or benefits, (iv) otherwise give rise to any material obligation or Liability pursuant to any of the Company Benefit Plans, or (v) result in connection with any breach or violation of, or a default under, any Company Benefit Plan
(k) Except as set forth in Section 3.16(k) of the transactions contemplated by Company Disclosure Schedule, neither the execution and delivery of this Agreement nor the consummation of the Offer or the Merger Transactions (either alone or in conjunction with any other event) will result in the any payment of or benefit to any Person which would constitute an “excess parachute payment” (within the meaning of Section 280G of the Code) or not be deductible under Section 280G of the Code.
(el) Each Company Plan that is a “nonqualified deferred compensation plan” within the meaning of Except as set forth in Section 409A(d)(13.16(l) of the Code has complied in form and operation with Company Disclosure Schedule, neither the requirements Company nor any of Section 409A of the Code. No current or former employeeits Subsidiaries is a party to, director or other service provider is entitled to any gross-up, make-whole or other additional payment from nor does the Company or any of its Subsidiaries in respect of have any Tax (including Federalobligation under, state, local or foreign income, any Company Benefit Plan to compensate any Person for excise or other Taxes (including Taxes imposed under payable pursuant to Section 409A and 4999 of the Code.
(m) Each Company Benefit Plan can be amended, terminated or otherwise discontinued on or after the Effective Time in accordance with its terms without material Liabilities to Parent, Company or any of its Subsidiaries other than ordinary administrative expenses typically incurred in a termination event. Neither the Company nor any of its Subsidiaries has a contract, plan or commitment, whether legally binding or not, to create any additional Company Benefit Plan, or any plan, agreement or arrangement that would be a Company Benefit Plan if in existence on the date hereof, or except to the extent required by this Agreement or applicable Law, to amend, modify or terminate any Company Benefit Plan.
(n) The Compensation Committee of the Company Board (the “Compensation Committee”) has (i) prior to the date of this Agreement, duly and unanimously adopted resolutions approving (A) any employment compensation or severance benefit arrangement pursuant to which consideration is payable to any current or future officer, director or employee of the Company or any of its Subsidiaries, (B) the treatment of Company Equity Awards in accordance with the terms of this Agreement and the applicable equity plan, and (C) the terms of Section 2.3 of this Agreement and any other term of this Agreement which provides for consideration payable to any current or future officer, director or employee of the Company or any of its Subsidiaries (each, a “Compensation Arrangement”) as an “employment compensation, severance or other employee benefit arrangement” within the meaning of Rule 14d-10(d)(2) under the Exchange Act, which resolutions have not been rescinded, modified or withdrawn in any way, and (ii) taken all other actions necessary or advisable to satisfy the requirements of the non-exclusive safe harbor with respect to such Compensation Arrangement in accordance with Rule 14d-10(d)(2) under the Exchange Act (the approvals and actions referenced in clauses (i) and (ii) above, the “Compensation Arrangement Approvals”). The Compensation Committee is (and was, at each time it acted as described in this Section 3.16(n)) or interest or penalty related composed solely of “independent directors” in accordance with the requirements of Rule 14d-10(d)(2) under the Exchange Act and the instructions thereto.
Appears in 1 contract
Benefit Plans. (a) Section 3.11(a) of the Company Disclosure Letter sets forth a true and complete list, as of the date hereof, of each “Each employee benefit plan” (plan within the meaning of section Section 3(3) of the Employee Retirement Income Security Act of 1974 (“ERISA”))ERISA and any other bonus, “multiemployer plan” (within the meaning of ERISA section 3(37)) and all stock purchaseincentive, stock optionequity, phantom stock or other equity-based plandeferred compensation, severancemedical, employmentlife insurance, collective bargainingdisability, change-in-controlaccident, fringe benefit, bonusloan, incentiveseverance, deferred compensation and all other employee benefit and compensation plans, agreements, programs, policies employment or other arrangementsbenefit plan, whether program, arrangement maintained by the Company and/or any of its Subsidiaries 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), whether formal or informal, written or oral, legally binding or not, under which any current or former employee, director or consultant of the Company or its Subsidiaries any such Subsidiary contributes (or any of their dependents) has any present or future right to compensation or benefits or the Company or its Subsidiaries has had or has any present or future liability obligation to contribute), is a party or with respect to which it is otherwise bound any potential liability may be borne by the Company or any of its Subsidiaries (collectively, the “Company Benefit Plans”). With respect to each Company Plan, the Company has made available to Parent a true and complete copy thereof and, to the extent applicable: (i) any related trust agreement or other funding instrument, (ii) the most recent determination letter is listed on Schedule 4.18 of the Internal Revenue Service (the “IRS”), if applicable, (iii) any summary plan description and other written communications (or a description of any oral communications) by the Company or its Subsidiaries to their employees concerning the extent of the benefits provided under a Company Plan, and (iv) for the two most recent years (A) the Form 5500 and attached schedules, (B) audited financial statements, (C) actuarial valuation reports and (D) attorney’s response to an auditor’s request for information.
(b) Disclosure Schedule. No Company Benefit Plan is subject to Title IV of ERISA or Section 412 of the Code, no Company Plan is a multiemployer plan (an “employee pension benefit plan” within the meaning of Section 3(37) ERISA. In the past six years, none of ERISA)the Company, and neither any of its Subsidiaries, or any ERISA Affiliate of the Company nor or of any member of its Controlled Group (defined as such Subsidiary, has maintained, contributed to or had any organization which is a member of a controlled group of organizations within the meaning of Code Sections 414(b), (c), (m) or (o)) has any liability (direct or contingent) obligation with respect to, and has never incurred any liability to (director or contingenti) with respect to, any employee benefit a plan subject to Title IV of ERISA. No Company Plan provides health or other welfare benefits to former employees , (ii) any “multiemployer plan” (as defined in Section 4001(a)(3) of the Company or its Subsidiaries other than health continuation coverage pursuant to COBRA.
(c) With respect to the Company Plans, except to the extent that the inaccuracy of any of the representations set forth in this paragraph (cERISA), individually or in the aggregate, has not been and would not reasonably be expected to be material to the Company and its Subsidiaries, taken as a whole:
(iiii) each Company any single plan maintained by more than one employer. Each Benefit Plan has been established operated in compliance with applicable Law and has been administered and operated in accordance with its terms and in compliance with the applicable provisions of applicable Lawterms. There are no actions, including ERISA and the Codesuits, and all contributions required to be made under the terms of any Company Plan have been timely made;
(ii) each Company Plan intended to be qualified under Section 401(a) of the Code has received a favorable determination, advisory claims or opinion letter, as applicable, from the IRS that it is so qualified and nothing has occurred that would reasonably be expected to cause the loss of such qualified status of such Company Plan;
(iii) there is no Action (including any investigation, audit or other administrative proceeding) by the Department of Labor, the Pension Benefit Guaranty Corporation, the IRS or any other Governmental Entity or by any plan participant or beneficiary disputes pending, or or, to the Knowledge of the CompanySellers, threatened, relating anticipated or expected to the Company Plans, any fiduciaries thereof be asserted against or with respect to their duties to the Company Plans any Benefit Plan or the assets of any of the trusts under any of the Company Plans such plan (other than routine claims for benefits) nor are there facts or circumstances that exist that could reasonably give rise benefits and appeals of denied routine claims). True and complete copies of all Benefit Plans and, if applicable with respect to any such Actions;
(iv) neither the Company nor its Subsidiaries nor any of their Affiliates has incurred any direct or indirect liability under ERISA or the Code in connection with the termination of, withdrawal from or failure to fundBenefit Plans, any Company Plan trust instruments or other retirement funding arrangements, insurance contracts, most recent determination or opinion letters, summary plan descriptions, Forms 5500 for the three (3) most recent plan years and descriptions of any non-written Benefit Plans have been made available to Purchaser or arrangement, and no fact or event exists that would reasonably be expected to give rise to any such liability; and
(v) the Company and its Subsidiaries do not maintain any Company Plan that is a “group health plan” (as such term is defined in Section 5000(b)(1) of the Code) that has not been administered and operated in all respects in compliance with the applicable requirements of Section 601 of ERISA and Section 4980B(b) of the Code, and the Company and its Subsidiaries are not subject to any liability, including additional contributions, fines, penalties or loss of Tax deductions, as a result of such administration and operation; and
(d) None of the Company Plans provides for payment of a benefit, the increase of a benefit amount, the payment of a contingent benefit, the acceleration of a payment or the vesting of a benefit determined or occasioned, in whole or in part, by reason of the execution of this Agreement or the counsel. The consummation of the transactions contemplated hereby (Contemplated Transactions will not, either alone or in conjunction combination with any other event). None , result in any compensation becoming due, increase the amount of compensation or benefits due, or accelerate the Company Plans time of payment or any other plan agreement or arrangement in effect immediately prior to the Closing could result separately or in the aggregate in connection with the transactions contemplated by this Agreement (either alone or in conjunction with any other event) in the payment vesting of any “excess parachute payment” within the meaning of Section 280G of the Code.
(e) Each Company Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A(d)(1) of the Code has complied in form and operation with the requirements of Section 409A of the Code. No or benefits, to any current or former employee, manager or director of the Company, any Subsidiary of the Company, or other service provider is entitled to any gross-up, make-whole or other additional payment from ERISA Affiliate of the Company or any of its Subsidiaries in respect of any Tax (including Federal, state, local or foreign income, excise or other Taxes (including Taxes imposed under Section 409A and 4999 of the Code)) or interest or penalty related theretosuch Subsidiary.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Fortune Brands Home & Security, Inc.)
Benefit Plans. (a) Section 3.11(a4.11(a) of the Company Disclosure Letter sets forth Schedule contains a true complete and complete list, as accurate list of each Plan (including each of the date hereofExisting Employment Agreements) that the Company, its Subsidiaries, or any of each “employee benefit plan” (within their ERISA Affiliates sponsors or maintains, or under which the meaning Company, its Subsidiaries, or any of section 3(3) of the Employee Retirement Income Security Act of 1974 (“ERISA”))their ERISA Affiliates, “multiemployer plan” (within the meaning of ERISA section 3(37)) and all stock purchase, stock option, phantom stock has any liability or other equity-based plan, severance, employment, collective bargaining, change-in-control, fringe benefit, bonus, incentive, deferred compensation and all other employee benefit and compensation plans, agreements, programs, policies or other arrangementsobligation, whether direct 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 indirect, and whether contingent or otherwise), whether formal for the benefit of, or informalrelating to, written or oral, legally binding or not, under which any current present or former employee, officer, consultant, leased employee, independent contractor, or non-employee director or consultant of the Company or its Subsidiaries (or any of their dependents) has any present , survivors, or future right to compensation or benefits or the Company or its Subsidiaries has had or has any present or future liability or with respect to which it is otherwise bound beneficiaries (collectively, the “Company Plans”). With respect The Company has made available or delivered to the Partnership (or will make available or deliver at the Partnership’s request) (i) a true, correct and complete copy of each Company Plan, including, but not limited to, and formal and informal amendments thereto (and, to the extent the Company has made available Plan is unwritten, an accurate description); (ii) any related trust agreement, insurance policy, services agreement, or other funding instrument with respect to Parent any Company Plans; (iii) true and complete copies of the most recent employee handbooks or similar documents describing such Company Plans; (iv) all non-routine communications received from or sent to the IRS, the Pension Benefit Guaranty Corporation or the U.S. Department of Labor with respect to any Company Plans; (v) a true and complete copy thereof and, of each most recently filed Form 5500 (including all attached schedules) for each Company Plan (where a Form 5500 is required to be filed with respect to such Company Plan) since the extent applicable: Applicable Date; (ivi) any related trust agreement true and complete copies of the current summary plan descriptions and summaries of material modifications with respect to Company Plans (where Applicable Law requires such a summary plan description or other funding instrument, summaries of material modifications); (iivii) the most recent determination letter of the Internal Revenue Service (the “IRS”), if applicable, (iii) any summary plan description and other written communications (or a description of any oral communications) by the Company or its Subsidiaries to their employees concerning the extent of the benefits provided under a Company Plan, and (iv) for the two most recent years (A) the Form 5500 and attached schedules, (B) audited financial statements, (C) actuarial valuation reports and (D) attorney’s response to an auditor’s request for information.
(b) No Company Plan is subject to Title IV of ERISA or Section 412 of the Code, no Company Plan is a multiemployer plan (within the meaning of Section 3(37) of ERISA), and neither the Company nor any member of its Controlled Group (defined as any organization which is a member of a controlled group of organizations within the meaning of Code Sections 414(b), (c), (m) or (o)) has any liability (direct or contingent) with respect to, and has never incurred any liability (director or contingent) with respect to, any employee benefit plan subject to Title IV of ERISA. No Company Plan provides health or other welfare benefits to former employees of the Company or its Subsidiaries other than health continuation coverage pursuant to COBRA.
(c) With respect to the Company Plans, except to the extent that the inaccuracy of any of the representations set forth in this paragraph (c), individually or in the aggregate, has not been and would not reasonably be expected to be material to the Company and its Subsidiaries, taken as a whole:
(i) each Company Plan has been established and administered in accordance with its terms and in compliance with the applicable provisions of applicable Law, including ERISA and the Code, and all contributions required to be made under the terms of any Company Plan have been timely made;
(ii) each Company Plan intended to be qualified under Section 401(a) of the Code has received a favorable IRS determination, advisory or opinion letter, as applicable, from the IRS that it is so qualified and nothing has occurred that would reasonably be expected to cause the loss of such qualified status of such letter for each Company Plan;
(iii) there is no Action (including any investigation, audit or other administrative proceeding) 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 the Company, threatened, relating to the Company Plans, any fiduciaries thereof Plan with respect to their duties which the IRS makes such determinations or advisory or opinion letters; (viii) all material reports submitted within the preceding three (3) years by third-party administrators, actuaries, investment managers, consultants or other independent contractors with respect to Company Plans; and (ix) all memoranda, minutes, resolutions and similar documents describing the manner in which each Company Plan is or has been administered or describing corrections to the Company Plans or the assets of any of the trusts under any of the 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;
(iv) neither the Company nor its Subsidiaries nor any of their Affiliates has incurred any direct or indirect liability under ERISA or the Code in connection with the termination of, withdrawal from or failure to fund, any Company Plan or other retirement plan or arrangement, and no fact or event exists that would reasonably be expected to give rise to any such liability; and
(v) the Company and its Subsidiaries do not maintain any Company Plan that is a “group health plan” (as such term is defined in Section 5000(b)(1) of the Code) that has not been administered and operated in all respects in compliance with the applicable requirements of Section 601 of ERISA and Section 4980B(b) of the Code, and the Company and its Subsidiaries are not subject to any liability, including additional contributions, fines, penalties or loss of Tax deductions, as a result of such administration and operation; and
(d) None of the Company Plans provides for payment of a benefit, the increase of a benefit amount, the payment of a contingent benefit, the acceleration of a payment or the 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 hereby (either alone or in conjunction with any other event). None of the Company Plans or any other plan agreement or arrangement in effect immediately prior to the Closing could result separately or in the aggregate in connection with the transactions contemplated by this Agreement (either alone or in conjunction with any other event) in the payment of any “excess parachute payment” within the meaning of Section 280G of the CodePlan.
(e) Each Company Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A(d)(1) of the Code has complied in form and operation with the requirements of Section 409A of the Code. No current or former employee, director or other service provider is entitled to any gross-up, make-whole or other additional payment from the Company or any of its Subsidiaries in respect of any Tax (including Federal, state, local or foreign income, excise or other Taxes (including Taxes imposed under Section 409A and 4999 of the Code)) or interest or penalty related thereto.
Appears in 1 contract
Samples: Securities Exchange Agreement (Arcadia Biosciences, Inc.)
Benefit Plans. (a) Section 3.11(aSchedule 4.1.15(a) of lists each Plan. Except as may be necessary to comply with a Legal Requirement, the Company Disclosure Letter sets forth does not have a true and complete list, as of the date hereof, of each “employee benefit plan” (within the meaning of section 3(3) of the Employee Retirement Income Security Act of 1974 (“ERISA”)), “multiemployer plan” (within the meaning of ERISA section 3(37)) and all stock purchase, stock option, phantom stock or other equity-based plan, severance, employment, collective bargaining, 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 or required in the future as a result of the transactions contemplated by this Agreement or otherwise), whether formal or informal, written or oral, legally binding commitment to create any additional Plan, to modify or notchange any existing Plan, under which or to terminate any existing Plan that would affect any current or former employee, director or consultant employee of the Company. No Company Plans are defined benefit plans, (as defined in Section 3(35) of ERISA) or its Subsidiaries multiemployer plans (or any as defined in Section 4001(a)(3) of their dependents) has any present or future right to compensation or benefits or the Company or its Subsidiaries has had or has any present or future liability or with respect to which it is otherwise bound (collectively, the “Company Plans”ERISA). With respect The Company has made available to the Buyer (i) true and complete copies of each Plan (including all amendments thereto), (ii) any trust agreement and contracts or insurance policies relating to each Company Plan, the Company has made available to Parent a true and complete copy thereof and, to the extent applicable: (i) any related trust agreement or other funding instrument, (iiiii) the most recent determination letter of the Internal Revenue Service (the “IRS”), if applicable, (iii) any summary plan description and other written communications (or a description of any oral communications) by the Company or its Subsidiaries to their employees concerning the extent of the benefits provided under a Company for each Plan, and (iv) for the two most recent years (A) the Form 5500 and attached schedules, (B) audited financial statements, (C) actuarial valuation reports and (D) attorney’s response to an auditor’s request for information.
(b) No The form of each Pension Plan and Welfare Plan is in material compliance with the applicable terms of ERISA, the Code and other applicable Legal Requirements and such Plans have been operated in material compliance with such applicable Legal Requirements and the written Plan documents. The Company has complied in all material respects with all provisions, rules, regulations and legislation relating to funding requirements for each Company Plan and there exist no unpaid funding liabilities which would be required to be accrued under GAAP except to the extent such liabilities have been accrued in the Financial Statements. Each Company Plan has been duly authorized by the board of directors and shareholders of the Company to the extent required under applicable Legal Requirements. Neither the Company, nor, to the Knowledge of the Seller, any fiduciary of a Pension Plan has materially violated the requirements of Section 404 of ERISA. All required reports with respect to the Pension Plans and Welfare Plans have been (when required) timely filed with the IRS, the U.S. Department of Labor or other applicable Governmental Body. No Pension Plan or Welfare Plan is currently under audit or review by any Governmental Body and, to the Knowledge of the Seller, no such audit or review has been Threatened. No charge, complaint or Proceeding with respect to any Pension Plan or Welfare Plan or the administration or the investment of the assets of any such Plan (except those routinely submitted in the ordinary course of Plan administration) is pending or, to the Knowledge of the Seller, Threatened against any such Plan, nor has the Company received written notice by any Governmental Body of any intention to commence an audit or review or to bring a charge, complaint or Proceeding.
(c) The Company has or will have made prior to the Closing Date all required contributions and paid in full all required insurance premiums and other required payments with regard to the Plans for policy or Plan years or other applicable periods ending on or before the Closing Date to the extent due or owing on or before the Closing Date or will have accrued the same on the Final Pricing Statement.
(d) The Company has never maintained, sponsored, participated in or contributed to, or has any liability with respect to, any Pension Plan which is subject to Part 3 of Subtitle B of Title I of ERISA, Title IV of ERISA or Section 412 of the Code. The Company has never contributed to, no Company Plan is a multiemployer plan (within the meaning of Section 3(37) of ERISA), and neither the Company nor any member of its Controlled Group (defined as any organization which is a member of a controlled group of organizations within the meaning of Code Sections 414(b), (c), (m) or (o)) has any actual or potential liability (direct or contingent) with respect to, and has never incurred any liability (director or contingent) with respect to, any employee benefit plan subject to Title IV “multiemployer plan” as defined in Section 4001 (a) (3) of ERISA. No Company Plan provides health or other welfare benefits to former employees of the Company or its Subsidiaries other than health continuation coverage pursuant to COBRA.
(ce) With respect to the Company Plans, except to the extent that the inaccuracy of any of the representations Except as set forth in this paragraph (con Schedule 4.1.15(e), individually or in the aggregate, has not been and would not reasonably be expected to be material to the Company and its Subsidiaries, taken as a whole:
(i) each Company Plan has been established and administered in accordance with its terms and in compliance with the applicable provisions of applicable Law, including ERISA and the Code, and all contributions required to be made under the terms of any Company Plan have been timely made;
(ii) each Company Plan intended to be qualified under Section 401(a) of the Code has received a favorable determination, advisory or opinion letter, as applicable, from the IRS that it is so qualified and nothing has occurred that would reasonably be expected to cause the loss of such qualified status of such Company Plan;
(iii) there is no Action (including any investigation, audit or other administrative proceeding) 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 the Company, threatened, relating to the Company Plans, any fiduciaries thereof with respect to their duties to the Company Plans or the assets of any of the trusts under any of the 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;
(iv) neither the Company nor its Subsidiaries nor any of their Affiliates has incurred any direct or indirect liability under ERISA or the Code in connection with the termination of, withdrawal from or failure to fund, any Company Plan or other retirement plan or arrangement, and no fact or event exists that would reasonably be expected to give rise to any such liability; and
(v) the Company and its Subsidiaries do not maintain any Company Plan that is a “group health plan” (as such term is defined in Section 5000(b)(1) of the Code) that has not been administered and operated in all respects in compliance with the applicable requirements of Section 601 of ERISA and Section 4980B(b) of the Code, and the Company and its Subsidiaries are not subject to any liability, including additional contributions, fines, penalties or loss of Tax deductions, as a result of such administration and operation; and
(d) None of the Company Plans provides for payment of a benefit, the increase of a benefit amount, the payment of a contingent benefit, the acceleration of a payment or the 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 hereby by this Agreement will not (either alone i) entitle any Person currently or in conjunction with any other event). None of formerly providing services to the Company Plans to severance pay or any other plan agreement payment or arrangement in effect immediately prior form of compensation or benefit upon termination of services, or (ii) accelerate the time of payment or vesting or increase the amount of compensation due to any such current or former service provider.
(f) Except as required under applicable Legal Requirements, neither Seller nor the Closing could result separately or in the aggregate in connection with the transactions contemplated by this Agreement (either alone or in conjunction with Company has made any other event) in the payment promises of any “excess parachute payment” welfare benefit plans within the meaning of Section 280G 3(1) of ERISA that provides for continuing benefits or coverage for any former employees or retirees of the CodeCompany including, but not limited to retiree medical benefits.
(e) Each Company Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A(d)(1) of the Code has complied in form and operation with the requirements of Section 409A of the Code. No current or former employee, director or other service provider is entitled to any gross-up, make-whole or other additional payment from the Company or any of its Subsidiaries in respect of any Tax (including Federal, state, local or foreign income, excise or other Taxes (including Taxes imposed under Section 409A and 4999 of the Code)) or interest or penalty related thereto.
Appears in 1 contract
Samples: Stock Purchase Agreement
Benefit Plans. (a) Section 3.11(aSchedule 3.19(a) of the Company Disclosure Letter Schedule sets forth a true and complete list, as of the date hereof, of each “all material employee benefit plan” plans, programs, policies, practices, agreements and arrangements (within the meaning of section including, but not limited to, all plans described in Section 3(3) of the Employee Retirement Income Security Act of 1974 1974, as amended (“ERISA”)), “multiemployer plan” (within ) maintained or contributed to by the meaning Company for the benefit of ERISA section 3(37)) and all stock purchase, stock option, phantom stock or other equity-based plan, severance, employment, collective bargaining, 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 or required in the future as a result of the transactions contemplated by this Agreement or otherwise), whether formal or informal, written or oral, legally binding or not, under which any its current or former employeeofficers, director employees, directors or consultant of the Company or its Subsidiaries (or any of their dependents) has any present or future right to compensation or benefits or the Company or its Subsidiaries has had or has any present or future liability independent contractors, or with respect to which it is otherwise bound (collectively, the “Company Plans”). With respect to each Company Plan, the Company has made available (or reasonably could be expected to Parent a true and complete copy thereof and, to the extent applicable: (ihave) any related trust agreement obligation or other funding instrumentliability (including, (ii) the most recent determination letter of the Internal Revenue Service (the “IRS”)but not limited to, if applicable, (iii) any summary plan description and other written communications (or a description of any oral communications) by the Company or its Subsidiaries to their employees concerning the extent of the benefits provided liabilities arising from affiliation under a Company Plan, and (iv) for the two most recent years (A) the Form 5500 and attached schedules, (B) audited financial statements, (C) actuarial valuation reports and (D) attorney’s response to an auditor’s request for information.
(b) No Company Plan is subject to Title IV of ERISA or Section 412 of the Code, no Company Plan is a multiemployer plan (within the meaning of Section 3(37) of ERISA), and neither the Company nor any member of its Controlled Group (defined as any organization which is a member of a controlled group of organizations within the meaning of Code Sections 414(b), (c), (m) or (o) of the Code, or Section 4001 of ERISA) (each, a “Benefit Plan” and collectively, the “Benefit Plans”). Except as disclosed on Schedule 3.19 of the Disclosure Schedule, there has been no amendment or announcement (written or oral) by the Company relating to a change in participation or coverage under, any Benefit Plan that could reasonably be expected to materially increase the expense of maintaining such Benefit Plan above the level of expense incurred with respect thereto for the most recent fiscal year included in the financial statements provided pursuant to Section 3.7. Each Benefit Plan can be terminated by the Company at any time without material liability or expense (other than for any benefits accrued thereunder at the time of such termination). None of the rights of the Company under any Benefit Plan will be impaired in any way by the consummation of the transactions contemplated by this Agreement.
(b) With respect to each Benefit Plan, the Company has made available to the Buyer (to the extent applicable to such Benefit Plan) true and complete copies of: (i) all documents embodying such Benefit Plan (including all amendments thereto) or, if such Benefit Plan is not in writing, a written description of such Benefit Plan; (ii) the last three annual reports (Form 5500 series and all schedules and financial statements attached thereto) filed with respect to such Benefit Plan; (iii) the most recent summary plan description, and all summaries of material modifications related thereto, distributed with respect to such Benefit Plan; (iv) all contracts and agreements (and any liability amendments thereto) relating to such Benefit Plan, including, without limitation, all trust agreements, investment management agreements, annuity contracts, insurance contracts, bonds, indemnification agreements and service provider agreements; (direct or contingentv) the most recent determination letter issued by the Internal Revenue Service (the “IRS”) with respect toto such Benefit Plan; (vii) all written communications to employees or beneficiaries, and has never incurred generally (A) in which the provisions of such Benefit Plan, as set forth or described therein, differ materially from such provisions as set forth or described in the other information or materials furnished under this subsection (b), or (B) relating to the amendment, creation or termination of such Benefit Plan, or to an increase or decrease in benefits, acceleration of payments or vesting or any liability (director or contingent) other event with respect toto such Benefit Plan that could result in a material liability to the Company; (viii) all material correspondence to or from any governmental entity or agency relating to such Benefit Plan sent or received in the past three (3) years; and (ix) all coverage, any employee benefit nondiscrimination, top heavy and Code Section 415 tests performed with respect to such Benefit Plan for the three most recently completed plan subject to Title IV of ERISA. No Company Plan provides health or other welfare benefits to former employees of the Company or its Subsidiaries other than health continuation coverage pursuant to COBRAyears.
(c) With Except as set forth on Schedule 3.19 of the Disclosure Schedule, with respect to the Company Plans, except to the extent that the inaccuracy of any of the representations set forth in this paragraph (c), individually or in the aggregate, has not been and would not reasonably be expected to be material to the Company and its Subsidiaries, taken as a whole:
each Benefit Plan: (i) each Company such Benefit Plan is, and at all times since inception has been established been, maintained, operated, administered and administered funded in accordance with its terms and all Legal Requirements in compliance all material respects; (ii) the Company and each other Person (including, without limitation, all fiduciaries) have, at all times and in all material respects, properly performed all of their duties and obligations under or with the applicable provisions of applicable Lawrespect to such Benefit Plan; (iii) all returns, including ERISA reports, notices, statements and the Code, and all contributions other disclosures relating to such Benefit Plan required to be made under the terms of filed with any Company governmental authority or distributed to any participant therein have been properly prepared and duly filed or distributed in a timely manner; (iv) all contributions, premiums and other payments due or required to be paid to (or with respect to) such Benefit Plan have been timely made;paid, or, if not yet due, have been accrued as a liability on the Balance Sheet; (v) no breach of fiduciary duty has occurred with respect to any Benefit Plan(vi) no “prohibited transaction” (within the meaning of either Section 4975(c) of the Code or Section 406 or 407 of ERISA) has occurred with respect to such Benefit Plan; and (vii) the Company has not incurred, and there exists no condition or set of circumstances in connection with which the Company or Buyer could incur, directly or indirectly, any material liability or expense (except for routine contributions and benefit payments) under ERISA, the Code or any other applicable Legal Requirement or pursuant to any indemnification or similar agreement, with respect to such Benefit Plan.
(iid) each Company Each Benefit Plan that is intended to be qualified under Section 401(a) of the Code has received a favorable determination, advisory or opinion letter, as applicable, from the IRS that it is so qualified and nothing has occurred that would reasonably be expected each trust and group annuity contract related thereto is exempt from taxation under Section 501(a) of the Code. Each such Benefit Plan (i) is the subject of an unrevoked favorable determination letter from the IRS with respect to cause the loss of such Benefit Plan’s qualified status under the Code, as amended by that legislation commonly referred to as “GUST” and “EGTRRA” and all subsequent legislation, (ii) 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 Company Plan;
a letter from the IRS, or (iii) there is no Action (including any investigationa prototype plan or volume submitter plan entitled, audit under applicable IRS guidance, to rely on the favorable opinion or other administrative proceeding) advisory letter issued by the Department IRS to the sponsor of Laborsuch prototype or volume submitter plan. To the Company’s knowledge, nothing has occurred, or is reasonably expected by the Pension Company or any Seller to occur, that could adversely affect the qualification or exemption of any such Benefit Guaranty CorporationPlan or any trust or group annuity contract related thereto. The Company has been informed by the relevant third party administrators that no such Benefit Plan is a “top-heavy plan,” as defined in Section 416 of the Code.
(e) The Company is not, and has not within the IRS past six (6) years been, a member of (i) a controlled group of corporations, within the meaning of Section 414(b) of the Code, (ii) a group of trades or businesses under common control, within the meaning of Section 414(c) of the Code, (iii) an affiliated service group, within the meaning of Section 414(m) of the Code, or (iv) any other group of Persons treated as a single employer under Section 414(o) of the Code.
(f) The Company does not sponsor, maintain or contribute to, and has not previously sponsored, maintained or contributed to (or been obligated to sponsor, maintain or contribute to), (a) a “multiemployer plan,” as defined in Section 3(37) or 4001(a)(3) of ERISA or 414(f) of the Code, (b) a multiple employer plan within the meaning of Section 4063 or 4064 of ERISA or Section 413(c) of the Code, (c) an employee benefit plan that is subject to Part 3 of Subtitle B of Title I of ERISA, Title IV of ERISA or Section 412 of the Code, or (d) a “multiple employer welfare arrangement,” as defined in Section 3(40) of ERISA.
(g) Neither the Company nor any Benefit Plan provides or has any obligation to provide (or contribute toward the cost of) life insurance, medical benefits or any other Governmental Entity or by any plan participant or beneficiary pending, or to welfare benefits (within the Knowledge meaning of the Company, threatened, relating to the Company Plans, any fiduciaries thereof Section 3(1) of ERISA) with respect to their duties to the Company Plans any current or the assets of any of the trusts under any former officer, employee, director, agent or independent contractor of the Company Plans after his or her retirement or other termination of service for any reason, except to the extent required by Part 6 of Subtitle B of Title I of ERISA and Section 4980B(f) of the Code.
(h) There are no lawsuits or claims (other than routine claims for benefits) nor are pending or, to the knowledge of the Company, threatened with respect to (or against the assets of) any Benefit Plan, nor, to the Company’s knowledge is there facts or circumstances that exist that could reasonably give rise to a basis for any such Actions;lawsuit or claim. The Company has not been notified that any Benefit Plan is currently under investigation, audit or review, directly or indirectly, by the IRS, the Department of Labor or any other government authority.
(ivi) neither Schedule 3.19 of the Company nor its Subsidiaries nor any Disclosure Schedule sets forth a complete and accurate list of their Affiliates has incurred any direct or indirect liability under ERISA or the Code in connection with the termination of, withdrawal from or failure to fund, any Company Plan or other retirement plan or arrangement, and no fact or event exists that would reasonably be expected to give rise to any such liability; and
(v) the Company and its Subsidiaries do not maintain any Company Plan that is a all “group health plannonqualified deferred compensation plans” (as such term is defined in within the meaning of Section 5000(b)(1) 409A of the Code) that sponsored or maintained by the Company (or to which the Company is (or was) a party), and in which any of their current or former officers, employees, agents, directors or independent contractors participated at any time since January 1, 2005. Each such plan has not been operated and administered and operated since January 1, 2005 in all respects in good faith compliance with the applicable requirements of Section 601 of ERISA and Section 4980B(b) 409A of the CodeCode and any guidance issued by the United States Treasury Department or the IRS thereunder (including, without limitation, IRS Notice 2005-1, the proposed Treasury regulations issued on September 29, 2005, and the Company and its Subsidiaries are not subject final Treasury regulations issued on April 10, 2007), to the extent applicable to such plan. No such plan has been “materially modified” (within the meaning of IRS Notice 2005-1 or Proposed Treasury Regulation Section 1.409A-6(a)(4)) at any liabilitytime after October 3, including additional contributions, fines, penalties or loss of Tax deductions, as a result of such administration and operation; and2004.
(dj) None Except as set forth on Schedule 3.19 of the Company Plans provides for payment of a benefitDisclosure Schedule, the increase of a benefit amount, the payment of a contingent benefit, the acceleration of a payment or the vesting of a benefit determined or occasioned, in whole or in part, by reason of neither the execution of this Agreement or nor the consummation of the transactions contemplated hereby by this Agreement will (either alone i) result in any benefit or in conjunction with right becoming established or increased, or accelerate the time of payment or vesting, under any other event). None Benefit Plan, (ii) increase the amount of the Company Plans compensation due to any individual or forgive any indebtedness owed by any individual, or (iii) entitle any individual to severance pay, unemployment compensation or any other plan agreement or arrangement in effect immediately prior to the Closing could result separately or in the aggregate in connection with the transactions contemplated by this Agreement (either alone or in conjunction with any other event) in the payment of any “excess parachute payment” within the meaning of Section 280G of the Code.
(e) Each Company Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A(d)(1) of the Code has complied in form and operation with the requirements of Section 409A of the Code. No current or former employee, director or other service provider is entitled to any gross-up, make-whole or other additional payment from the Company Company, Seller or any of its Subsidiaries in respect of any Tax (including Federal, state, local or foreign income, excise or other Taxes (including Taxes imposed under Section 409A and 4999 of the Code)) or interest or penalty related theretoBenefit Plan.
Appears in 1 contract
Samples: Stock Purchase Agreement (Esterline Technologies Corp)
Benefit Plans. (a) Section 3.11(a4.12(a) of the Company Disclosure Letter sets forth contains a true and complete list, as list of the date hereof, of each material Company Plan. “Company Plan” means each “employee benefit plan” (within the meaning of section 3(3) of the Employee Retirement Income Security Act of 1974 1974, as amended (“ERISA”), whether or not subject to ERISA), “multiemployer planplans” (within the meaning of ERISA section 3(37)) ), and all plans, contracts, programs, agreements or arrangements (including any employment contracts) providing for stock purchase, stock option, phantom stock or other equity-based planplans, severance, employment, collective bargaining, change-in-control, fringe benefit, bonus, incentive, deferred compensation compensation, supplemental retirement, health, life, or disability insurance, dependent care and all other employee benefit and compensation plans, agreements, programs, policies or other programs and 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), whether formal or informal, written or oral, legally binding or not, under which any current or former employee, director or consultant of the Company or its Subsidiaries (or any of their dependents) has any present or future right to compensation or benefits or the Company or its Subsidiaries has had sponsors or maintains, is making contributions to or has any present or future liability or obligation (contingent or otherwise) or with respect to which it is otherwise bound (collectivelybound. The Company has provided or made available to Parent a current, accurate and complete copy of each Company Plan, or if such Company Plan is not in written form, a written summary of all of the “material terms of such Company Plans”)Plan. With respect to each Company Plan, the Company has furnished or made available to Parent a true current, accurate and complete copy thereof andof, to the extent applicable: (i) any related trust agreement or other funding instrument, (ii) the most recent determination letter of the Internal Revenue Service or any successor agency (the “IRS”), if applicable, (iii) any summary plan description description, summary of material modifications, and other similar material written communications (or a written description of any material oral communications) by to the employees of the Company or its Subsidiaries to their employees concerning the extent of the benefits provided under a Company Plan, and (iv) for the two three most recent years years, (A) the Form 5500 and attached schedules, (B) audited financial statements, (C) actuarial valuation reports and (D) attorney’s response to an auditor’s request for information.
(b) No Company Plan is subject to Title IV of ERISA or Section 412 of the Code, no Company Plan is a multiemployer plan (within the meaning of Section 3(37) of ERISA), and neither the Company nor any member of its Controlled Group (defined as any organization which is a member of a controlled group of organizations within the meaning of Code Sections 414(b), (c), (m) or (o)) has any liability (direct or contingent) with respect to, and has never incurred any liability (director or contingent) with respect to, any employee benefit plan subject to Title IV of ERISA. No Company Plan provides health or other welfare benefits to former employees of the Company or its Subsidiaries other than health continuation coverage pursuant to COBRA.
(c) With respect to the Company Plans, except to the extent that the inaccuracy of any of the representations set forth in this paragraph (c), individually or in the aggregate, has not been and would not reasonably be expected to be material to the Company and its Subsidiaries, taken as a whole:
(i) each Company Plan has been established and administered in accordance with its terms and in compliance with the applicable provisions of applicable Law, including ERISA and the Code, and all contributions required to be made under the terms of any Company Plan have been timely made;
(ii) each Company Plan intended to be qualified under Section 401(a) of the Code has received a favorable determination, advisory or opinion letter, as applicable, from the IRS that it is so qualified and nothing has occurred that would reasonably be expected to cause the loss of such qualified status of such Company Plan;
(iii) there is no Action (including any investigation, audit or other administrative proceeding) 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 the Company, threatened, relating to the Company Plans, any fiduciaries thereof with respect to their duties to the Company Plans or the assets of any of the trusts under any of the 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;
(iv) neither the Company nor its Subsidiaries nor any of their Affiliates has incurred any direct or indirect liability under ERISA or the Code in connection with the termination of, withdrawal from or failure to fund, any Company Plan or other retirement plan or arrangement, and no fact or event exists that would reasonably be expected to give rise to any such liability; and
(v) the Company and its Subsidiaries do not maintain any Company Plan that is a “group health plan” (as such term is defined in Section 5000(b)(1) of the Code) that has not been administered and operated in all respects in compliance with the applicable requirements of Section 601 of ERISA and Section 4980B(b) of the Code, and the Company and its Subsidiaries are not subject to any liability, including additional contributions, fines, penalties or loss of Tax deductions, as a result of such administration and operation; and
(d) None of the Company Plans provides for payment of a benefit, the increase of a benefit amount, the payment of a contingent benefit, the acceleration of a payment or the 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 hereby (either alone or in conjunction non-routine correspondence with any other event). None of the Company Plans or any other plan agreement or arrangement in effect immediately prior to the Closing could result separately or in the aggregate in connection with the transactions contemplated by this Agreement (either alone or in conjunction with any other event) in the payment of any “excess parachute payment” within the meaning of Section 280G of the CodeGovernmental Entity since January 1, 2020.
(e) Each Company Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A(d)(1) of the Code has complied in form and operation with the requirements of Section 409A of the Code. No current or former employee, director or other service provider is entitled to any gross-up, make-whole or other additional payment from the Company or any of its Subsidiaries in respect of any Tax (including Federal, state, local or foreign income, excise or other Taxes (including Taxes imposed under Section 409A and 4999 of the Code)) or interest or penalty related thereto.
Appears in 1 contract
Benefit Plans. (a) Section 3.11(a) of the The Company Disclosure Letter sets forth has provided to Parent a true and complete list, as of the date hereof, list of each “employee benefit plan” (within the meaning of section Section 3(3) of the Employee Retirement Income Security Act of 1974 1974, as amended (“ERISA”)), “multiemployer plan” (within the meaning of ERISA section 3(37)) and all stock purchase, stock option, phantom stock or other equity-based plan, severance, employment, collective bargaining, 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 or required in the future as a result of the transactions contemplated by this Agreement or otherwise), whether formal or informal, written or oralwritten, legally binding or not, under that is currently in effect, was maintained since December 31, 2004 or which any current has been approved before the date of the Original Agreement but is not yet effective, for the benefit of (i) directors or former employee, director or consultant employees of the Company or its Subsidiaries any other persons performing services for the Company, (ii) former directors or any employees of their dependents) has any present or future right to compensation or benefits or the Company or its Subsidiaries has had any other persons formerly performing services for the Company, or has any present (iii) beneficiaries of anyone described in (i) or future liability or with respect (ii). All such plans, agreements, programs, policies and arrangements shall be collectively referred to which it is otherwise bound (collectively, as the “Company Plans”). .” With respect to each Company Plan, the Company has furnished or made available to Parent a true current, accurate and complete copy thereof and, to the extent applicable: (i) any related trust agreement or other funding instrument, (ii) the most recent determination letter of the Internal Revenue Service (the “IRS”), if applicable, (iii) any summary plan description with each summary of material modifications thereto, if any, employee handbooks and other written communications (or a description of any oral communications) by the Company or its Subsidiaries to their employees concerning the extent of the benefits provided under a Company Plan, Plan and (iv) for the two three (3) most recent years (A) the Form 5500 Forms 5500, 941 and 1041 and attached schedules, (B) audited financial statements, and (C) actuarial valuation reports and (D) attorney’s response to an auditor’s request for informationreports.
(b) No Each Company Plan intended to be qualified under Section 401(a) of the Code has received a favorable determination, advisory and/or opinion letter, as applicable, from the IRS that it is subject so qualified and, to Title IV the knowledge of the Company, nothing has occurred since the date of such letter that would reasonably be expected to cause the loss of such qualified status of such Company Plan or cause the imposition of any penalty or Tax liability.
(c) The Company is not liable for, and the Company will not be liable for, any liability of any “ERISA Affiliate” (hereby defined to include any trade or business, whether or not incorporated, other than the Company, which has employees who are or have been at any date of determination occurring within the preceding six (6) years, treated pursuant to Section 4001(a)(14) of ERISA and/or Section 414 of the Code as employees of a single employer which includes the Company) including predecessors thereof) with regard to any Company Plan maintained, sponsored or contributed to by an ERISA Affiliate (if a like definition of Company Plan were applicable to the ERISA Affiliate in the same manner as it applies to the Company) (each such Company Plan for an ERISA Affiliate being an “ERISA Affiliate Plan”), including, without limitation: (i) withdrawal liability arising under Title IV, Subtitle E, Part 1 of ERISA; (ii) liabilities to the Pension Benefit Guaranty Corporation (“PBGC”); (iii) liabilities under Section 412 of the CodeCode or Section 302(a)(2) of ERISA; (iv) liabilities resulting from the failure on the part of the Company, no any ERISA Affiliate, each Company Plan is a multiemployer plan or each Company Plan “sponsor” or “administrator” (within the meaning of Section 3(16) of ERISA) to comply in all respects with the applicable requirements of Section 4980B of the Code and Section 601 et seq. of ERISA; or (v) liabilities resulting from an ERISA Affiliate Plan’s failure to satisfy the reporting and disclosure requirements of ERISA and the Code.
(d) Neither the Company nor any ERISA Affiliate has ever maintained or contributed to a multiemployer plan (as defined in Section 3(37) of ERISA), and neither the Company nor any member of its Controlled Group (defined as any organization which is a member of a controlled group of organizations within the meaning of Code Sections 414(b), (c), (m) or (o)) has any liability (direct or contingent) with respect to, and has never incurred any liability (director or contingent) with respect to, any employee benefit plan subject to Title IV of ERISA. No Company Plan provides health or other welfare benefits to former employees of the Company or its Subsidiaries other than health continuation coverage pursuant to COBRA.
(ce) With respect to the Company Plans, except to as disclosed in the extent that the inaccuracy of any Company SEC Documents or in Section 4.12 of the representations set forth in this paragraph (c), individually or in the aggregate, has not been and would not reasonably be expected to be material to the Company and its Subsidiaries, taken as a wholeDisclosure Letter:
(i) each Company Plan has been established and administered in accordance with its terms and in material compliance with the applicable provisions of applicable Law, including ERISA and the Code, and no reportable event, as defined in Section 4043 of ERISA, no prohibited transaction, as described in Section 406 of ERISA or Section 4975 of the Code, or accumulated funding deficiency, as defined in Section 302 of ERISA and 412 of the Code, has occurred with respect to any Company Plan, and all contributions required to be made under the terms of any Company Plan have been timely made;
(ii) each Company Plan intended to be qualified under Section 401(a) the knowledge of the Code has received a favorable determinationCompany, advisory or opinion letter, as applicable, from the IRS that it is so qualified and nothing has occurred that would reasonably be expected to cause the loss of such qualified status of such Company Plan;
(iii) there is no Action (including any investigation, audit or other administrative proceeding) by the Department of Labor, the Pension Benefit Guaranty CorporationPBGC, the IRS or any other Governmental Entity or by any plan participant or beneficiary pending, threatened in writing, or to the Knowledge of the Company, threatened, relating to the Company Plans, any fiduciaries thereof with respect to their duties to the Company Plans or the assets of any of the trusts under any of the Company Plans (other than routine claims for benefits) nor nor, to the knowledge of the Company, are there facts or circumstances that exist that could reasonably give rise to any such Actions;
(iv) neither the Company nor its Subsidiaries nor any of their Affiliates has incurred any direct or indirect liability under ERISA or the Code in connection with the termination of, withdrawal from or failure to fund, any Company Plan or other retirement plan or arrangement, and no fact or event exists that would reasonably be expected to give rise to any such liability; and
(viii) the Company and its Subsidiaries do not maintain any if a Company Plan purports to be a voluntary employees’ beneficiary association (“VEBA”), a request for a determination letter for the VEBA has been submitted to and approved by the IRS that the VEBA is a “group health plan” (as such term is defined in exempt from federal income tax under Section 5000(b)(1) of the Code) that has not been administered and operated in all respects in compliance with the applicable requirements of Section 601 of ERISA and Section 4980B(b501(c)(9) of the Code, and nothing has occurred or is expected to occur that caused or could cause the loss of such qualification or exemption or the imposition of any tax, interest or penalty with respect thereto.
(f) Neither the Company nor any ERISA Affiliate has any obligation to contribute to or provide benefits pursuant to, and its Subsidiaries are not subject to has no other liability of any liabilitykind with respect to, including additional contributions(i) a "multiple employer welfare arrangement" (MEWA) (within the meaning of Section 3(40) of ERISA), fines, penalties or loss (ii) a "plan maintained by more than one employer" (within the meaning of Tax deductions, as a result Section 413(c) of such administration and operation; andthe Code).
(dg) None of the Company Plans provides provide for payment of a benefit, the increase of a benefit amount, the payment of a contingent benefit, benefit or the acceleration of a the payment or the 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 hereby hereby. No amount or benefit that could be received by any "disqualified individual" (either alone or as defined in conjunction Treasury Regulation Section 1.280G-1) with any other event). None of respect to the Company Plans or any other plan agreement or arrangement in effect immediately prior to the Closing could result separately or in the aggregate Subsidiary in connection with the transactions contemplated by this Agreement (either alone or in conjunction combination with any other event, and whether pursuant to a Company Plan or otherwise) in the payment of any “could be characterized as an "excess parachute payment” within the meaning of " (as defined in Section 280G 280G(b)(1) of the Code).
(eh) No Company Plan provides for post-employment welfare benefits except to the extent required by Section 4980B of the Code or applicable state Law.
(i) Each Company Plan that is a “nonqualified deferred compensation plan” within the meaning of subject to Section 409A(d)(1) 409A of the Code has complied in form and operation with the requirements of Section 409A of the Code. No current or former employee, director or other service provider individual is entitled to any gross-up, make-whole or other additional payment from the Company or any of its Subsidiaries in respect of any Tax (including Federalfederal, state, local or foreign income, excise or other Taxes (including Taxes imposed under Section 409A and 4999 of the Code)) or interest or penalty related thereto.
(j) Each Company Plan that is subject to Section 1862(b)(1) of the SSA has been operated in compliance with the secondary payor requirements of Section 1862 thereof.
Appears in 1 contract
Benefit Plans. (a) Section 3.11(a3.13(a) of the Company Seller Disclosure Letter sets forth a true and complete list, as of the date hereofof this Agreement, of each “employee benefit plan” (within material Benefit Plan and identifies with an asterisk each such Benefit Plan that is an Assumed Benefit Plan and identifies the meaning of section 3(3) of the Employee Retirement Income Security Act of 1974 (“ERISA”)), “multiemployer plan” (within the meaning of ERISA section 3(37)) and all stock purchase, stock option, phantom stock or other equity-based plan, severance, employment, collective bargaining, 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 jurisdiction in effect or required in the future as a result of the transactions contemplated by this Agreement or otherwise), whether formal or informal, written or oral, legally binding or not, under which any current or former employee, director or consultant of the Company or its Subsidiaries (or any of their dependents) has any present or future right to compensation or benefits or the Company or its Subsidiaries has had or has any present or future liability or with respect to which it each material Benefit Plan is otherwise bound (collectively, the “Company Plans”)maintained. With respect to each Company material Seller Benefit Plan, the Company Seller has delivered or made available to Parent a true Purchaser, as of the date of this Agreement and complete copy thereof and, to the extent applicable: , true and complete copies of (i) the plan document, including any related trust agreement amendment thereto, or other funding instrumentin the case of any unwritten material Seller Benefit Plan, a description of the material terms thereof, and (ii) the most recent determination letter IRS determination, opinion, or advisory letter. With respect to each material Assumed Benefit Plan, Seller has delivered or made available to Purchaser, as of the Internal Revenue Service (date of this Agreement and to the “IRS”), if extent applicable, true and complete copies of (iiiA) the plan document, including any amendment thereto, or in the case of any unwritten material Assumed Benefit Plan, a description of the material terms thereof, (B) the most recent IRS determination, opinion, or advisory letter, (C) the three most recently filed annual reports on Form 5500 or similar reports, statements, or information returns required to be filed with or delivered to any Governmental Entity, (D) each related trust, insurance, annuity, or other funding or administrative Contract, (E) the most recent actuarial or other valuation reports, (F) the most recent summary plan description and other written communications subsequent summaries of material modifications thereto, (or a description of any oral communicationsG) by annual testing results (including with respect to coverage and nondiscrimination testing) for the Company or its Subsidiaries to their employees concerning the extent of the benefits provided under a Company Planthree (3) most recently completed plan years, and (ivH) for all non-routine correspondence received from or provided to any Governmental Entity within the two most recent years past six (A6) years, in each case, except to the Form 5500 extent prohibited under applicable Privacy and attached schedules, (B) audited financial statements, (C) actuarial valuation reports and (D) attorney’s response Security Laws or any other obligations to an auditor’s request for informationmaintain the confidentiality of such information under applicable Law.
(b) No Except as set forth on Section 3.13(b) of the Seller Disclosure Letter, no Benefit Plan is, and neither any Group Company Plan nor Seller or any ERISA Affiliate, has in the past six (6) years maintained, sponsored, contributed to, or been required to contribute to, or has (or has had within the past six (6) years) any Liability with respect to, a plan that is subject to Title IV of ERISA or the minimum funding requirements of Section 412 of the Code or Section 302 of ERISA (each, a “Pension Plan”) or a “multiemployer plan” (as defined in Section 3(37) of ERISA). No Assumed Benefit Plan is a Pension Plan. With respect to each Pension Plan, in the past six (6) years: (i) no proceeding has been initiated to terminate such Pension Plan, (ii) there has been no “reportable event” (as such term is defined in Section 4043(b) of ERISA), (iii) each required installment or any other payment required under Section 412 of the Code or Section 303 of ERISA has been made before the applicable due date, (iv) all amounts due to the Pension Benefit Guaranty Corporation (the “PBGC”) pursuant to Section 4007 of ERISA have been timely paid, (v) neither Seller, any Group Company, nor any ERISA Affiliate has, or has received notice from the PBGC of, any outstanding Liability under Sections 4062, 4063, or 4064 of ERISA to the PBGC or to a trustee appointed under Section 4042 of ERISA, and (vi) there has not been incurred any “accumulated funding deficiency” (as defined in Section 302 of ERISA and Section 412 of the Code). With respect to each Pension Plan, (A) no Company Liability, including any Liability under Title IV or Section 302 of ERISA, has been incurred by Seller, any Group Company, or any ERISA Affiliate which has been, is, or could reasonably be expected to become, a Liability of any Group Company, (B) no outstanding “withdrawal liability” (as defined in Section 4201 or 4204 of ERISA, as applicable) exists, and (C) the transactions contemplated by the Agreement will not result in the imposition of any such withdrawal liability on Seller, any Group Company, or any ERISA Affiliate.
(c) No Assumed Benefit Plan is a multiemployer plan or is funded by, and no Group Company has ever maintained, contributed to, been required to contribute to, or had any Liability with respect to, any (i) “multiple employer welfare arrangement” (as defined in Section 3(40)(A) of ERISA), (ii) “voluntary employees’ beneficiary association” (within the meaning of Section 3(37501(c)(9) of ERISAthe Code), and neither the Company nor any member of its Controlled Group (defined as any organization which is a member of a controlled group of organizations within the meaning of Code Sections 414(b), (c), (m) or (o)iii) has any liability (direct or contingent) with respect to, and has never incurred any liability (director or contingent) with respect to, any employee self-insured welfare benefit plan subject to Title IV of ERISA. No Company Plan provides health or other welfare benefits to former employees of the Company or its Subsidiaries other than health continuation coverage pursuant to COBRAarrangement.
(cd) With respect to the Company PlansExcept for any routine, except to the extent that the inaccuracy of any of the representations set forth in this paragraph (c)uncontested claim for benefits or as would not, individually or in the aggregate, has not been and would not reasonably be expected to be material to the Company and its SubsidiariesBusiness, taken there is no Proceeding pending or, to the Knowledge of Seller, threatened relating to any Benefit Plan. No Assumed Benefit Plan (or, except as a whole:could not reasonably be expected to result in Liability to any Group Company, any Seller Benefit Plan) has been the subject of an audit, investigation, inquiry, or examination by any Governmental Entity.
(e) Except as set forth on Section 3.13(e) of the Seller Disclosure Letter, no Benefit Plan provides or is obligated to provide health, medical or other welfare benefits after retirement or other termination of employment (other than for continuation coverage required by COBRA) to any current or former Employee of the Business. Except as would not, individually or in the aggregate, reasonably be expected to be material to the Business, (i) no Group Company has any Liability on account of a violation of COBRA (including by an ERISA Affiliate), (ii) the Group Companies have complied in all respects with the Patient Protection and Affordable Care Act, including, to the extent applicable, the employer shared responsibility provisions relating to the offer of “affordable” health coverage that provides “minimum essential coverage” to all “full-time” employees (as those terms are defined in Section 4980H of the Code and related regulations) and the applicable employer information reporting requirements under Code Section 6055 and Code Section 6056 and related regulations, and (iii) the Group Companies have complied in all respects with the security requirements of the Health Insurance Portability and Accountability Act of 1996.
(f) Except as would not, individually or in the aggregate, reasonably be expected to be material to the Business, each Company Benefit Plan and its related trust, insurance contract or other funding vehicle has been established adopted and maintained and administered in all material respects in accordance with its terms and in compliance with ERISA, the applicable provisions of applicable Law, including ERISA and the Code, Code and all contributions required other applicable Laws. Except as could not reasonably be expected to be made under result in material Liability to the terms of any Company Business, Seller and its Affiliates are in compliance with ERISA, the Code and all other Laws applicable to the Benefit Plans. Each Benefit Plan have been timely made;
(ii) each Company Plan that is intended to be qualified under Section 401(a) of the Code has received a favorable determination, advisory or opinion letter, as applicable, from the IRS that it is so qualified and has received a currently effective favorable determination letter from the IRS, or is entitled to rely on a currently effective opinion or advisory letter from the IRS, to the effect that such Benefit Plan is so qualified, and nothing has occurred that could adversely affect such qualified status. Each Assumed Benefit Plan (and each Seller Benefit Plan, as it relates to any current or former Service Provider of the Business) that is subject to Section 409A of the Code has been administered, operated, and maintained in all material respects according to the requirements of Section 409A of the Code, and no amount under any such Benefit Plan has been subject to any Tax as a result of a failure to comply with Section 409A of the Code.
(g) Except as would not, individually or in the aggregate, reasonably be expected to be material to the Business, (i) all benefits, contributions, premiums, and distributions with respect to each Benefit Plan have been (A) timely paid in accordance with the terms of such Benefit Plan and applicable Law, to the extent required or due under such terms or applicable Law, or (B) paid or appropriately accrued, to the extent required by GAAP and not yet required or due under such terms or applicable Law, (ii) no event has occurred with respect to any Benefit Plan, that has resulted in, or could reasonably be expected to result in, a Tax imposed on any Group Company under Chapter 43 of the Code , and (iii) to the Knowledge of Seller, no fiduciary (within the meaning of Section 3(21) of ERISA) of any Benefit Plan subject to Part 4 of Subtitle B of Title I of ERISA has committed a breach of fiduciary duty with respect to such Benefit Plan that would reasonably be expected to cause the loss of such qualified status of such subject any Group Company Plan;
to any Liability. There has been no non-exempt “prohibited transaction” (iii) there is no Action (including any investigation, audit or other administrative proceeding) 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 as defined in Section 4975 of the Company, threatened, relating to the Company Plans, any fiduciaries thereof Code) with respect to their duties to the any Benefit Plan, for which any Group Company Plans or the assets of any of the trusts under any of the 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;
(iv) neither the Company nor its Subsidiaries nor any of their Affiliates has incurred any direct or indirect liability under ERISA or the Code in connection with the termination of, withdrawal from or failure to fund, any Company Plan or other retirement plan or arrangement, and no fact or event exists that would reasonably be expected to give rise have any material Liability.
(h) Each Assumed Benefit Plan and, except as could not reasonably be expected to result in Liability to any such liability; and
Group Company, each Seller Benefit Plan, in each case maintained outside of the United States (v) the Company each, a “Non-U.S. Benefit Plan”), that is required to be registered has been registered and its Subsidiaries do not maintain any Company has been maintained in all material respects in good standing with applicable Governmental Entities. Each Non-U.S. Benefit Plan that is intended to qualify for special tax treatment has been determined to qualify for such treatment in all material respects. All material filings required to be made to any Governmental Entity or instrumentality with respect to any Non-U.S. Benefit Plan have been timely made. Each Non-U.S. Benefit Plan that is intended to be funded or book-reserved is fully funded or book-reserved, as appropriate, based upon reasonable actuarial assumptions, and Seller and its Affiliates have complied with applicable obligations under applicable non-U.S. Law with respect to such Non-U.S. Benefit Plans, except as would not, individually or in the aggregate, reasonably be expected to be material to the Business. No Non-U.S. Benefit Plan is a “group health registered pension plan”, “retirement compensation arrangement” (or “salary deferral arrangement”, as such term is terms are defined in the Income Tax Act (Canada). No Non-U.S. Benefit Plan provides, or is obligated to provide, health, medical or other welfare benefits after retirement or other termination of employment to any current or former Employee of the Business primarily located in Canada.
(i) Except as set forth on Section 5000(b)(13.13(i) of the Code) that has not been administered and operated in all respects in compliance with the applicable requirements of Section 601 of ERISA and Section 4980B(b) of the CodeSeller Disclosure Letter, and the Company and its Subsidiaries are not subject to any liability, including additional contributions, fines, penalties or loss of Tax deductions, as a result of such administration and operation; and
(d) None of the Company Plans provides for payment of a benefit, the increase of a benefit amount, the payment of a contingent benefit, the acceleration of a payment or the vesting of a benefit determined or occasioned, in whole or in part, by reason of neither the execution and delivery of this Agreement or nor the consummation of the transactions contemplated hereby Transactions will (either alone or in conjunction combination with any other event). None of the Company Plans or any other plan agreement or arrangement in effect immediately prior to the Closing could result separately or in the aggregate in connection with the transactions , except as expressly contemplated by this Agreement, (i) entitle any current or former Service Provider of the Business to, or require any Group Company to provide, any compensation or benefit under any Benefit Plans, (ii) accelerate the time of payment or vesting, or trigger any payment or funding, of any compensation or benefits in respect of any current or former Service Provider of the Business or under any Benefit Plan, or (iii) result in any breach or violation of, default under, or limit on any Group Company’s right to amend, modify or terminate, any Assumed Benefit Plan. Neither the execution and delivery of this Agreement nor the consummation of the Transactions will (either alone or in conjunction combination with any other event) result in the payment of any “excess parachute payment” (within the meaning of Section 280G of the Code.
(e) Each Company Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A(d)(1) becoming due to any current or former Service Provider of the Code has complied in form and operation with the requirements of Section 409A of the CodeBusiness or payable by any Group Company. No current or former employee, director or other service provider Service Provider of the Business is entitled to any gross-up, make-whole or other additional payment receive from the Company Seller or any of its Subsidiaries Affiliates, and no Group Company has any obligation to provide to any Person, any gross-up or additional payment in respect of any Tax (including Federal, state, local or foreign income, excise or other Taxes (including the Taxes imposed required under Section 409A and or Section 4999 of the Code).
(j) No Seller Benefit Plan will transfer, in whole or interest in part, to any Group Company in connection with the Transactions. Upon and following the Principal Closing, Purchaser and its Affiliates will have no Liability under or penalty related theretowith respect to any Seller Benefit Plan.
Appears in 1 contract
Benefit Plans. (a) Section 3.11(a) of the Company Disclosure Letter sets forth a true and complete list, as of the date hereof, of With respect to each “employee benefit plan” (within the meaning of section ”, as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974 1974, as amended (“ERISA”)), “multiemployer plan” (within the meaning of ERISA section 3(37)) and all any stock purchase, stock option, phantom stock or other equity-based plan, severance, employment, collective bargaining, change-in-control, educational assistance, adoption assistance, fringe benefit, collective bargaining, bonus, incentive, deferred compensation and all other material 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 or required in the future as a result of the transactions contemplated by this Agreement or otherwise)ERISA, whether formal or informal, written oral or oralwritten, legally binding or notnot (all the foregoing being herein called “Benefit Plans”), under which any current employee, director, independent contractor or former employee, director or consultant independent contractor of the Company or its Subsidiaries (Peoples or any of their dependents) its Subsidiaries, or any spouse or dependent of any such employee or director, has any present or future right to compensation benefits, and which is (or benefits was prior to its termination) sponsored, maintained or the Company contributed to by Peoples or any of its Subsidiaries has had or under which Peoples or any of its Subsidiaries has any present or future liability or with respect to which it is otherwise bound (collectively, the “Company Peoples Benefit Plans”). With respect to each Company Plan, the Company Peoples has made available to Parent provided Summit a true true, correct and complete copy thereof and, to the extent applicable: of (i) any the most recent annual report (Form 5500) filed with the IRS and, where applicable, the related trust agreement or other funding instrumentaudited financial statements thereof, (ii) such Peoples Benefit Plan Document and all related amendments thereto, (iii) each trust agreement, summary employee booklets or handbooks, annuity contracts, insurance policies or any other funding instruments (“Funding Arrangements”) relating to such Peoples Benefit Plan and all related amendments thereto, (iv) the most recent summary plan description for each Peoples 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 written summaries distributed to participants, if any, (v) any current contracts with independent contractors (including actuaries, investment managers, etc.) that relate to any Peoples Benefit Plan, and (vi) the most recent determination letter (or equivalent) issued by the IRS with respect to any Peoples Benefit Plan qualified under Section 401(a) of the Internal Revenue Service (the “IRS”), if applicable, (iii) Code. There are no unwritten amendments to any summary plan description and other written communications (or a description of any oral communications) by the Company or its Subsidiaries to their employees concerning the extent of the benefits provided under a Company Peoples Benefit Plan, and (iv) for the two most recent years (A) the Form 5500 and attached schedules, (B) audited financial statements, (C) actuarial valuation reports and (D) attorney’s response to an auditor’s request for information.
(b) No Company Except for the self-directed brokerage account feature of Peoples’ 401(k) Plan, no Peoples Benefit Plan is invested in or provides the opportunity for participants or beneficiaries therein to purchase or otherwise acquire any employer securities or employer real property (within the meaning of Section 407(d) of ERISA) or any option, warrant or other right to acquire such employer securities or any interest therein.
(c) All contributions (including, without limitations, all employer contributions, employee salary reduction contributions and all premiums or other payments (other than claims)) that are due and payable on or before the Closing Date have been timely paid to or made with respect to each Peoples Benefit Plan and, to the extent not presently payable, appropriate reserves have been established for the payment and properly accrued in accordance with customary accounting practices.
(d) Other than as disclosed on Peoples Disclosure Schedule 3.13(d), no Peoples Benefit Plan is subject to Title IV of ERISA or Section 412 of the Code, no Company Plan is a multiemployer defined benefit plan (within the meaning of Section 3(373(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). Other than as disclosed on Peoples Disclosure Schedule 3.13(d), and neither no Peoples Benefit Plan is subject to the Company nor any member of its Controlled Group (defined as any organization which is a member of a controlled group of organizations within the meaning funding standards of Code Sections 414(b), (c), (m) Section 412 or (o)) has any liability (direct 436 or contingent) with respect to, and has never incurred any liability (director or contingent) with respect to, any employee benefit plan subject to Title IV Section 302 of ERISA. No Company Plan provides health or other welfare benefits to former employees of the Company or its Subsidiaries other than health continuation coverage pursuant to COBRA.
(ce) With respect There have been no prohibited transactions (described under Section 406 of ERISA or Section 4975(c) of the Code), breaches of fiduciary duty or any other breaches or violations of any law by Peoples or any of its affiliates, officers, directors, agents or employees, applicable to the Company PlansPeoples Benefit Plans that would directly or indirectly subject Summit, except Peoples or any of their respective Subsidiaries to any material taxes, penalties or other liabilities, including any liability arising through indemnification.
(f) Each Peoples Benefit Plan that is represented to be qualified under Code Section 401(a) either has a favorable determination letter that covers all existing amendments up to and including the extent that Pension Protection Act of 2006, the inaccuracy HEART Act and WRERA or is an adoption of a prototype or volume submitter plan for which a favorable opinion letter has been issued up to and including the Pension Protection Act of 2006, the HEART Act and WRERA, on which Peoples or a Peoples Subsidiary is entitled to reliance equivalent to a determination letter, and, in either case, neither Peoples nor any Peoples Subsidiary has any obligation to adopt any amendments for which the remedial amendment period under Code Section 401(b) has expired, and Peoples is not aware of any circumstances likely to result in revocation of the representations set forth in this paragraph (c), individually any such favorable determination or in the aggregate, has not been and would not reasonably be expected inability to be material to the Company and its Subsidiaries, taken as a whole:
(i) each Company rely on any opinion letter. Each Peoples Benefit Plan has been established operated in compliance, in all material respects, with applicable law and administered in accordance with its terms and in compliance with any related trust is exempt from federal income tax under Section 501(a) of the applicable provisions of applicable LawCode and all reports, including ERISA descriptions and filings required by the Code, and all contributions required ERISA or any government agency with respect to be made under the terms of any Company each Peoples Benefit Plan have been timely made;and completely filed or distributed.
(iig) each Company Plan intended to be qualified under Section 401(a) of the Code has received a favorable determinationThere are no pending claims, advisory lawsuits or opinion letter, as applicable, from the IRS that it is so qualified and nothing has occurred that would reasonably be expected to cause the loss of such qualified status of such Company Plan;
(iii) there is no Action (including any investigation, audit or other administrative proceeding) 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 the Company, threatened, actions relating to the Company Plans, any fiduciaries thereof with respect to their duties to the Company Plans or the assets of any of the trusts under any of the Company Plans Peoples Benefit Plan (other than routine ordinary course claims for benefits) nor and, to the knowledge of Peoples none are there facts threatened.
(h) Except as disclosed on Peoples Disclosure Schedule 3.13(h), no written or circumstances that exist that could reasonably give rise oral representations have been made to any employee or former employee of Peoples or any of its Subsidiaries promising or guaranteeing any employer payment or funding for the continuation of medical, dental, life or disability coverage for such Actions;individual, their dependent, or any beneficiary for any period of time beyond termination of employment, except as required by Section 4980B of the Code or other applicable law, and at no expense to Peoples or any of its subsidiaries. Except as disclosed on Peoples Disclosure Schedule 3.13(h), and except respecting any acceleration of vesting or payment on termination or actual or deemed partial termination of any Benefit Plan, neither the Merger, nor subsequent events where consequences result solely as a result of both the occurrence of the subsequent event and the occurrence of the Merger, shall accelerate the time of payment or vesting, or increase the amount, of compensation due by Peoples or any of its Subsidiaries or any Peoples Benefit Plan to any employee, officer, former employee or former officer of Peoples or any of its Subsidiaries.
(ivi) neither The consummation of the Company transactions contemplated by this Agreement will not result in any entitlement to payment to any present or former employee or director of Peoples or any Subsidiary of Peoples of any money or other property, or acceleration of any rights or benefits, under any Peoples Benefit Plan or other contract or existing arrangement, except respecting any acceleration of vesting or payment on termination or actual or deemed partial termination of any Benefit Plan. Unless specifically disclosed on such schedule, no such payment will be nondeductible or subject to excise tax under Code Section 4999 or 280G, nor its Subsidiaries nor will Peoples, Summit or any of their Affiliates has incurred respective Subsidiaries be required to “gross up” or otherwise compensate any direct Person because of the limits contained in such Code sections.
(j) There are no surrender charges, penalties, or indirect liability under ERISA other costs or the Code in connection with the termination of, withdrawal from or failure to fundfees that would be imposed by any Person against Peoples, any Company Peoples Subsidiary, any Peoples Benefit Plan, or any other Person, including without limitation, any Peoples Benefit Plan participant or beneficiary as a result of the consummation of the transactions contemplated by this Agreement with respect to any insurance, annuity or investment contracts or other retirement plan or arrangement, and no fact or event exists that would reasonably be expected to give rise to similar investment held by any such liability; andPeoples Benefit Plan.
(vk) the Company and its Subsidiaries do not maintain any Company Each Peoples Benefit Plan that which is a “group health plan” (as such term is defined in Section 5000(b)(1the Code and ERISA) of the Code) that has not been administered and operated in compliance, in all respects in compliance material respects, with the applicable requirements Part 6 of Section 601 Subtitle B of Title 1 of ERISA and Section 4980B(b) Sections 4980B and 4980D of the CodeCode and any analogous state law. Each such plan is in compliance, in all material respects, with, and no such plan has been operated in a manner that would result in the Company incurrence of any material penalty to Peoples, the Surviving Entity or any of their respective Subsidiaries under those Sections of ERISA and the Code and under the Patient Protection and Affordable Care Act and its companion xxxx, the Health Care and Education Reconciliation Act of 2010, to the extent applicable.
(l) All obligations required to be performed by Peoples and its Subsidiaries under any Peoples Benefit Plan have been performed by them in all material respects and they are not subject in default under or in violation of any material provision of any Peoples Benefit Plan. To Peoples’ knowledge, no event has occurred that would constitute grounds for an enforcement action by any party against Peoples or any of its Subsidiaries under part 5 of Title I of ERISA under any Peoples Benefit Plan.
(m) Peoples and its Subsidiaries have current contracts with one or more insurance company(ies) for each of its Benefit Plans that provide coverage for health, dental, vision, life disability, survivor income benefits, or similar welfare benefit coverages relating to any liability, including additional contributions, fines, penalties or loss of Tax deductions, as a result of such administration and operation; and
(d) None of the Company Plans provides for payment of a benefit, the increase of a benefit amount, the payment of a contingent benefit, the acceleration of a payment or the 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 hereby (either alone or in conjunction with any other event)Peoples Benefit Plan. None of the Company such Benefit Plans is self-insured by Peoples or any other plan agreement funded by Peoples through or provided by Peoples to its employees under a voluntary employees beneficiary association (VEBA) or a multiple employer welfare arrangement in effect immediately prior to the Closing could result separately or in the aggregate in connection with the transactions contemplated by this Agreement (either alone or in conjunction with any other event) in the payment of any “excess parachute payment” within the meaning of Section 280G of the CodeMEWA).
(en) Each Company Except as set forth in Peoples Disclosure Schedule 3.13(n), Peoples or a Peoples Subsidiary may, at any time, amend or terminate any Peoples Benefit Plan that it sponsors or maintains and may withdraw from any Peoples Benefit Plan to which it contributes (but does not sponsor or maintain), without obtaining the consent of any third party, other than an insurance company in the case of any benefit underwritten by an insurance company, and without incurring any material liability except for unpaid premiums or contributions due for the pay period that includes the effective date of such amendment, withdrawal or termination.
(o) No Peoples Benefit Plan is a “nonqualified deferred compensation plan” within the meaning of plan that is subject to Code § 409A. No additional tax under Section 409A(d)(1409A(a)(1)(ii) of the Code has complied been or is reasonably expected to be incurred by a participant in form and operation with the requirements of Section 409A of the Code. No current or former employee, director any such Peoples Benefit Plan or other service provider is entitled contract, plan, program, agreement, or arrangement that has not been previously reported to any gross-up, make-whole or other additional payment from the Company or IRS by Peoples. Neither Peoples nor any of its Subsidiaries in respect is a party to, or otherwise obligated under, any contract, agreement, plan or arrangement that provides for the gross-up of any Tax (including Federal, state, local or foreign income, excise or other Taxes (including Taxes taxes imposed under by Section 409A and 4999 409A(a)(1)(ii) of the Code)) or interest or penalty related thereto.
Appears in 1 contract
Benefit Plans. (a) Section 3.11(a) of the Company Disclosure Letter sets forth Schedule 3.1.17 contains a true and complete list, as of the date hereof, list of each “employee benefit plan” Benefit Plan. The Company is not and has never been bound by or subject to a Pension Plan.
(within the meaning of section 3(3b) of the Employee Retirement Income Security Act of 1974 (“ERISA”)), “multiemployer plan” (within the meaning of ERISA section 3(37)) and all stock purchase, stock option, phantom stock The Company has no formal plan or other equity-based plan, severance, employment, collective bargaining, change-in-control, fringe benefit, bonus, incentive, deferred compensation and all other employee benefit and compensation plans, agreements, programs, policies or other arrangementscommitment, 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), whether formal or informal, written or oral, legally binding or not, under which to create any current additional Benefit Plan or to modify or change any existing Benefit Plan that would affect any Employee or former employeeemployee of or engaged by the Company, director except such modification or consultant of amendment as may be required to be made to secure the Company or its Subsidiaries (or any of their dependents) has any present or future right to compensation or benefits or the Company or its Subsidiaries has had or has any present or future liability or with respect to which it is otherwise bound (collectively, the “Company Plans”). With respect to each Company Plan, the Company has made available to Parent a true and complete copy thereof and, to the extent applicable: (i) any related trust agreement or other funding instrument, (ii) the most recent determination letter of the Internal Revenue Service (the “IRS”), if applicable, (iii) any summary plan description and other written communications (or a description continued registration of any oral communications) by the Company or its Subsidiaries to their employees concerning the extent of the benefits provided under a Company Plan, and (iv) for the two most recent years (A) the Form 5500 and attached schedules, (B) audited financial statements, (C) actuarial valuation reports and (D) attorney’s response to an auditor’s request for information.
(b) No Company existing Benefit Plan is subject to Title IV of ERISA or Section 412 of the Code, no Company Plan is a multiemployer plan (within the meaning of Section 3(37) of ERISA), and neither the Company nor any member of its Controlled Group (defined as any organization which is a member of a controlled group of organizations within the meaning of Code Sections 414(b), (c), (m) or (o)) has any liability (direct or contingent) with respect to, and has never incurred any liability (director or contingent) with respect to, any employee benefit plan subject to Title IV of ERISA. No Company Plan provides health or other welfare benefits to former employees of the Company or its Subsidiaries other than health continuation coverage pursuant to COBRAeach applicable Governmental Entity.
(c) With respect to each of the Company Benefit Plans, except the Shareholders have delivered to the extent that the inaccuracy Buyer or its agent true and complete copies of any each of the representations set forth in this paragraph (c), individually or in the aggregate, has not been and would not reasonably be expected to be material to the Company and its Subsidiaries, taken as a wholefollowing documents:
(i) each Company a copy of the document or documents establishing the current terms of the Benefit Plan has been established and administered in accordance with its terms and in compliance with the applicable provisions of applicable Law, (including ERISA and the Code, all prior amendments thereto and all contributions required to be made under the terms of any Company Plan have been timely madepredecessor documents and prior versions);
(ii) each Company Plan intended a copy of all material employee communications relating to be qualified under Section 401(a) of the Code has received a favorable determinationBenefit Plan, advisory whether or opinion letternot such communications have been, as applicableor are required to be, from the IRS that it is so qualified and nothing has occurred that would reasonably be expected to cause the loss of such qualified status of such Company Planfiled with any applicable Governmental Entity;
(iii) if the Benefit Plan is now or has at any time been funded through a trust, a copy of the current trust agreement (if applicable) and all prior trust agreements, including all amendments thereto, and the most recent financial statements and tax returns of the trust; and
(iv) if the Benefit Plan is funded through any third party funding arrangement other than a trust, a copy of the current agreement or policy governing that arrangement, including all amendments thereto, and the most recent financial information related to such arrangement.
(d) All assets held in any funding arrangement associated with a Benefit Plan have been held, invested and otherwise dealt with in compliance in all material respects with Applicable Law and the terms of the Benefit Plan and the associated funding arrangement.
(e) Neither the execution and delivery of this Agreement, the observance and performance by the Shareholders and the Buyer of their obligations under this Agreement or the Closing Documents nor the Closing will, in and of itself, accelerate the time of vesting or payment under any Benefit Plan, require any funding or securing of benefits under any Benefit Plan or increase the rights or entitlements of any Employee or former employee under any Benefit Plan.
(f) The financial statements or financial information related to each Benefit Plan that have been provided to the Buyer are complete and accurate in all material respects for the period indicated therein. There have been no material changes in any Benefit Plan that are not reflected for the full period reported on, in the financial statements or financial information.
(g) With respect to any Benefit Plan that is funded through an insurance policy, there is will be no Action (including liability of the Company as of the Closing Date under any investigationinsurance policy or any ancillary agreement thereto, audit whether in the nature of a retroactive rate adjustment, loss sharing arrangement or other administrative proceedingactual or contingent liability arising wholly or partially out of events occurring prior to the Closing Time.
(h) by the Department No Benefit Plan provides benefits beyond retirement or termination of Laboremployment.
(i) There are no outstanding, the Pension Benefit Guaranty Corporation, the IRS or any other Governmental Entity or by any plan participant or beneficiary pending, threatened or to the Knowledge of the Company, threatened, relating to the Company Plans, any fiduciaries thereof with anticipated claims by or in respect to their duties to the Company Plans or the assets of any of the trusts under Benefit Plans, including claims by or in respect of any of the Company Benefit Plans against any Person (other than routine claims for benefits) nor are there facts or circumstances that exist that could reasonably give rise to any such Actions;
(iv) neither the Company nor its Subsidiaries nor any of their Affiliates has incurred any direct or indirect liability under ERISA or the Code in connection with the termination of, withdrawal from or failure to fund, any Company Plan or other retirement plan or arrangement), and there exists no fact or event exists that would state of facts which could reasonably be expected to give rise to provide a valid basis for any such liability; and
(v) the Company and its Subsidiaries do not maintain any Company Plan that is a “group health plan” (as such term is defined in Section 5000(b)(1) of the Code) that has not been administered and operated in all respects in compliance with the applicable requirements of Section 601 of ERISA and Section 4980B(b) of the Code, and the Company and its Subsidiaries are not subject to any liability, including additional contributions, fines, penalties or loss of Tax deductions, as a result of such administration and operation; and
(d) None of the Company Plans provides for payment of a benefit, the increase of a benefit amount, the payment of a contingent benefit, the acceleration of a payment or the 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 hereby (either alone or in conjunction with any other event). None of the Company Plans or any other plan agreement or arrangement in effect immediately prior to the Closing could result separately or in the aggregate in connection with the transactions contemplated by this Agreement (either alone or in conjunction with any other event) in the payment of any “excess parachute payment” within the meaning of Section 280G of the Codeforegoing.
(e) Each Company Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A(d)(1) of the Code has complied in form and operation with the requirements of Section 409A of the Code. No current or former employee, director or other service provider is entitled to any gross-up, make-whole or other additional payment from the Company or any of its Subsidiaries in respect of any Tax (including Federal, state, local or foreign income, excise or other Taxes (including Taxes imposed under Section 409A and 4999 of the Code)) or interest or penalty related thereto.
Appears in 1 contract
Benefit Plans. (a) Section 3.11(a4.15(a) of the Company Seller Disclosure Letter sets forth Schedule contains a true and complete list, as list of the date hereof, of each all written “employee benefit planplans” (within the meaning of section as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974 (“ERISA”)), “multiemployer plan” (within the meaning of ERISA section 3(37)) and all stock purchaseother material employment, severance, change in control, retention, consulting, vacation benefits, retirement, post-retirement, bonus, stock option, phantom stock or other equity-based plan, severance, employment, collective bargaining, change-in-control, fringe benefit, bonus, incentive, deferred compensation and all other employee benefit and incentive compensation plans, agreements, programspolicies and programs or any other material compensatory and fringe benefits plans, policies and programs (excluding workers’ compensation, unemployment compensation and other government programs) (1) maintained or other arrangements, whether or not subject contributed 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), whether formal or informal, written or oral, legally binding or not, under which any current or former employee, director or consultant of the Company or its Subsidiaries any Company Subsidiary (or any of their dependents) has any present or future right to compensation or benefits or other than the Company or its Subsidiaries has had or has any present or future liability or with respect to which it is otherwise bound (collectivelyMultiemployer Plans, the “Company Plans”) or (2) maintained or contributed to by Seller or any of its Affiliates (other than the Company or any Company Subsidiary) for the benefit of current or former employees of the Company or any Company Subsidiary or any employee set forth in Section 8.07(a) of the Seller Disclosure Schedule (other than Multiemployer Plans, the “Seller Plans,” and collectively with the Company Plans, the “Benefit Plans”). Section 4.15(a) of the Seller Disclosure Schedule separately identifies the Company Plans and the Seller Plans.
(b) Seller has delivered the following documents to Buyer with respect to each Company Plan: (1) correct and complete copies of all documents embodying such Company Plan, (2) the most recent summary plan description together with the summary or summaries of material modifications thereto, if any, (3) all Internal Revenue Service or Department of Labor determination, opinion, notification and advisory letters, (4) the most recent annual report (Form Series 5500 and all schedules and financial statements attached thereto), if any, and (5) all material correspondence to or from any Governmental Entity received since June 18, 2014.
(c) Each Company Plan has been established, documented, and maintained in compliance in all material respects with, to the extent applicable to such plan, ERISA, the Code, and all Applicable Laws. Each Company Plan intended to be qualified under Section 401(a) of the Code and each related trust intended to qualify under Section 501(a) of the Code has obtained a currently effective favorable determination notification, advisory and/or opinion letter, as applicable, as to its qualified status (or the qualified status of the master or prototype form on which it is established) from the Internal Revenue Service, and no amendment to such Company Plan has been adopted since the date of such letter covering such Company Plan that would reasonably be expected to adversely affect such favorable determination. With respect to each Company Plan, the Company has made available to Parent a true and complete copy thereof and, to the extent applicable: (i) any related trust agreement in all material respects, no breaches of fiduciary duty or other funding instrumentfailures to act or comply in connection with the administration or investment of the assets of such Company Plan have occurred, (ii) no lien has been imposed under the most recent determination letter of the Internal Revenue Service (the “IRS”)Code, if applicableERISA or any other applicable law, and (iii) any summary plan description and other written communications (or a description of any oral communications) by the Company or its Subsidiaries to their employees concerning the extent of the benefits provided under a Company Plan, and (iv) for the two most recent years (A) the Form 5500 and attached schedules, (B) audited financial statements, (C) actuarial valuation reports and (D) attorney’s response to an auditor’s request for information.
(b) No Company Plan is subject to Title IV of ERISA or Section 412 of the Code, there have been no Company Plan is a multiemployer plan non-exempt prohibited transactions (within the meaning of Section 3(37406 of ERISA or Section 4975 of the Code) of ERISA), and neither with respect to any Company Plan that could reasonably be expected to result in material liability.
(d) Neither the Company nor any member of its Controlled Group (defined as Company Subsidiaries nor any organization entity which is considered a member of a controlled group of organizations within “single employer” with the meaning of Code Sections Company or any Company Subsidiaries under Section 414(b), (c), (m) or (o)) of the Code (an “ERISA Affiliate”) maintains or has an obligation to contribute, and neither the Company nor any Company Subsidiary otherwise has any liability (direct contingent or contingent) otherwise), with respect toto (i) a plan described in Section 413 of the Code, and has never incurred any liability (director or contingentii) with respect to, any employee benefit a plan subject to Title IV of ERISA or (iii) a plan subject to the minimum funding standards of Section 412 of the Code or Section 302 of ERISA. Neither the Company nor any Company Subsidiaries has incurred any liability or obligation, with respect to any “employee benefit plan” (as defined in Section 3(3) of ERISA) that is not sponsored by it by reason of being treated as a single employer with any ERISA Affiliate (other than the Company and the Company Subsidiaries). No Proceedings, audits, or investigations (other than routine benefit claims) are pending or, to the knowledge of Seller, threatened against or relating to any Company Plan provides health Plan, or any fiduciary thereof. In all material respects, all payments, benefits, contributions (including all employer contributions and employee salary reduction contributions) and premiums related to each Company Plan, including all bonuses, benefits and other compensation due to or on behalf of any employees or other welfare benefits service providers, have been timely paid or made in accordance with the requirements of Applicable Law or, to former employees of the Company or its Subsidiaries other than health continuation coverage pursuant to COBRAextent not yet due, properly accrued in accordance with GAAP. No Benefit Plan has any unfunded liabilities that have not been properly accrued in accordance with GAAP.
(ce) With respect to the Company Plans, except to the extent that the inaccuracy of any of the representations Except as set forth in this paragraph (c), individually or in the aggregate, has not been and would not reasonably be expected to be material to the Company and its Subsidiaries, taken as a whole:
(i) each Company Plan has been established and administered in accordance with its terms and in compliance with the applicable provisions of applicable Law, including ERISA and the Code, and all contributions required to be made under the terms of any Company Plan have been timely made;
(ii) each Company Plan intended to be qualified under Section 401(a4.15(e) of the Code has received a favorable determinationSeller Disclosure Schedule, advisory or opinion letter, as applicable, from the IRS that it is so qualified and nothing has occurred that would reasonably be expected to cause the loss of such qualified status of such Company Plan;
(iii) there is no Action (including any investigation, audit or other administrative proceeding) 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 none of the Company, threatened, relating any Company Subsidiary or any ERISA Affiliate contributes to the Company Plans, or has any fiduciaries thereof actual or potential liability with respect to their duties to the Company Plans or the assets any multiemployer plan (as defined in Section 3(37) of any ERISA) (each, a “Multiemployer Plan”). None of the trusts under Company, any of the Company Plans (other than routine claims for benefits) nor are there facts Subsidiary or circumstances that exist that could reasonably give rise to any such Actions;
(iv) neither the Company nor its Subsidiaries nor any of their Affiliates ERISA Affiliate has incurred any direct or indirect withdrawal liability under ERISA or the Code in connection with the termination of, withdrawal from or failure to fund, any Company Plan or other retirement plan or arrangement, and no fact or event exists that would reasonably be expected to give rise respect to any such liability; and
Multiemployer Plan. To the knowledge of Seller, no Multiemployer Plan (vi) has filed a notice of reorganization, insolvency or termination under Section 4041A of Title IV of ERISA, (ii) is in “at risk” status within the Company and its Subsidiaries do not maintain any Company Plan that is a “group health plan” (as such term is defined in Section 5000(b)(1) of the Code) that has not been administered and operated in all respects in compliance with the applicable requirements meaning of Section 601 of ERISA and Section 4980B(b430(i) of the Code, or (iii) is in “endangered status” or “critical status” within the meaning of Section 432(b) of the Code. The Company, each Company Subsidiary and the Company and its Subsidiaries are not subject each ERISA Affiliate has made all required contributions to any liability, including additional contributions, fines, penalties or loss of Tax deductions, as a result of such administration and operation; andMultiemployer Plan when due.
(df) None No Company Plan provides benefits with respect to any former or current employee of the Company Plans provides for payment or any Company Subsidiary or any employee set forth in Section 8.07(a) of a benefitthe Seller Disclosure Schedule, or any spouse or dependent of any such employee, beyond the employee’s retirement or other termination of employment other than (1) coverage mandated by Part 6 of Title I of ERISA or Section 4980B of the Code, or (2) benefits in the nature of severance pay with respect to one or more of the employment contracts set forth in Section 4.15(a) of the Seller Disclosure Schedule.
(g) Except with respect to payments disclosed on Section 4.15(g) of the Seller Disclosure Schedule, the increase of a benefit amounttransactions contemplated by this Agreement shall not, either alone or in connection with other events, give rise to the payment of a contingent benefit, any amount that would not be deductible by the acceleration of a payment Company or the vesting of a benefit determined or occasioned, in whole or in part, any Company Subsidiary by reason of Section 280G of the Code. Neither the execution and delivery of this Agreement or Agreement, nor the consummation of the transactions contemplated hereby will (either alone or in conjunction with i) entitle any other event). None of the Company Plans or any other plan agreement or arrangement in effect immediately prior to the Closing could result separately or in the aggregate in connection with the transactions contemplated by this Agreement (either alone or in conjunction with any other event) in the payment of any “excess parachute payment” within the meaning of Section 280G of the Code.
(e) Each Company Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A(d)(1) of the Code has complied in form and operation with the requirements of Section 409A of the Code. No current or former employee, consultant or director to any payment; (ii) increase the amount of compensation or benefits due to any such employee, consultant or director; or (iii) accelerate the vesting, funding or time of payment of any compensation, equity award or other service provider is entitled to any gross-up, make-whole or other additional payment from the Company or any of its Subsidiaries in respect of any Tax (including Federal, state, local or foreign income, excise or other Taxes (including Taxes imposed under Section 409A and 4999 of the Code)) or interest or penalty related theretobenefit.
Appears in 1 contract
Benefit Plans. (a) Section 3.11(a) 3.22 of the Company Disclosure Letter sets forth a true and complete list, as of the date hereof, of lists each “employee benefit plan” (within the meaning of section 3(3) of the Employee Retirement Income Security Act of 1974 (“ERISA”)), “multiemployer plan” (within the meaning of ERISA section 3(37)) and all stock purchase, stock option, phantom stock or other equity-based plan, severance, employment, collective bargaining, 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 or required in the future as a result of the transactions contemplated by this Agreement or otherwise), whether formal or informal, written or oral, legally binding or not, Plan under which any current employee or former employee, director or consultant employee of the Company or its Subsidiaries (or any of their dependents) has any present or future right to compensation or material benefits or the Company or any of its Subsidiaries has had sponsors, maintains or to which the Company or any of its Subsidiaries contributes or is obligated to contribute or has any present or future liability (the “Company Benefit Plans”) and specifies if such Plan is not sponsored by the Company or any of its Subsidiaries. Each Company Benefit Plan has been established and administered in all material respects in accordance with its terms, and complies in all material respects in form and in operation with the applicable requirements of ERISA and the Code and other applicable requirements of Law and no prohibited transaction, as described in Section 406 of ERISA or Section 4975 of the Code involving the Company or any of its Subsidiaries (or, to the Knowledge of the Company, another “fiduciary” or “party-in-interest” within the meaning of Section 406 of ERISA) has occurred with respect to which it is otherwise bound (collectivelyany Company Plan. All material employer or employee contributions, the “Company Plans”). With premiums and expenses to or in respect to of each Company PlanPlan have been paid in full or, to the extent not yet due, have been adequately accrued on the applicable financial statements of the Company included in the Company SEC Documents in accordance with GAAP.
(b) The Company has made available to Parent a true Acquirer true, complete and complete copy thereof and, correct copies of (to the extent applicable: ) (i) all such Company Benefit Plans and any related trust agreement or other funding instrument, amendments thereto; (ii) each trust, funding, insurance or administrative agreement relating to each such Company Benefit Plan; (iii) the most recent determination letter of the Internal Revenue Service (the “IRS”), if applicable, (iii) any summary plan description and or other written communications explanation (or a description of any oral communications) by the of each such Company or its Subsidiaries Benefit Plan provided to their employees participants and any amendments thereto concerning the extent of the benefits provided under a Company Benefit Plan, and ; (iv) the three (3) most recent Forms 5500 required to have been filed with the Internal Revenue Service (or any similar reports filed in any comparable non-U.S. Governmental Authority) and any schedule thereto; (v) the most recent determination letter issued by the Internal Revenue Service with respect to the Plan or a prototype or similar plan on which it is entitled to rely (or comparable qualification document issued by a comparable non-U.S. Governmental Authority); and (vi) for the two three (3) most recent years (A) years, final financial or actuarial reports specifically relating to the Form 5500 and attached schedules, (B) audited financial statements, (C) actuarial valuation reports and (D) attorney’s response to an auditor’s request for information.
(b) No Company Plan is subject to Title IV of ERISA or Section 412 of the Code, no Company Plan is a multiemployer plan (within the meaning of Section 3(37) of ERISA), and neither Plan. Neither the Company nor any member of its Controlled Group (defined as Subsidiaries has communicated any organization which intention or commitment to amend or modify any Company Benefit Plan or to establish or implement any other employee or retiree benefit or compensation plan or arrangement. For purposes of this Agreement, in no event shall the term Company Benefit Plans include any Plan that is a member sponsored or maintained by any of a controlled group Acquirer or any of organizations within the meaning of Code Sections 414(b), (c), (m) or (o)) has any liability (direct or contingent) with respect to, and has never incurred any liability (director or contingent) with respect to, any employee benefit plan subject to Title IV of ERISA. No Company Plan provides health or other welfare benefits to former employees of the Company or its Subsidiaries other than health continuation coverage pursuant to COBRASubsidiaries.
(c) With No Claim with respect to the Company Plans, except to the extent that the inaccuracy of any of the representations set forth in this paragraph (c), individually or in the aggregate, has not been and would not reasonably be expected to be material to the Company and its Subsidiaries, taken as a whole:
(i) each Company Plan has been established and administered in accordance with its terms and in compliance with the applicable provisions of applicable Law, including ERISA and the Code, and all contributions required to be made under the terms of any Company Benefit Plan have been timely made;
(ii) each Company Plan intended to be qualified under Section 401(a) of the Code has received a favorable determination, advisory or opinion letter, as applicable, from the IRS that it is so qualified and nothing has occurred that would reasonably be expected to cause the loss of such qualified status of such Company Plan;
(iii) there is no Action (including any investigation, audit or other administrative proceedingthan routine claims for benefits) by the Department of Labor, the Pension Benefit Guaranty Corporation, the IRS Internal Revenue Service (“IRS”) or any other Governmental Entity Authority or by any plan participant or beneficiary pending, is pending or to the Knowledge of the Company, threatened, relating to the Company Benefit Plans, any fiduciaries thereof with respect to their duties to the Company Benefit Plans or the assets of any of the trusts under any of the Company Benefit Plans (other than routine claims for benefits) which could reasonably be expected to result in a material liability to the Company or any of its Subsidiaries nor are there facts or circumstances that exist that could reasonably give rise to any such Actions;Claims.
(ivd) neither None of the Company nor and its Subsidiaries nor or any other Person that would be treated as a single employer with the Company under Section 414(b), (c), (m) or (o) of their Affiliates the Code (each, a “Commonly Controlled Entity”) has within the preceding six (6) years incurred any direct or indirect material liability under ERISA or the Code in connection with the termination of, withdrawal from or failure to fund, any Company Benefit Plan or other retirement plan or arrangement, and no fact or event exists that would could reasonably be expected to give rise to any such liability; and.
(ve) the The Company and its Subsidiaries do not maintain any Company Benefit Plan that is a “group health plan” (as such term is defined in Section 5000(b)(1) of the Code) that has not been administered and operated in all respects in compliance with the applicable requirements of Section 601 of ERISA and Section 4980B(b) of the Code, and the Company and its Subsidiaries are not subject to any material liability, including additional contributions, fines, penalties or loss of Tax deductions, deduction as a result of such administration and operation; and.
(df) None The IRS has issued a favorable determination letter with respect to each Company Benefit Plan that is intended to be qualified under Section 401(a) of the Code stating that such plan or a prototype or similar plan on which such Plan is entitled to rely is so qualified and to the Knowledge of the Company Plans provides for payment no events have occurred that would reasonably be expected to result in the revocation of a benefit, the increase of a benefit amount, the payment of a contingent benefit, the acceleration of a payment or the 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 hereby such determination.
(either alone or in conjunction with any other event). None g) Except as set forth on Section 3.22(g) of the Company Plans Disclosure Letter, no(g) Company Benefit Plan provides for medical, disability, life insurance or other welfare benefits with respect to any employee or former employee beyond their retirement or other plan agreement termination of service, other than (i) coverage mandated by applicable Law and at the expense of the employee or arrangement in effect immediately prior to the Closing could result separately former employee or in the aggregate in connection with the transactions contemplated by this Agreement (either alone or in conjunction with any other eventii) in the payment of benefits under any “excess parachute paymentemployee pension benefit plan” within the meaning (as such term is defined in Section 3(2) of Section 280G of the CodeERISA).
(eh) No Company Benefit Plan is subject to Title IV of ERISA, neither the Company nor any of its Subsidiaries or ERISA Affiliates has incurred any actual or potential, secondary, or contingent liability under Title IV of ERISA and, to the Knowledge of the Company, there are no facts or circumstances that could reasonably be expected to give rise to such liability. Neither the Company nor any of its Subsidiaries or its ERISA Affiliates has at any time maintained, contributed to or incurred any liability under any “multiemployer plan” (as defined in Section 3(37) of ERISA). The Company has not contributed to, been required to contribute to, or withdrawn from any “multiemployer plan” (as defined in Section 3(37) of ERISA).
(i) Each Company Benefit Plan that is a “nonqualified deferred compensation plan” within the meaning of (as such term is defined in Section 409A(d)(1) of the Code has complied Code) are in form and operation material compliance with the requirements of Section 409A of the Code and the regulations thereunder, and none of the Company Benefit Plans or the Merger will cause a participant in such Company Benefit Plans to be subject to the Tax imposed by Section 409A(a)(1)(B) of the Code. No .
(j) Except as set forth in Section 3.22(j) of the Company Disclosure Letter, neither the execution nor delivery of this Agreement, nor the consummation of the transactions contemplated thereby, either alone or together with any other event, shall (i) entitle any current or former employeeofficer, director director, manager, employee or consultant of the Company or any of its Subsidiaries or any independent contractor to severance pay or any other payment, (ii) accelerate the time of payment or vesting, result in any forgiveness of indebtedness or trigger any payment of funding (through a grantor trust or otherwise) of compensation or benefits under, increase the amount payable pursuant to, any Company Benefit Plan, employment agreement or other service provider arrangement, or (iii) result in any payment (whether in cash or property or the vesting of property) to any “disqualified individual” (as such term is defined in Treasury Regulation section 1.280G-1) 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 Code). No person is entitled to receive any additional payment (including any tax gross-up, make-whole up or other additional payment payment) from the Company or any of its Subsidiaries in respect as a result of the imposition of any Tax (including Federal, state, local or foreign income, excise or other Taxes (including Taxes imposed under Section 409A and taxes required by section 4999 of the Code.
(k) Each non-U.S. Company Benefit Plan has been maintained in material compliance with its terms and with the requirements prescribed by any and all applicable statutes, orders, rules, and regulations (including any special provisions relating to qualified plans where such non-U.S. Company Benefit Plan was intended to so qualify) and has been maintained in good standing with applicable regulatory authorities. No non-U.S. Company Benefit Plan is a defined benefit plan (within the meaning of Section 3(35) of ERISA, whether or not subject to ERISA)) or interest or penalty related thereto.
Appears in 1 contract
Benefit Plans. (a) Section 3.11(a) of the The Company Disclosure Letter sets forth has made available to Parent a true and complete list, as of the date hereof, list of each “employee benefit plan” (within the meaning of section 3(3) of the Employee Retirement Income Security Act of 1974 1974, as amended (“ERISA”)), “multiemployer planplans” (within the meaning of ERISA section 3(37)) and all ), stock purchase, stock option, phantom stock or other equity-based plan, severance, employment, collective bargaining, option and change-in-controlcontrol plan, agreement, program, policy or arrangement, and each material severance, fringe benefit, bonus, incentive, deferred compensation and all or 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 or required in the future as a result of the transactions contemplated by this Agreement or otherwise), whether formal or informal, written or oralwritten, legally binding or not, under which any current employee or former employee, director or consultant employee of the Company or its Subsidiaries (or any of their dependents) has any present or future right to compensation or benefits or the Company or its Subsidiaries has had or has any present or future liability or with respect liability. All such plans, agreements, programs, policies and arrangements shall be collectively referred to which it is otherwise bound (collectively, as the “Company Plans”). .” With respect to each Company Plan, the Company has furnished or made available to Parent a true current, accurate and complete copy thereof and, to the extent applicable: (i) any related trust agreement or other funding instrument, (ii) the most recent determination letter of the Internal Revenue Service (the “IRS”), if applicable, (iii) any summary plan description and other written communications (or a description of any oral communications) by the Company or its Subsidiaries to their employees concerning the extent of the benefits provided under a Company Plan, and (iv) for the two most recent years (A) the Form 5500 and attached schedules, (B) audited financial statements, (C) actuarial valuation reports and (D) attorney’s response to an auditor’s request for information.
(b) No Company Plan is subject to Title IV of ERISA or Section 412 of the Code, no Company Plan is a multiemployer plan (within the meaning of Section 3(37) of ERISA), and neither the Company nor any member of its Controlled Group (defined as any organization which is a member of a controlled group of organizations within the meaning of Code Sections 414(b), (c), (m) or (o)) has any liability (direct or contingent) with respect to, and has never incurred any liability (director or contingent) with respect to, any employee benefit plan subject to Title IV of ERISA. No Company Plan provides health or other welfare benefits to former employees of the Company or its Subsidiaries other than health continuation coverage pursuant to COBRA.
(c) With respect to the Company Plans, except as disclosed in the Company SEC Documents or to the extent that the inaccuracy of any of the representations set forth in this paragraph (c)Section 3.12, individually or in the aggregate, has have not been had and would not reasonably be expected to be material to the Company and its Subsidiaries, taken as have a wholeMaterial Adverse Effect:
(i) each Company Plan has been established and administered in accordance with its terms and in compliance with the applicable provisions of applicable Law, including ERISA and the Code, and no reportable event, as defined in Section 4043 of ERISA and with respect to which notice has not been waived under applicable regulation, no non-exempt prohibited transaction, as described in Section 406 of ERISA or Section 4975 of the Code, or accumulated funding deficiency, as defined in Section 302 of ERISA and 412 of the Code, has occurred with respect to any Company Plan, and all contributions required to be made under the terms of any Company Plan have been timely made;
(ii) each Company Plan intended to be qualified under Section 401(a) of the Code has received a favorable determination, advisory or and/or opinion letter, as applicable, from the IRS that it is so qualified and nothing has occurred since the date of such letter that would reasonably be expected to cause the loss of such qualified status of such Company Plan;
(iii) the aggregate accumulated benefit obligations of the Company Plans subject to Title IV of ERISA (as of the date of the most recent actuarial valuation prepared for such Company Plans and based on the discount rate and other actuarial assumptions used in such valuation) do not exceed the fair market value of the assets of such Company Plans in the aggregate (as of the date of such valuation);
(iv) there is no Action (including any investigation, audit or other administrative proceeding) by the Department of Labor, the Pension Benefit Guaranty CorporationCorporation (the “PBGC”), the IRS or any other Governmental Entity or by any plan participant or beneficiary pending, or to the Knowledge knowledge of the Company, threatened, relating to the Company Plans, or to the knowledge of the Company, any fiduciaries thereof with respect to their duties to the Company Plans Plans, or the assets of any of the trusts under any of the 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;
(ivv) neither the Company nor has not received any written or oral communication from the PBGC with respect to any Company Plan subject to Title IV of ERISA concerning the funded status of any such Company Plan;
(vi) with respect to any “multiemployer plan” (within the meaning of ERISA section 3(37)) to which the Company, its Subsidiaries nor or any member of their Affiliates Controlled Group (defined as any organization which is a member of a controlled group of organizations within the meaning of Code 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): (A) none of the Company, its Subsidiaries or any member of their Controlled Group has incurred any withdrawal liability in the past six years under Title IV of ERISA that has not been fully satisfied or would be subject to such liability if, as of the Effective Time, the Company, 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);
(vii) with respect to each Company Plan currently or formerly maintained by the Company, a Subsidiary or any member of their Controlled Group that is subject to Title IV of ERISA, the Company has not incurred, nor does it reasonably expect to incur, any material liability to the Company Plan or to the PBGC in connection with such Company Plan that has not been fully satisfied;
(viii) with respect to any Company Plan that provides retiree welfare benefits, the FAS 106 liabilities of the Company or its Subsidiaries and the assumptions used therefor accurately reflect the costs associated with the rights and benefit of all Parent employees;
(ix) none of the Company and its Subsidiaries or members of their Controlled Group has incurred any direct or indirect material liability under ERISA or the Code in connection with the termination of, withdrawal from or failure to fund, any Company Plan or other retirement plan or arrangementarrangement that has not been fully satisfied, and no fact or event exists that would reasonably be expected to give rise to any such liability; and;
(vx) the Company and its Subsidiaries do not maintain any Company Plan that is a “group health plan” (as such term is defined in Section 5000(b)(1) of the Code) that has not been administered and operated in all respects in compliance with the applicable requirements of Section 601 of ERISA and Section 4980B(b) of the Code, and the Company and its Subsidiaries are not subject to any material liability, including additional contributions, fines, penalties or loss of Tax deductions, deduction as a result of such administration and operation; and
(dxi) None none of the Company Plans provides for payment of a benefit, the increase of a benefit amount, the payment of a contingent benefit, benefit or the acceleration of a the payment or the 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 hereby (either alone or in conjunction with any other event). None of the Company Plans or any other plan agreement or arrangement in effect immediately prior to the Closing could result separately or in the aggregate in connection with the transactions contemplated by this Agreement (either alone or in conjunction with any other event) in the payment of any “excess parachute payment” within the meaning of Section 280G of the Codehereby.
(ec) Each Except as has not had and would not reasonably be expected to have a Material Adverse Effect, (i) each Company 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 complied been operated in form compliance with Section 409A of the Code since January 1, 2005, based upon a good faith, reasonable interpretation of (A) Section 409A of the Code and operation with (B) IRS Notice 2005-1 or any other applicable IRS guidance, in each case as modified by IRS Notice 2007-86 (clauses (A) and (B), together, the requirements “409A Authorities”), (ii) no Company Plan that would be a Nonqualified Deferred Compensation Plan subject to Section 409A of the Code but for the effective date provisions that are applicable to Section 409A of the Code. No current or former employee, director or other service provider as set forth in Section 885(d) of the American Jobs Creation Act of 2004, as amended (the “AJCA”), has been “materially modified” within the meaning of Section 885(d)(2)(B) of the AJCA after October 3, 2004, based upon a good faith reasonable interpretation of the AJCA and the 409A Authorities and has not been operated in compliance with the 409A Authorities, and (iii) no Participant is entitled to any gross-up, make-whole or other additional payment from the Company or any of its Subsidiaries in respect of any Tax (including Federal, state, local or foreign income, excise or other Taxes (including Taxes imposed under Section 409A and 4999 of the Code)) or interest or penalty related thereto.
(d) For purposes of this Agreement, “Participant” shall mean current or former director, officer, employee, contractor or consultant of the Company or any of its Subsidiaries.
Appears in 1 contract
Benefit Plans. (a) Section 3.11(a) of the The Company Disclosure Letter sets forth has provided to Parent a true and complete list, as of the date hereof, list of each “employee benefit plan” (within the meaning of section Section 3(3) of the Employee Retirement Income Security Act of 1974 1974, as amended (“ERISA”)), “multiemployer plan” (within the meaning of ERISA section 3(37)) and all stock purchase, stock option, phantom stock or other equity-based plan, severance, employment, collective bargaining, 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 or required in the future as a result of the transactions contemplated by this Agreement or otherwise), whether formal or informal, written or oralwritten, legally binding or not, under that is currently in effect, was maintained since December 31, 2004 or which any current has been approved before the date hereof but is not yet effective, for the benefit of (i) directors or former employee, director or consultant employees of the Company or its Subsidiaries any other persons performing services for the Company, (ii) former directors or any employees of their dependents) has any present or future right to compensation or benefits or the Company or its Subsidiaries has had any other persons formerly performing services for the Company, or has any present (iii) beneficiaries of anyone described in (i) or future liability or with respect (ii). All such plans, agreements, programs, policies and arrangements shall be collectively referred to which it is otherwise bound (collectively, as the “Company Plans”). .” With respect to each Company Plan, the Company has furnished or made available to Parent a true current, accurate and complete copy thereof and, to the extent applicable: (i) any related trust agreement or other funding instrument, (ii) the most recent determination letter of the Internal Revenue Service (the “IRS”), if applicable, (iii) any summary plan description with each summary of material modifications thereto, if any, employee handbooks and other written communications (or a description of any oral communications) by the Company or its Subsidiaries to their employees concerning the extent of the benefits provided under a Company Plan, Plan and (iv) for the two three (3) most recent years (A) the Form 5500 Forms 5500, 941 and 1041 and attached schedules, (B) audited financial statements, and (C) actuarial valuation reports and (D) attorney’s response to an auditor’s request for informationreports.
(b) No Each Company Plan intended to be qualified under Section 401(a) of the Code has received a favorable determination, advisory and/or opinion letter, as applicable, from the IRS that it is subject so qualified and, to Title IV the knowledge of the Company, nothing has occurred since the date of such letter that would reasonably be expected to cause the loss of such qualified status of such Company Plan or cause the imposition of any penalty or Tax liability.
(c) The Company is not liable for, and the Company will not be liable for, any liability of any “ERISA Affiliate” (hereby defined to include any trade or business, whether or not incorporated, other than the Company, which has employees who are or have been at any date of determination occurring within the preceding six (6) years, treated pursuant to Section 4001(a)(14) of ERISA and/or Section 414 of the Code as employees of a single employer which includes the Company) including predecessors thereof) with regard to any Company Plan maintained, sponsored or contributed to by an ERISA Affiliate (if a like definition of Company Plan were applicable to the ERISA Affiliate in the same manner as it applies to the Company) (each such Company Plan for an ERISA Affiliate being an “ERISA Affiliate Plan”), including, without limitation: (i) withdrawal liability arising under Title IV, Subtitle E, Part 1 of ERISA; (ii) liabilities to the Pension Benefit Guaranty Corporation (“PBGC”); (iii) liabilities under Section 412 of the CodeCode or Section 302(a)(2) of ERISA; (iv) liabilities resulting from the failure on the part of the Company, no any ERISA Affiliate, each Company Plan is a multiemployer plan or each Company Plan “sponsor” or “administrator” (within the meaning of Section 3(16) of ERISA) to comply in all respects with the applicable requirements of Section 4980B of the Code and Section 601 et seq. of ERISA; or (v) liabilities resulting from an ERISA Affiliate Plan’s failure to satisfy the reporting and disclosure requirements of ERISA and the Code.
(d) Neither the Company nor any ERISA Affiliate has ever maintained or contributed to a multiemployer plan (as defined in Section 3(37) of ERISA), and neither the Company nor any member of its Controlled Group (defined as any organization which is a member of a controlled group of organizations within the meaning of Code Sections 414(b), (c), (m) or (o)) has any liability (direct or contingent) with respect to, and has never incurred any liability (director or contingent) with respect to, any employee benefit plan subject to Title IV of ERISA. No Company Plan provides health or other welfare benefits to former employees of the Company or its Subsidiaries other than health continuation coverage pursuant to COBRA.
(ce) With respect to the Company Plans, except to as disclosed in the extent that the inaccuracy of any Company SEC Documents or in Section 4.12 of the representations set forth in this paragraph (c), individually or in the aggregate, has not been and would not reasonably be expected to be material to the Company and its Subsidiaries, taken as a wholeDisclosure Letter:
(i) each Company Plan has been established and administered in accordance with its terms and in material compliance with the applicable provisions of applicable Law, including ERISA and the Code, and no reportable event, as defined in Section 4043 of ERISA, no prohibited transaction, as described in Section 406 of ERISA or Section 4975 of the Code, or accumulated funding deficiency, as defined in Section 302 of ERISA and 412 of the Code, has occurred with respect to any Company Plan, and all contributions required to be made under the terms of any Company Plan have been timely made;
(ii) each Company Plan intended to be qualified under Section 401(a) the knowledge of the Code has received a favorable determinationCompany, advisory or opinion letter, as applicable, from the IRS that it is so qualified and nothing has occurred that would reasonably be expected to cause the loss of such qualified status of such Company Plan;
(iii) there is no Action (including any investigation, audit or other administrative proceeding) by the Department of Labor, the Pension Benefit Guaranty CorporationPBGC, the IRS or any other Governmental Entity or by any plan participant or beneficiary pending, threatened in writing, or to the Knowledge of the Company, threatened, relating to the Company Plans, any fiduciaries thereof with respect to their duties to the Company Plans or the assets of any of the trusts under any of the Company Plans (other than routine claims for benefits) nor nor, to the knowledge of the Company, are there facts or circumstances that exist that could reasonably give rise to any such Actions;
(iv) neither the Company nor its Subsidiaries nor any of their Affiliates has incurred any direct or indirect liability under ERISA or the Code in connection with the termination of, withdrawal from or failure to fund, any Company Plan or other retirement plan or arrangement, and no fact or event exists that would reasonably be expected to give rise to any such liability; and
(viii) the Company and its Subsidiaries do not maintain any if a Company Plan purports to be a voluntary employees’ beneficiary association (“VEBA”), a request for a determination letter for the VEBA has been submitted to and approved by the IRS that the VEBA is a “group health plan” (as such term is defined in exempt from federal income tax under Section 5000(b)(1) of the Code) that has not been administered and operated in all respects in compliance with the applicable requirements of Section 601 of ERISA and Section 4980B(b501(c)(9) of the Code, and nothing has occurred or is expected to occur that caused or could cause the loss of such qualification or exemption or the imposition of any tax, interest or penalty with respect thereto.
(f) Neither the Company nor any ERISA Affiliate has any obligation to contribute to or provide benefits pursuant to, and its Subsidiaries are not subject to has no other liability of any liabilitykind with respect to, including additional contributions(i) a “multiple employer welfare arrangement” (MEWA) (within the meaning of Section 3(40) of ERISA), fines, penalties or loss (ii) a “plan maintained by more than one employer” (within the meaning of Tax deductions, as a result Section 413(c) of such administration and operation; andthe Code).
(dg) None of the Company Plans provides provide for payment of a benefit, the increase of a benefit amount, the payment of a contingent benefit, benefit or the acceleration of a the payment or the 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 hereby hereby. No amount or benefit that could be received by any “disqualified individual” (either alone or as defined in conjunction Treasury Regulation Section 1.280G-1) with any other event). None of respect to the Company Plans or any other plan agreement or arrangement in effect immediately prior to the Closing could result separately or in the aggregate Subsidiary in connection with the transactions contemplated by this Agreement (either alone or in conjunction combination with any other event, and whether pursuant to a Company Plan or otherwise) in the payment of any could be characterized as an “excess parachute payment” within the meaning of (as defined in Section 280G 280G(b)(1) of the Code).
(eh) No Company Plan provides for post-employment welfare benefits except to the extent required by Section 4980B of the Code or applicable state Law.
(i) Each Company Plan that is a “nonqualified deferred compensation plan” within the meaning of subject to Section 409A(d)(1) 409A of the Code has complied in form and operation with the requirements of Section 409A of the Code. No current or former employee, director or other service provider individual is entitled to any gross-up, make-whole or other additional payment from the Company or any of its Subsidiaries in respect of any Tax (including Federalfederal, state, local or foreign income, excise or other Taxes (including Taxes imposed under Section 409A and 4999 of the Code)) or interest or penalty related thereto.
(j) Each Company Plan that is subject to Section 1862(b)(1) of the SSA has been operated in compliance with the secondary payor requirements of Section 1862 thereof.
Appears in 1 contract
Benefit Plans. (a) Section 3.11(a3.10(a) of the Company Disclosure Letter sets forth a true and complete listlists, as of the date hereofof this Agreement, of each material Benefit Plan that is sponsored, maintained and/or contributed to by any Group Company or under which any Group Company has or reasonably expects to have any obligation or Liability under (each, a “employee benefit plan” (within the meaning of section 3(3Company Benefit Plan”); provided, that, Section 3.10(a) of the Employee Retirement Income Security Act of 1974 (“ERISA”))Company Disclosure Letter shall not include any employment agreement, “multiemployer plan” (within offer letter or individual consulting agreement that is, in each case, consistent in all material respects with the meaning of ERISA section 3(37)form(s) and all stock purchase, stock option, phantom stock or other equity-based plan, severance, employment, collective bargaining, 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 or required in the future as a result of the transactions contemplated by this Agreement or otherwise), whether formal or informal, written or oral, legally binding or not, under which any current or former employee, director or consultant set forth on Section 3.10(a) of the Company or its Subsidiaries Disclosure Letter.
(b) No Company Benefit Plan has ever (i) had a participant (or any a dependent or beneficiary thereof) who, at the time such participant was a participant in such Company Benefit Plan, resided in the United States, or (ii) been subject to the Applicable Legal Requirements of their dependents) the United States, including ERISA and the Code. No Group Company has any present obligation or future right Liabilities under any Benefit Plan that at any time was subject to compensation or benefits or the Company or its Subsidiaries has had or has any present or future liability or with respect to which it is otherwise bound Applicable Legal Requirements of the United States, including ERISA and the Code.
(collectively, the “Company Plans”). c) With respect to each material Company Benefit Plan, the Company has made available to Parent GF, if applicable, (i) a true and complete copy thereof and, to of the extent applicable: (i) any related current plan document and all amendments thereto and each trust agreement or other funding instrumentarrangement, (ii) copies of the most recent determination letter summary plan description and any summaries of the Internal Revenue Service (the “IRS”), if applicablematerial modifications, (iii) any summary plan description and other written communications (or a description of any oral communications) by the Company or its Subsidiaries to their employees concerning the extent copy of the benefits provided under a Company Planmost recent annual reports, and (iv) for any material correspondence from any Governmental Entity with respect to any Company Benefit Plan within the two most recent years past three (A3) years. No Group Company has, as of the Form 5500 and attached schedulesdate hereof, (B) audited financial statementsany express commitment to modify, (C) actuarial valuation reports and (D) attorney’s response change or terminate a Company Benefit Plan, other than with respect to an auditor’s request for informationa modification, change or termination required by Applicable Legal Requirements.
(bd) No Company Plan Neither the execution and delivery of this Agreement nor the consummation of the Transactions shall (either alone or in combination with another event), (i) entitle any Service Provider to separation pay, severance, termination or similar benefits, (ii) accelerate the time of payment or vesting, or material increase in the amount of compensation due to any such Service Provider, or (iii) result in any payment or benefit (whether in cash or property or the vesting of property) to any “disqualified individual” (as such term is subject to Title IV of ERISA defined in Treasury Regulation Section 1.280G-1) that could, individually or in combination with any other such payment, constitute an “excess parachute payment” (as defined in Section 412 280G(b)(1) of the Code, no Company Plan is a multiemployer plan ).
(within the meaning e) None of Section 3(37) of ERISA), and neither the Company Benefit Plans provides, nor does any member Group Company have any obligation to provide, retiree medical benefits to any current or former Service Provider after termination of its Controlled Group employment or service, except as (defined as i) may be required by any organization which is a member of a controlled group of organizations within the meaning of Code Sections 414(b)Applicable Legal Requirements, (c)ii) coverage through the end of the calendar month in which a termination of employment occurs, (m) or (o)) has any liability (direct or contingentiii) with respect to, and has never incurred any liability to reimbursement of health benefit continuation premiums.
(director or contingentf) with respect to, any employee benefit plan subject to Title IV of ERISA. No Company Plan provides health or other welfare benefits to former employees Except as set forth in Section 3.10(f) of the Company or its Subsidiaries other than health continuation coverage pursuant to COBRA.
(c) With respect to the Company PlansDisclosure Letter, and except to the extent that the inaccuracy of any of the representations set forth in this paragraph (c)as would not reasonably be expected to, individually or in the aggregate, has not been and would not reasonably be expected to be material to the constitute a Company and its SubsidiariesMaterial Adverse Effect, taken as a whole:
(i) each Company Benefit Plan is and has been established and administered within the past six (6) years in compliance in accordance with its terms and in compliance with the applicable provisions requirements of applicable Lawall Applicable Legal Requirements, including ERISA and (ii) the Code, and Group Companies have performed all contributions obligations required to be made performed by them under, are not in default under the terms or in violation of, and have no Knowledge of any default or violation by any party to, any Company Plan have been timely made;
(ii) each Company Plan intended to be qualified under Section 401(a) of the Code has received a favorable determinationBenefit Plan, advisory or opinion letter, as applicable, from the IRS that it is so qualified and nothing has occurred that would reasonably be expected to cause the loss of such qualified status of such Company Plan;
(iii) there no Legal Proceeding is no Action (including any investigationpending or, audit or other administrative proceeding) 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 the Company, threatened, relating to the Company Plans, any fiduciaries thereof threatened with respect to their duties to the any Company Plans or the assets of any of the trusts under any of the Company Plans Benefit Plan (other than routine claims for benefitsbenefits in the ordinary course) nor are there facts or circumstances that exist that could reasonably give rise and, to any such Actions;
(iv) neither the Company nor its Subsidiaries nor any Knowledge of their Affiliates has incurred any direct or indirect liability under ERISA or the Code in connection with the termination ofCompany, withdrawal from or failure to fund, any Company Plan or other retirement plan or arrangement, and no fact or event exists that would could reasonably be expected to give rise to any such liability; andLegal Proceeding.
(vg) the Company and its Subsidiaries do not maintain All contributions, premiums or other payments required to be made with respect to any Company Benefit Plan have been timely made to the extent due or properly accrued on the Financial Statements, except as would not reasonably be expected to, individually or in the aggregate, constitute a Company Material Adverse Effect.
(h) The Group Companies have timely made all contributions and satisfied all obligations with respect to any statutory plan, program or arrangement that is required under any Applicable Legal Requirements and maintained by any Governmental Entity covering current or former Service Providers, except as would not reasonably be expected to, individually or in the aggregate, constitute a “group health plan” Company Material Adverse Effect.
(i) Except as such term is defined set forth in Section 5000(b)(13.10(i) of the CodeCompany Disclosure Letter, each Company Benefit Plan (i) that is intended to qualify for special tax treatment has not been administered and operated in met all respects in compliance with the applicable requirements of Section 601 of ERISA and Section 4980B(bfor such tax treatment, (ii) of the Code, and the Company and its Subsidiaries are not subject if required to any liability, including additional contributions, fines, penalties or loss of Tax deductionsbe fully funded and/or book-reserved is fully funded and/or book-reserved, as a result appropriate, based on reasonable actuarial assumptions and do not have unfunded Liabilities that could reasonably be expected to be imposed upon the assets of such administration and operation; and
(d) None of the any Group Company Plans provides for payment of a benefit, the increase of a benefit amount, the payment of a contingent benefit, the acceleration of a payment or the vesting of a benefit determined or occasioned, in whole or in part, by reason of such Company Benefit Plan, (iii) is in compliance in all material respects with its terms and all Applicable Legal Requirements, and (iv) if intended or required to be qualified, approved or registered with a Governmental Entity, is and has been so qualified, approved or registered and, to the execution of this Agreement or the consummation Knowledge of the transactions contemplated hereby (either alone or in conjunction with any other event). None of the Company Plans or any other plan agreement or arrangement in effect immediately prior Company, nothing has occurred that could reasonably be expected to the Closing could result separately or in the aggregate in connection with the transactions contemplated by this Agreement (either alone loss of such qualification, approval or in conjunction with any other event) in the payment of any “excess parachute payment” within the meaning of Section 280G of the Coderegistration, as applicable.
(e) Each Company Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A(d)(1) of the Code has complied in form and operation with the requirements of Section 409A of the Code. No current or former employee, director or other service provider is entitled to any gross-up, make-whole or other additional payment from the Company or any of its Subsidiaries in respect of any Tax (including Federal, state, local or foreign income, excise or other Taxes (including Taxes imposed under Section 409A and 4999 of the Code)) or interest or penalty related thereto.
Appears in 1 contract
Samples: Business Combination Agreement (Golden Falcon Acquisition Corp.)
Benefit Plans. (a) Section 3.11(a) of the The Company Disclosure Letter sets forth a true and complete list, as of the date hereof, of each does not maintain any “employee benefit planEmployee Benefit Plans” (within the meaning of section Section 3(3) of the Employee Retirement Income Security Act of 1974 1974, as amended (“ERISA”)), “including, without limitation, multiemployer plan” (plans within the meaning of ERISA section Section 3(37)). Schedule 2.17(a) contains a true and all complete list of each stock purchase, stock option, phantom stock or other equity-based plan, severance, employment, collective bargaining, change-in-control, fringe benefit, collective bargaining, bonus, incentive, deferred compensation compensation, retention and all other employee benefit and compensation plans, agreements, programs, policies or other arrangementsarrangements maintained by the Company, 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 otherwiseeffect), whether formal oral or informal, written or oral, legally binding or notwritten, under which any current or former employee, director or consultant of the Company or its Subsidiaries (or any of their dependents) Employees has any present or future right to compensation or benefits or the Company or its Subsidiaries has had or has any present or future liability or with respect benefits. All such plans, agreements, programs, policies and arrangements are collectively referred to which it is otherwise bound (collectively, herein as the “Company Plans”.” Except as disclosed on Schedule 2.17(a). , the Company has no express or implied commitment to (i) create, incur liability with respect to, or cause to exist any “employee benefit plan” or (ii) to enter into any contract or agreement to provide compensation or benefits to any individual.
(b) With respect to each Company Plan, the Company has delivered or made available to Parent ATMI a true current, accurate and complete copy (or, to the extent no such copy exists, an accurate description) thereof and, to the extent applicable: (i) any related trust agreement or other funding instrument, ; (ii) the most recent determination letter of the Internal Revenue Service (the “IRS”)letter, if applicable, ; (iii) any summary plan description and other written communications (or a description of any oral communications) by the Company or its Subsidiaries to their employees the Employees concerning the extent of the benefits provided under a any Company Plan, ; and (iv) for the two three most recent years (A) the Form 5500 and attached schedules, (B) audited financial statements, (CB) actuarial valuation reports and (DC) attorney’s response to an any auditor’s request for information.
(bc) No Company Plan is subject to Title IV of ERISA or Section 412 Except as set forth on Schedule 2.17(c), the consummation of the Codetransactions contemplated by this Agreement will not, no Company Plan is a multiemployer plan (within the meaning of Section 3(37) of ERISA), and neither the Company nor any member of its Controlled Group (defined as any organization which is a member of a controlled group of organizations within the meaning of Code Sections 414(b), (c), (m) or (o)) has any liability (direct or contingent) with respect to, and has never incurred any liability (director or contingent) with respect to, any employee benefit plan subject to Title IV of ERISA. No Company Plan provides health or other welfare benefits to former employees of the Company or its Subsidiaries other than health continuation coverage pursuant to COBRA.
(c) With respect to the Company Plans, except to the extent that the inaccuracy of any of the representations set forth in this paragraph (c), individually or in the aggregate, has not been and would not reasonably be expected to be material to the Company and its Subsidiaries, taken as a whole:
(i) each Company Plan has been established and administered in accordance with its terms and in compliance with the applicable provisions of applicable Law, including ERISA and the Code, and all contributions required to be made under the terms of any Company Plan have been timely made;
(ii) each Company Plan intended to be qualified under Section 401(a) of the Code has received a favorable determinationPlan, advisory or opinion letter, as applicable, from the IRS that it is so qualified and nothing has occurred that would reasonably be expected to cause the loss of such qualified status of such Company Plan;
(iii) there is no Action (including any investigation, audit or other administrative proceeding) 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 the Company, threatened, relating to the Company Plans, any fiduciaries thereof with respect to their duties to the Company Plans or the assets of any of the trusts under any of the 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;
(iv) neither the Company nor its Subsidiaries nor any of their Affiliates has incurred any direct or indirect liability under ERISA or the Code in connection with the termination of, withdrawal from or failure to fund, any Company Plan or other retirement plan or arrangement, and no fact or event exists that would reasonably be expected to give rise to any such liability; and
(v) the Company and its Subsidiaries do not maintain any Company Plan that is a “group health plan” (as such term is defined in Section 5000(b)(1) of the Code) that has not been administered and operated in all respects in compliance with the applicable requirements of Section 601 of ERISA and Section 4980B(b) of the Code, and the Company and its Subsidiaries are not subject to any liability, including additional contributions, fines, penalties or loss of Tax deductions, as a result of such administration and operation; and
(d) None of the Company Plans provides for payment of a benefit, the increase of a benefit amount, the payment of a contingent benefit, the acceleration of a payment or the 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 hereby (either alone or in conjunction with any other event). None of the Company Plans or any other plan agreement or arrangement in effect immediately prior to the Closing could result separately or in the aggregate in connection with the transactions contemplated by this Agreement (either alone or in conjunction with any other event) in the payment by the Company or any of ATMI or ATMI Sub to any Employee of any money or other property, or accelerate or provide any other rights or benefits to any Employee, whether or not such payment would constitute “excess a parachute payment” within the meaning of Code (as defined in Article 6) Section 280G of the Code.
(e) Each Company Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A(d)(1) of the Code has complied in form and operation with the requirements of Section 409A of the Code. No current or former employee, director or other service provider is entitled to any gross-up, make-whole or other additional payment from the Company or any of its Subsidiaries in respect of any Tax (including Federal, state, local or foreign income, excise or other Taxes (including Taxes imposed under Section 409A and 4999 of the Code)) or interest or penalty related thereto.280G.
Appears in 1 contract
Samples: Merger Agreement (Atmi Inc)
Benefit Plans. (a) The Disclosure Schedule identifies each Pension Plan, including without limitation any such plan that is excluded from coverage by Section 3.11(a) 4 of the Company Disclosure Letter sets forth ERISA or is a true and complete list, as of the date hereof, of each “employee benefit plan” ("Multiemployer Plan" within the meaning of section 3(3Section 3(37) or 4001(a)(3) of ERISA, that the Company or any other ERISA Affiliate sponsors, maintains, contributes to, is required to contribute to or has or could have any liability of any nature, whether known or unknown, direct or indirect, fixed or contingent. To the knowledge of the Company, each such Pension Plan that is a Multiemployer Plan has been operated in all material respects in accordance with its terms and in compliance in all material respects with the applicable provisions of ERISA, the Code and other Applicable Law. Each such other Pension Plan has been operated in all material respects in accordance with its terms and in compliance in all material respects with the applicable provisions of ERISA, the Code and all other Applicable Law. All Pension Plans that are intended to be qualified under the provisions of Section 401(a) of the Employee Retirement Income Security Act Code satisfy in form and operation all applicable qualification requirements and have not received in the preceding seven (7) years or committed to receive a transfer of 1974 (“ERISA”))assets and/or liabilities or spin-off from another plan, “multiemployer plan” (except transfers, which were intended to qualify as transfers from eligible rollover distributions within the meaning of ERISA section 3(37Code Section 402(c)(4)) and all stock purchase, stock option, phantom stock or other equity-based plan, severance, employment, collective bargaining, 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 or required in the future as a result of the transactions contemplated by this Agreement or otherwise), whether formal or informal, written or oral, legally binding or not, under which any current or former employee, director or consultant of . Neither the Company nor any ERISA Affiliate has sponsored, maintained or its Subsidiaries contributed to any Pension Plan which, during the preceding seven (7) years, has been terminated, including by way of merger with or any of their dependents) has any present or future right to compensation or benefits or the Company or its Subsidiaries has had or has any present or future liability or with respect to which it is otherwise bound (collectively, the “Company Plans”). With respect to each Company into another Pension Plan, the Company has made available to Parent a true and complete copy thereof and, to the extent applicable: (i) any related trust agreement or other funding instrument, (ii) the most recent determination letter of the Internal Revenue Service (the “IRS”), if applicable, (iii) any summary plan description and other written communications (or a description of any oral communications) by the Company or its Subsidiaries to their employees concerning the extent of the benefits provided under a Company Plan, and (iv) for the two most recent years (A) the Form 5500 and attached schedules, (B) audited financial statements, (C) actuarial valuation reports and (D) attorney’s response to an auditor’s request for information.
(b) No Company Pension Plan is now or has in the past seven (7) years been "top-heavy" pursuant to Section 416 of the Code.
(c) The Disclosure Schedule sets forth the name of each ERISA Affiliate.
(d) Neither the Company nor any ERISA Affiliate has or could have any liability of any nature, whether known or unknown, direct or indirect, fixed or contingent, to any Pension Plan, the Pension Benefit Guaranty Corporation or any other person, arising directly or indirectly under Title IV of ERISA other than liability pursuant to Section 4007 for premiums which are not yet due (without regard to any waiver). No "reportable event," within the meaning of Section 4043 of ERISA, has occurred with respect to any Pension Plan subject to Title IV of ERISA. Neither the Company nor any ERISA Affiliate has ceased operations at any facility or withdrawn from any Pension Plan in a manner which could subject the Company or any ERISA Affiliate to liability under Section 412 4062(e), 4063 or 4064 of ERISA. Neither the CodeCompany nor any ERISA Affiliate maintains, no Company contributes to or has participated in or agreed to participate in any Pension Plan that is a multiemployer Multiemployer Plan. Neither the Company nor any ERISA Affiliate has been a party to a sale of assets to which Section 4204 of ERISA applied with respect to which it could incur any withdrawal liability (including any contingent or secondary withdrawal liability) to any Multiemployer Plan. Neither the Company nor any ERISA Affiliate has incurred, or has experienced an event that will, within the ensuing twelve (12) months, result in, a "complete withdrawal" or "partial withdrawal," as such terms are defined respectively in Sections 4203 and 4205 of ERISA, with respect to a Pension Plan which is a Multiemployer Plan, and nothing has occurred that could result in such a complete or partial withdrawal. Neither the Company nor any ERISA Affiliate has incurred a decline in contributions to any Multiemployer Plan such that, if the current rate of contributions continues, a seventy percent (70%) decline in contributions (as defined in Section 4205 of ERISA) will occur within the next three (3) plan years.
(e) The Disclosure Schedule identifies each Welfare Plan, whether insured or otherwise, including without limitation any such plan that is a Multiemployer Plan within the meaning of Section 3(37) of ERISA), and neither the Company nor any member of its Controlled Group (defined as any organization which is a member of a controlled group of organizations within the meaning of Code Sections 414(b), (c), (m) or (o)) has any liability (direct or contingent) with respect to, and has never incurred any liability (director or contingent) with respect to, any employee benefit plan subject to Title IV of ERISA. No Company Plan provides health or other welfare benefits to former employees of the Company or its Subsidiaries other than health continuation coverage pursuant any ERISA Affiliate sponsors, maintains, contributes to, is required to COBRA.
(c) With respect to the Company Planscontribute to, except to the extent that the inaccuracy or has or could have any liability of any nature, whether known or unknown, direct or indirect, fixed or contingent. To the knowledge of the representations set forth in this paragraph (c)Company, individually or in the aggregate, has not been and would not reasonably be expected to be material to the Company and its Subsidiaries, taken as each such Welfare Plan that is a whole:
(i) each Company Multiemployer Plan has been established and administered operated in all material respects in accordance with its terms and in compliance in all material respects with applicable provisions of ERISA, the Code and other Applicable Law. Each such other Welfare Plan has been operated in all material respects in accordance with its terms and in compliance in all material respects with the applicable provisions of applicable LawERISA, including ERISA and the Code, the Health Insurance Portability and Accountability Act of 1996, Public Law 104-191 as codified in the Code and ERISA ("HIPAA") and corresponding regulations, including the HIPAA Portability Regulations and the HIPAA Privacy, Security and other Administrative Simplification Regulations and all contributions required to be made other Applicable Law. Benefits under the terms of any Company each Welfare Plan have been timely made;
(ii) each Company Plan intended to be qualified under Section 401(a) of the Code has received a favorable determination, advisory or opinion letter, as applicable, from the IRS that it is so qualified and nothing has occurred that would reasonably be expected to cause the loss of such qualified status of such Company Plan;
(iii) there is no Action (including any investigation, audit or other administrative proceeding) are fully insured 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 the Company, threatened, relating an insurance company unrelated to the Company Plansor any ERISA Affiliate. No insurance policy or contract requires or permits retroactive increase in premiums or payments due thereunder. Neither the Company nor any ERISA Affiliate has established or contributed to, is required to contribute to or has or could have any fiduciaries thereof liability of any nature, whether known or unknown, direct or indirect, fixed or contingent, with respect to their duties to any "voluntary employees' beneficiary association" within the Company Plans or the assets of any of the trusts under any of the 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;
(iv) neither the Company nor its Subsidiaries nor any of their Affiliates has incurred any direct or indirect liability under ERISA or the Code in connection with the termination of, withdrawal from or failure to fund, any Company Plan or other retirement plan or arrangement, and no fact or event exists that would reasonably be expected to give rise to any such liability; and
(v) the Company and its Subsidiaries do not maintain any Company Plan that is a “group health plan” (as such term is defined in Section 5000(b)(1) of the Code) that has not been administered and operated in all respects in compliance with the applicable requirements meaning of Section 601 of ERISA and Section 4980B(b501(c)(9) of the Code, and the Company and its Subsidiaries are not subject to any liability, including additional contributions, fines, penalties or loss of Tax deductions, as a result of such administration and operation; and
(d) None of the Company Plans provides for payment of a benefit, the increase of a "welfare benefit amount, the payment of a contingent benefit, the acceleration of a payment or the 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 hereby (either alone or in conjunction with any other event). None of the Company Plans or any other plan agreement or arrangement in effect immediately prior to the Closing could result separately or in the aggregate in connection with the transactions contemplated by this Agreement (either alone or in conjunction with any other event) in the payment of any “excess parachute payment” fund" within the meaning of Section 280G 419 of the Code.
(e) Each Company Plan that is a “nonqualified deferred compensation plan” , "qualified asset account" within the meaning of Section 409A(d)(1) 419A of the Code has complied in form and operation with or "multiple employer welfare arrangement" within the requirements meaning of Section 409A of the Code. No current or former employee, director or other service provider is entitled to any gross-up, make-whole or other additional payment from the Company or any of its Subsidiaries in respect of any Tax (including Federal, state, local or foreign income, excise or other Taxes (including Taxes imposed under Section 409A and 4999 of the Code3(40)) or interest or penalty related thereto.
Appears in 1 contract
Benefit Plans. (aSchedule 3.1(u) Section 3.11(a) of the Company Disclosure Letter hereto sets forth a true and complete list, as of the date hereof, of each “employee benefit plan” (within the meaning of section 3(3) of the Employee Retirement Income Security Act of 1974 (“ERISA”)), “multiemployer plan” (within the meaning of ERISA section 3(37)) and all stock purchase, stock option, phantom stock deferred compensation, incentive compensation, severance or other equity-based plantermination pay plans, severanceagreements and arrangements and all "employee benefit plans", employment, collective bargaining, change-in-control, fringe benefit, bonus, incentive, deferred compensation as defined in Section 3(3) of ERISA and all other employee fringe benefit and employee compensation plans, agreements, programs, policies or other arrangements, whether established, sponsored, maintained or not subject offered by the Corporation or to ERISA (including any funding mechanism therefor now in effect which the Corporation contributed or required in the future as a result of the transactions contemplated by this Agreement or otherwise), whether formal or informal, written or oral, legally binding or not, under which any is obligated to contribute thereunder for current or former employee, director or consultant employees of the Company Corporation or its Subsidiaries (which are otherwise sponsored or any of their dependents) has any present maintained by third parties in an "affiliated service group" or future right to compensation "controlled group" in which the Corporation is a member as such terms are defined or benefits otherwise utilized in ERISA or the Company or its Subsidiaries has had or has any present or future liability or Code (the "Corporation Plans"). Schedule 3.1(u) separately identifies each Corporation Plan which is a "multiemployer plan", as defined in Section 3(37) of ERISA ("Multiemployer Plan"). True, correct and complete copies of the following documents, with respect to which it each of the Corporation Plans, have been made available or delivered to Purchaser by the Sellers, (a) any plans and related trust documents, and amendments thereto; (b) the last three filed Forms 5500; (c) the last Internal Revenue Service determination letter, if applicable; and (d) summary plan descriptions. The Corporation is not and has never been a member of any "affiliated service group" or "controlled group" as such terms are defined or otherwise bound (collectively, utilized in ERISA or the “Company Plans”)Code. With respect to each Company Plan, the Company has made available to Parent a true Corporation Plans and complete copy thereof and, to the extent applicable: (i) any related trust agreement or other funding instrument, (ii) the most recent determination letter arrangements of the Internal Revenue Service (the “IRS”), if applicable, (iii) any summary plan description and other written communications (or a description of any oral communications) by the Company or Corporation pertaining to its Subsidiaries to their employees concerning the extent of the benefits provided under a Company Plan, and (iv) for the two most recent years (A) the Form 5500 and attached schedules, (B) audited financial statements, (C) actuarial valuation reports and (D) attorney’s response to an auditor’s request for information.
(b) No Company Plan is subject to Title IV of ERISA or Section 412 of the Code, no Company Plan is a multiemployer plan (within the meaning of Section 3(37) of ERISA), and neither the Company nor any member of its Controlled Group (defined as any organization which is a member of a controlled group of organizations within the meaning of Code Sections 414(b), (c), (m) or (o)) has any liability (direct or contingent) with respect to, and has never incurred any liability (director or contingent) with respect to, any employee benefit plan subject to Title IV of ERISA. No Company Plan provides health or other welfare benefits to former employees of the Company or its Subsidiaries other than health continuation coverage pursuant to COBRA.
(c) With respect to the Company Plans, except to the extent that the inaccuracy of any of the representations set forth in this paragraph (c), individually or in the aggregate, has not been and would not reasonably be expected to be material to the Company and its Subsidiaries, taken as a wholeemployees:
(i) each Company Plan has been established the Corporation Plans intended to qualify under Section 401 of the Code and administered in accordance with its terms and in compliance with the applicable provisions trusts maintained pursuant thereto are exempt form federal income taxation under section 501 of applicable Law, including ERISA and the Code, and all contributions required nothing has occurred with respect to be made under the terms operation of the Corporation Plans which could cause the loss of such qualification or exemption or the imposition of any Company Plan have been timely madeliability, penalty or tax under ERISA or the Code which may result in a material adverse effect on the Corporation or the Business;
(ii) each Company Plan intended to be qualified under Section 401(a) the Corporation Plans have been maintained in accordance with their terms and with all provisions of the Code has received and ERISA (including rules and regulations thereunder) and other applicable federal and state laws and regulations, except where the failure to so maintain would not result in a favorable determination, advisory material adverse effect on the Corporation or opinion letter, as applicable, from the IRS that it is so qualified and nothing has occurred that would reasonably be expected to cause the loss of such qualified status of such Company PlanBusiness;
(iii) there is no Action (including plan or employment arrangement exists that could result in the payment by the Corporation to any investigationcurrent, audit former, or future director or employee of the Corporation of any money or other administrative proceeding) by the Department of Labor, the Pension Benefit Guaranty Corporation, the IRS property rights or accelerate or provide any other Governmental Entity rights or by any plan participant or beneficiary pending, or to the Knowledge of the Company, threatened, relating to the Company Plans, any fiduciaries thereof with respect to their duties to the Company Plans or the assets of any of the trusts under any of the Company Plans (other than routine claims for benefits) nor are there facts or circumstances that exist that could reasonably give rise benefits to any such Actions;
(iv) neither the Company nor its Subsidiaries nor any of their Affiliates has incurred any direct employee or indirect liability under ERISA or the Code in connection with the termination of, withdrawal from or failure to fund, any Company Plan or other retirement plan or arrangement, and no fact or event exists that would reasonably be expected to give rise to any such liability; and
(v) the Company and its Subsidiaries do not maintain any Company Plan that is a “group health plan” (as such term is defined in Section 5000(b)(1) of the Code) that has not been administered and operated in all respects in compliance with the applicable requirements of Section 601 of ERISA and Section 4980B(b) of the Code, and the Company and its Subsidiaries are not subject to any liability, including additional contributions, fines, penalties or loss of Tax deductions, director as a result of such administration and operation; and
(d) None of the Company Plans provides for payment of a benefit, the increase of a benefit amount, the payment of a contingent benefit, the acceleration of a payment or the 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 hereby (either alone or in conjunction with any other event). None of the Company Plans or any other plan agreement or arrangement in effect immediately prior to the Closing could result separately or in the aggregate in connection with the transactions contemplated by this Agreement (either alone Agreement, whether or in conjunction with any other event) in the payment of any “excess not such payment, acceleration, or provision would constitute a "parachute payment” " (within the meaning of Section 280G of the Code.) or whether or not some other subsequent action or event would be required to cause such payment, acceleration or provision to be triggered;
(eiv) Each Company the Corporation does not have any employee who cannot be dismissed on not more than the notice required by common law or statute without further liability;
(v) no Corporation Plan that is a “nonqualified deferred compensation plan” within continues any benefit to any employee or former employee of the meaning Corporation other than continuation of health coverage to the extent required by Section 409A(d)(1) 4980B of the Code and Part 6 of Subtitle B of Part I of ERISA (and comparable provisions of state law) or continuation of life insurance benefits to the extent required by state law ("Continuation Coverage"), and the Corporation has complied with all requirements relating to Continuation Coverage is not subject to any liability, penalty or tax in form connection therewith;
(vi) no Corporation Plan is a defined benefit pension plan and operation with neither the requirements Corporation nor any member of Section 409A of any "affiliated service group" or "controlled group" as such terms are defined or otherwise utilized in ERISA or the Code. No current Code has ever maintained or former contributed to any defined benefit plan or Multiemployer Plan;
(vii) no leased employee, director temporary employee, contingent employee, or independent contractor ("Contingent Worker") has a claim for benefits under any Corporation Plan, other than a claim under a Corporation Plan with respect to which the Corporation has recognized the Contingent Worker as a participant in said Corporation Plan; and
(viii) there are no actions, suits or claims pending (other than routine claims for benefits) or threatened against any Corporation Plan or against the Corporation or any individual or other service provider is entitled entity that may have a claim for indemnification against the Corporation with respect to any gross-up, make-whole Corporation Plan or other additional payment from the Company or any of its Subsidiaries in respect of any Tax (including Federal, state, local or foreign income, excise or other Taxes (including Taxes imposed under Section 409A and 4999 of the Code)) or interest or penalty related theretoassets.
Appears in 1 contract
Samples: Agreement for Sale of Shares (Computer Network Technology Corp)
Benefit Plans. (a) Section 3.11(aAll Benefit Plans (i) of the Company Disclosure Letter sets forth a true and complete list, as of the date hereof, of each “employee benefit plan” contributed (within the meaning of section 3(3) of the Employee Retirement Income Security Act of 1974 (“ERISA”)or required to be contributed to), “multiemployer plan” sponsored by or maintained by the Bank or its Subsidiaries or ERISA Affiliate, (within the meaning of ERISA section 3(37)ii) and all stock purchase, stock option, phantom stock or other equity-based plan, severance, employment, collective bargaining, 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 or required in the future as a result of the transactions contemplated by this Agreement or otherwise), whether formal or informal, written or oral, legally binding or not, under which any current or former employee, director director, officer, independent contractor, or consultant of the Company other service providers, non-employee directors, or its Subsidiaries (consultant, or any of their dependents) , of the Bank or its Subsidiaries has any present or future right to compensation or benefits or the Company (iii) under which Bank or its Subsidiaries has had has, or has could reasonably be expected to have, any present or future liability or with respect are referred to which it is otherwise bound (collectively, herein as the “Company Bank Plans”). .” Each material Bank Plan is identified on Section 3.11(a) of the Bank Disclosure Letter.
(b) With respect to each Company Bank Plan, before the Company date hereof, the Bank has furnished or made available to Parent Purchaser a true current, accurate and complete copy thereof and, to the extent applicableof: : (i) the current plan document and all amendments thereto, (ii) all current employee handbooks, manuals and policies, (iii) any related trust agreement agreements, insurance Contracts, or other funding instrumentinstruments or arrangements and amendments related to such Bank Plan, (iiiv) the most recent determination or opinion letter of the Internal Revenue Service (the “IRS”), if applicable, (iiiv) any the most recent summary plan description provided to participants and other written communications (or a description all summaries of any oral communications) by the Company or its Subsidiaries to their employees concerning the extent of the benefits provided under a Company Planmaterial modifications, and (ivvi) for the two most recent three years (A) the Form 5500 and attached schedules, (B) audited financial statements, statements and (C) actuarial valuation reports reports. The Bank also has furnished and made available to Purchaser copies of any 280G calculation prepared (D) attorney’s response to an auditor’s request for information.
(b) No Company Plan is subject to Title IV of ERISA whether or Section 412 of the Code, no Company Plan is a multiemployer plan (within the meaning of Section 3(37) of ERISA), and neither the Company nor any member of its Controlled Group (defined as any organization which is a member of a controlled group of organizations within the meaning of Code Sections 414(b), (c), (m) or (o)) has any liability (direct or contingentnot final) with respect toto any employee, and has never incurred any liability (director or contingent) with respect to, any employee benefit plan subject to Title IV of ERISA. No Company Plan provides health or other welfare benefits to former employees independent contractor of the Company Bank or its Subsidiaries other than health continuation coverage pursuant to COBRAin connection with the Transactions (together with the underlying documentation on which such calculation is based).
(c) With respect to the Company Planseach Bank Plan, except to the extent that the inaccuracy of any of the representations set forth in this paragraph (c)Section 3.11, individually or in the aggregate, has not been and would not reasonably be expected to be result in a material liability to the Company and Bank or its Subsidiaries, taken as a whole:
(i) each Company Bank Plan has been established and administered in accordance with its terms and in compliance with the applicable provisions of applicable Law, including ERISA and the Code, and other applicable Law, and all contributions required to be made under the terms of any Company Bank Plan have been timely made;
(ii) the Bank and each Company ERISA Affiliate are in compliance in all respects with the provisions of ERISA, the Code and all Laws relating to each such Bank Plan;
(iii) there are no unfunded obligations of the Bank or of any Bank Subsidiary under any Bank Plan that have not been accrued, except (i) where such accrual is not necessary under GAAP and (ii) for those liabilities, costs and expenses associated with the termination of any Bank Plan in the normal course of terminations;
(iv) each Bank Plan intended to be qualified under Section 401(a) of the Code (A) is so qualified and the trust maintained pursuant thereto is exempt from federal income taxation under Section 501 of the Code; (B) has received a favorable determination, advisory or and/or opinion letter, as applicable, from the IRS that it is so qualified and and, to the knowledge of the Bank, nothing has occurred since the date of such letter that would reasonably be expected to cause the loss of such qualified status of such Company Bank Plan; (C) is a volume submitter or prototype plan whose sponsor obtained a favorable opinion letter and on which letter the Bank is permitted to rely; and (D) nothing has occurred with respect to the operation of such Bank Plan that could reasonably be expected to cause the loss of such qualification (or exemption) or the imposition of any material liability, penalty or Tax under ERISA, the Code, or other applicable Laws;
(iiiv) there is no Action (including any investigation, audit or other administrative proceeding) by the Department of Labor, the Pension Benefit Guaranty CorporationPBGC, the IRS or any other Governmental Entity or by any plan participant or beneficiary pendingpending or, or to the Knowledge knowledge of the CompanyBank, threatened, threatened relating to the Company Bank Plans, any fiduciaries thereof with respect to their duties to the Company Bank Plans or the assets of any of the trusts under any of the Company Bank Plans (other than routine claims for benefits) nor nor, to the knowledge of the Bank, are there facts or circumstances that exist that could reasonably give rise to any such Actions;
(iv) neither , and no written or oral communication has been received from the Company nor its Subsidiaries nor PBGC in respect of any Bank Plan subject to Title IV of their Affiliates has incurred ERISA concerning the funded status of any direct such plan or indirect liability under ERISA or the Code any transfer of assets and liabilities from any such plan in connection with the termination of, withdrawal from or failure to fund, any Company Plan or other retirement plan or arrangement, and no fact or event exists that would reasonably be expected to give rise to any such liabilityTransactions; and
(vvi) to the Company and its Subsidiaries do not maintain any Company Plan that is a knowledge of the Bank, no “group health planreportable event” (as such term is defined in Section 5000(b)(14043 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 Bank Plan.
(d) Neither the Bank, its Subsidiaries nor any of their ERISA Affiliates has, within the preceding six (6) years, maintained, contributed to, been required to contribute, or otherwise had any liability with respect to a plan subject to Title IV or Section 302 of ERISA or Section 412 or 4971 of the Code. No Bank Plan is a “multiemployer plan” (as defined in Section 3(37) or Section 4001(a)(3) of ERISA) and neither the Bank, its Subsidiaries nor any of their ERISA Affiliates has at any time sponsored or contributed to, or has or had any liability or obligation in respect of, any multiemployer plan. None of the Bank nor its Subsidiaries have any current or potential obligation to provide post-retirement health, life or other welfare benefits (other than as required by Section 4980B of the Code or any similar applicable Law) and none of the Bank Plans provides for post-employment or retiree welfare, life or health insurance benefits for any participant or beneficiary of a participant, except as may be required under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (or similar state Laws). Neither the Bank nor any ERISA Affiliate has incurred any liability under Title IV of ERISA that has not been paid in full.
(e) No Bank Plan or Contract to which the Bank or any of its Subsidiaries is a party exists 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, and neither the execution of this Agreement, nor the consummation of the Transactions will (either alone or in combination with another event) (i) result in severance pay or any increase in severance pay, unemployment compensation or any other payment or benefit upon any termination of employment after the date of this Agreement, (ii) 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 the amount payable or increase the amount of compensation or benefit due to any employee, director, officer or independent contractor, (iii) limit or restrict the right of the Bank to merge, amend, or terminate any of the Bank Plans, (iv) directly or indirectly cause the Bank to transfer or set aside any assets to fund any benefits under any Bank Plan, (v) otherwise give rise to any material liability under any Bank Plan, (vi) result in the payment of payments or benefit that would constitute an “excess parachute payment” (as such term is defined in Section 280G(b)(1) of the Code) that has not been administered and operated in all respects in compliance with the applicable requirements of Section 601 of ERISA and Section 4980B(b) of the Code, and the Company and its Subsidiaries are not subject to any liability, including additional contributions, fines, penalties or loss of Tax deductions, as a result of such administration and operation; and
(d) None of the Company Plans provides for payment of a benefit, the increase of a benefit amount, the payment of a contingent benefit, the acceleration of a payment or the 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 hereby (either alone or in conjunction with any other event). None of the Company Plans or any other plan agreement or arrangement in effect immediately prior to the Closing could result separately or in the aggregate in connection with the transactions contemplated by this Agreement (either alone or in conjunction with any other event) in the payment of any “excess parachute payment” within the meaning of Section 280G of the Code.
(e) Each Company Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A(d)(1) of the Code has complied in form and operation with the requirements of Section 409A of the Code. No current or former employee, director director, officer or other service provider is entitled to any gross-up, make-whole or other additional payment from independent contractor of the Company Bank or any of its Subsidiaries in respect of any Tax Subsidiaries.
(including Federal, state, local or foreign income, excise or other Taxes (including Taxes imposed under Section 409A and 4999 f) No Bank Plan is maintained outside the jurisdiction of the Code)) or interest or penalty related theretoUnited States.
Appears in 1 contract
Samples: Merger Agreement (Iberiabank Corp)
Benefit Plans. (a) Section 3.11(a) of the Company Disclosure Letter sets forth Schedule 3.1.21 contains a true and complete list, as list of each Benefit Plan and identifies each of the date hereofBenefit Plans that is a Pension Plan. Except as provided in any Collective Agreement or in Schedule 3.1.21, of each “employee benefit plan” (within neither the meaning of section 3(3) of Company nor the Employee Retirement Income Security Act of 1974 (“ERISA”)), “multiemployer plan” (within the meaning of ERISA section 3(37)) and all stock purchase, stock option, phantom stock Subsidiary has a formal plan or other equity-based plan, severance, employment, collective bargaining, change-in-control, fringe benefit, bonus, incentive, deferred compensation and all other employee benefit and compensation plans, agreements, programs, policies or other arrangementscommitment, 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), whether formal or informal, written or oral, legally binding or not, under which to create any current additional plan that would be a Benefit Plan or former employeeto modify, director amend or consultant of the Company or its Subsidiaries (or change any of their dependents) has any present or future right to compensation or benefits or the Company or its Subsidiaries has had or has any present or future liability or with respect to which it is otherwise bound (collectively, the “Company Plans”). With respect to each Company Benefit Plan, the Company has except such modification, amendment or change as may be required by Applicable Laws or be made available to Parent a true and complete copy thereof and, to the extent applicable: (i) any related trust agreement or other funding instrument, (ii) the most recent determination letter of the Internal Revenue Service (the “IRS”), if applicable, (iii) any summary plan description and other written communications (or a description of any oral communications) by the Company or secure its Subsidiaries to their employees concerning the extent of the benefits provided under a Company Plan, and (iv) for the two most recent years (A) the Form 5500 and attached schedules, (B) audited financial statements, (C) actuarial valuation reports and (D) attorney’s response to an auditor’s request for informationcontinued registration with each applicable Governmental Authority.
(b) No Company Plan is subject With respect to Title IV of ERISA or Section 412 each of the CodeBenefit Plans, no Company the Seller has made available to the Buyer true and complete copies of each of the following documents:
(i) a copy of the current Benefit Plan is (including all amendments thereto and any current plan summaries or employees booklets related thereto);
(ii) a multiemployer plan (within copy of the meaning of Section 3(37) of ERISA)current trust agreement or insurance contract, as applicable, all investment management, subscription, participation and record keeping agreements related thereto, and neither the Company nor most recent financial statements thereof; and
(iii) in respect of any member Pension Plan, a copy of its Controlled Group (defined as the last annual information return and most recent actuarial report filed with any organization which is a member of a controlled group of organizations within the meaning of Code Sections 414(b), (c), (m) or (o)) has any liability (direct or contingent) with respect toapplicable Governmental Authority, and has never incurred any liability (director or contingent) with respect to, any employee benefit plan subject to Title IV of ERISA. No Company Plan provides health or other welfare benefits to former employees a copy of the Company or its Subsidiaries other than health continuation coverage pursuant to COBRAcurrent statement of investment policies and procedures.
(c) With respect Except as disclosed in Schedule 3.1.21, all of the Benefit Plans have been established, invested and administered in all material respects in accordance with, and are registered where required by, Applicable Law and all material obligations regarding the Benefit Plans (other than benefit payments not yet made) have been satisfied and to the knowledge of the Seller, there are no outstanding material defaults or violations by any party thereto, or Taxes owing under any Benefit Plan.
(d) To the knowledge of the Seller, neither the Company Plans, except to nor the extent Subsidiary has been advised that the inaccuracy of any of the representations set forth in this paragraph (c)Benefit Plans, individually or in the aggregateany related funding media, has not been and would not reasonably be expected is subject to be material to the Company and its Subsidiaries, taken as a whole:
(i) each Company Plan has been established and administered in accordance with its terms and in compliance with the applicable provisions of applicable Law, including ERISA and the Code, and all contributions required to be made under the terms of any Company Plan have been timely made;
(ii) each Company Plan intended to be qualified under Section 401(a) of the Code has received a favorable determination, advisory or opinion letter, as applicable, from the IRS that it is so qualified and nothing has occurred that would reasonably be expected to cause the loss of such qualified status of such Company Plan;
(iii) there is no Action (including any pending investigation, audit examination or other administrative proceeding) , action or claim instituted by the Department of Laborany applicable Governmental Authority, 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 the Company, threatened, relating to the Company Plans, any fiduciaries thereof with respect to their duties to the Company Plans or the assets of any of the trusts under any of the Company Plans other party (other than routine claims for benefits) nor are there facts or circumstances that exist that could reasonably give rise to any such Actions;
(iv) neither the Company nor its Subsidiaries nor any of their Affiliates has incurred any direct or indirect liability under ERISA or the Code in connection with the termination of, withdrawal from or failure to fund, any Company Plan or other retirement plan or arrangement), and to the knowledge of the Seller, there exists no fact state of facts which after notice or event exists that would lapse of time or both could reasonably be expected to give rise to any such liability; and
(v) investigation, examination, proceeding, action or claim or to affect the Company and its Subsidiaries do not maintain registration of any Company Plan that is a “group health plan” (as such term is defined in Section 5000(b)(1) of the Code) that has not been administered and operated in all respects in compliance with the applicable requirements of Section 601 of ERISA and Section 4980B(b) of the Code, and the Company and its Subsidiaries are not subject to any liability, including additional contributions, fines, penalties or loss of Tax deductions, as a result of such administration and operation; and
(d) None of the Company Plans provides for payment of a benefit, the increase of a benefit amount, the payment of a contingent benefit, the acceleration of a payment or the 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 hereby (either alone or in conjunction with any other event). None of the Company Plans or any other plan agreement or arrangement in effect immediately prior to the Closing could result separately or in the aggregate in connection with the transactions contemplated by this Agreement (either alone or in conjunction with any other event) in the payment of any “excess parachute payment” within the meaning of Section 280G of the CodeBenefit Plans.
(e) Each Company Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A(d)(1) of the Code has complied in form and operation with the requirements of Section 409A of the Code. No current All contributions or former employee, director or other service provider is entitled premiums required to any gross-up, make-whole or other additional payment from be made by the Company or any of its Subsidiaries in respect of any Tax (including Federal, state, local or foreign income, excise or other Taxes (including Taxes imposed the Subsidiary under Section 409A and 4999 the terms of the Code)Benefit Plans or by Applicable Law (other than those not due as of the date hereof) have been made, and neither the Company nor the Subsidiary has, nor will it have, any liability with respect to benefits or interest rights provided under any Benefit Plan occurring or penalty related theretoarising as a consequence of the completion of the transactions contemplated herein including, without limitation, a change of control of the Company or the Subsidiary.
Appears in 1 contract
Samples: Share Purchase Agreement (Universal American Financial Corp)
Benefit Plans. (a) Section 3.11(a) of the The Company Disclosure Letter sets forth has provided to Parent a true and complete list, as of the date hereof, list of each “employee benefit plan” (within the meaning of section Section 3(3) of the Employee Retirement Income Security Act of 1974 1974, as amended (“ERISA”)), “multiemployer plan” (within the meaning of ERISA section 3(37)) and all stock purchase, stock option, phantom stock or other equity-based plan, severance, employment, collective bargaining, 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 or required in the future as a result of the transactions contemplated by this Agreement or otherwise), whether formal or informal, written or oralwritten, legally binding or not, under that is currently in effect, was maintained since December 31, 2004 or which any current has been approved before the date hereof but is not yet effective, for the benefit of (i) directors or former employee, director or consultant employees of the Company or its Subsidiaries any other persons performing services for the Company, (ii) former directors or any employees of their dependents) has any present or future right to compensation or benefits or the Company or its Subsidiaries has had any other persons formerly performing services for the Company, or has any present (iii) beneficiaries of anyone described in (i) or future liability or with respect (ii). All such plans, agreements, programs, policies and arrangements shall be collectively referred to which it is otherwise bound (collectively, as the “Company Plans”). .” With respect to each Company Plan, the Company has furnished or made available to Parent a true current, accurate and complete copy thereof and, to the extent applicable: (i) any related trust agreement or other funding instrument, (ii) the most recent determination letter of the Internal Revenue Service (the “IRS”), if applicable, (iii) any summary plan description with each summary of material modifications thereto, if any, employee handbooks and other written communications (or a description of any oral communications) by the Company or its Subsidiaries to their employees concerning the extent of the benefits provided under a Company Plan, Plan and (iv) for the two three (3) most recent years (A) the Form 5500 Forms 5500, 941 and 1041 and attached schedules, (B) audited financial statements, and (C) actuarial valuation reports and (D) attorney’s response to an auditor’s request for informationreports.
(b) No Each Company Plan intended to be qualified under Section 401(a) of the Code has received a favorable determination, advisory and/or opinion letter, as applicable, from the IRS that it is subject so qualified and, to Title IV the knowledge of the Company, nothing has occurred since the date of such letter that would reasonably be expected to cause the loss of such qualified status of such Company Plan or cause the imposition of any penalty or Tax liability.
(c) The Company is not liable for, and the Company will not be liable for, any liability of any “ERISA Affiliate” (hereby defined to include any trade or business, whether or not incorporated, other than the Company, which has employees who are or have been at any date of determination occurring within the preceding six (6) years, treated pursuant to Section 4001(a)(14) of ERISA and/or Section 414 of the Code as employees of a single employer which includes the Company) including predecessors thereof) with regard to any Company Plan maintained, sponsored or contributed to by an ERISA Affiliate (if a like definition of Company Plan were applicable to the ERISA Affiliate in the same manner as it applies to the Company) (each such Company Plan for an ERISA Affiliate being an “ERISA Affiliate Plan”), including, without limitation: (i) withdrawal liability arising under Title IV, Subtitle E, Part 1 of ERISA; (ii) liabilities to the Pension Benefit Guaranty Corporation (“PBGC”); (iii) liabilities under Section 412 of the CodeCode or Section 302(a)(2) of ERISA; (iv) liabilities resulting from the failure on the part of the Company, no any ERISA Affiliate, each Company Plan is a multiemployer plan or each Company Plan “sponsor” or “administrator” (within the meaning of Section 3(16) of ERISA) to comply in all respects with the applicable requirements of Section 4980B of the Code and Section 601 et seq. of ERISA; or (v) liabilities resulting from an ERISA Affiliate Plan’s failure to satisfy the reporting and disclosure requirements of ERISA and the Code.
(d) Neither the Company nor any ERISA Affiliate has ever maintained or contributed to a multiemployer plan (as defined in Section 3(37) of ERISA), and neither the Company nor any member of its Controlled Group (defined as any organization which is a member of a controlled group of organizations within the meaning of Code Sections 414(b), (c), (m) or (o)) has any liability (direct or contingent) with respect to, and has never incurred any liability (director or contingent) with respect to, any employee benefit plan subject to Title IV of ERISA. No Company Plan provides health or other welfare benefits to former employees of the Company or its Subsidiaries other than health continuation coverage pursuant to COBRA.
(ce) With respect to the Company Plans, except to as disclosed in the extent that the inaccuracy of any Company SEC Documents or in Section 4.12 of the representations set forth in this paragraph (c), individually or in the aggregate, has not been and would not reasonably be expected to be material to the Company and its Subsidiaries, taken as a wholeDisclosure Letter:
(i) each Company Plan has been established and administered in accordance with its terms and in material compliance with the applicable provisions of applicable Law, including ERISA and the Code, and no reportable event, as defined in Section 4043 of ERISA, no prohibited transaction, as described in Section 406 of ERISA or Section 4975 of the Code, or accumulated funding deficiency, as defined in Section 302 of ERISA and 412 of the Code, has occurred with respect to any Company Plan, and all contributions required to be made under the terms of any Company Plan have been timely made;
(ii) each Company Plan intended to be qualified under Section 401(a) the knowledge of the Code has received a favorable determinationCompany, advisory or opinion letter, as applicable, from the IRS that it is so qualified and nothing has occurred that would reasonably be expected to cause the loss of such qualified status of such Company Plan;
(iii) there is no Action (including any investigation, audit or other administrative proceeding) by the Department of Labor, the Pension Benefit Guaranty CorporationPBGC, the IRS or any other Governmental Entity or by any plan participant or beneficiary pending, threatened in writing, or to the Knowledge of the Company, threatened, relating to the Company Plans, any fiduciaries thereof with respect to their duties to the Company Plans or the assets of any of the trusts under any of the Company Plans (other than routine claims for benefits) nor nor, to the knowledge of the Company, are there facts or circumstances that exist that could reasonably give rise to any such Actions;
(iv) neither the Company nor its Subsidiaries nor any of their Affiliates has incurred any direct or indirect liability under ERISA or the Code in connection with the termination of, withdrawal from or failure to fund, any Company Plan or other retirement plan or arrangement, and no fact or event exists that would reasonably be expected to give rise to any such liability; and
(viii) the Company and its Subsidiaries do not maintain any if a Company Plan purports to be a voluntary employees’ beneficiary association (“VEBA”), a request for a determination letter for the VEBA has been submitted to and approved by the IRS that the VEBA is a “group health plan” (as such term is defined in exempt from federal income tax under Section 5000(b)(1) of the Code) that has not been administered and operated in all respects in compliance with the applicable requirements of Section 601 of ERISA and Section 4980B(b501(c)(9) of the Code, and nothing has occurred or is expected to occur that caused or could cause the loss of such qualification or exemption or the imposition of any tax, interest or penalty with respect thereto.
(f) Neither the Company nor any ERISA Affiliate has any obligation to contribute to or provide benefits pursuant to, and its Subsidiaries are not subject to has no other liability of any liabilitykind with respect to, including additional contributions(i) a "multiple employer welfare arrangement" (MEWA) (within the meaning of Section 3(40) of ERISA), fines, penalties or loss (ii) a "plan maintained by more than one employer" (within the meaning of Tax deductions, as a result Section 413(c) of such administration and operation; andthe Code).
(dg) None of the Company Plans provides provide for payment of a benefit, the increase of a benefit amount, the payment of a contingent benefit, benefit or the acceleration of a the payment or the 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 hereby hereby. No amount or benefit that could be received by any "disqualified individual" (either alone or as defined in conjunction Treasury Regulation Section 1.280G-1) with any other event). None of respect to the Company Plans or any other plan agreement or arrangement in effect immediately prior to the Closing could result separately or in the aggregate Subsidiary in connection with the transactions contemplated by this Agreement (either alone or in conjunction combination with any other event, and whether pursuant to a Company Plan or otherwise) in the payment of any “could be characterized as an "excess parachute payment” within the meaning of " (as defined in Section 280G 280G(b)(1) of the Code).
(eh) No Company Plan provides for post-employment welfare benefits except to the extent required by Section 4980B of the Code or applicable state Law.
(i) Each Company Plan that is a “nonqualified deferred compensation plan” within the meaning of subject to Section 409A(d)(1) 409A of the Code has complied in form and operation with the requirements of Section 409A of the Code. No current or former employee, director or other service provider individual is entitled to any gross-up, make-whole or other additional payment from the Company or any of its Subsidiaries in respect of any Tax (including Federalfederal, state, local or foreign income, excise or other Taxes (including Taxes imposed under Section 409A and 4999 of the Code)) or interest or penalty related thereto.
(j) Each Company Plan that is subject to Section 1862(b)(1) of the SSA has been operated in compliance with the secondary payor requirements of Section 1862 thereof.
Appears in 1 contract
Samples: Merger Agreement (Cryolife Inc)
Benefit Plans. (a) Section 3.11(a5.13(a) of the Company Disclosure Letter sets forth contains a true and complete list, as of the date hereof, list of each “employee benefit plan” (within the meaning of section 3(3) of the Employee Retirement Income Security Act of 1974 (“ERISA”)), “multiemployer plan” (within the meaning of ERISA section 3(37)) and all stock purchase, stock option, phantom stock or other equity-based plan, severance, employment, collective bargaining, 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 or required in the future as a result of the transactions contemplated by this Agreement or otherwise), whether formal or informal, written or oral, legally binding or not, Benefit Plan under which (i) any current or former employee, director or consultant of the Company or any of its Subsidiaries (or other than any of their dependentsportfolio company wholly owned by the Funds) (the “Company Employees”) has any present or future right to compensation benefits and which are contributed to, sponsored by or benefits or maintained by the Company or any of its Subsidiaries (other than any portfolio company wholly owned by the Funds) or (ii) the Company or any of its Subsidiaries (other than any portfolio company wholly owned by the Funds) has had or has any present or future liability or with respect liability. All such Benefit Plans shall be collectively referred to which it is otherwise bound (collectively, as the “Company Benefit Plans”). .
(b) With respect to each Company Plan, Benefit Plan the Company has made available to Parent the Purchaser a true current, accurate and complete copy (or, to the extent no such copy exists, an accurate description) thereof and, to the extent applicable: (i) any related trust agreement or other funding instrument, ; (ii) the most recent determination letter of the Internal Revenue Service (the “IRS”)letter, if applicable, ; (iii) any summary plan description and other written communications (or a description of any oral communications) by the Company or its Subsidiaries to their employees concerning the extent of the benefits provided under a Company Plan, description; and (iv) for the two most recent years (A) the Form 5500 and attached schedules, (B) audited financial statements, statements and (C) actuarial valuation reports and (D) attorney’s response to an auditor’s request for informationreports, as applicable.
(bi) Each Company Benefit Plan has been established and administered in all material respects in accordance with its terms, and in material compliance with the applicable provisions of ERISA, the Code and other Applicable Laws; (ii) each Company Benefit Plan that is intended to be qualified within the meaning of Section 401(a) of the Code has received a favorable determination letter as to its qualification, and nothing has occurred, whether by action or failure to act, that could reasonably be expected to cause the loss of such qualification; and (iii) neither the Company nor any of its Subsidiaries (other than any portfolio company wholly owned by the Funds) has incurred any current or projected liability in respect of post-employment or post-retirement health, medical or life insurance benefits for current, former or retired employees of Company or any of its Subsidiaries, except 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 Law.
(d) No Company Benefit Plan is subject to the funding requirements of Title IV of ERISA or Section 412 of the Code, no Company Plan is a “multiemployer plan plan” (within the meaning of as defined in Section 3(374001(a)(3) of ERISA), ) and neither the Company nor any member of its Controlled Group (defined as has at any organization which is a member of a controlled group of organizations within the meaning of Code Sections 414(b)time sponsored or contributed to, (c), (m) or (o)) has or had any liability (direct or contingent) with obligation in respect to, and has never incurred any liability (director or contingent) with respect toof, any employee benefit plan subject to Title IV of ERISA. No Company Plan provides health or other welfare benefits to former employees of the Company or its Subsidiaries other than health continuation coverage pursuant to COBRAmultiemployer plan.
(ce) With respect to the No Company Plans, except to the extent that the inaccuracy of any of the representations set forth in this paragraph (c), individually or in the aggregate, has not been and would not reasonably be expected to be material to the Company and its Subsidiaries, taken as a whole:
(i) each Company Benefit Plan has been established and administered in accordance with its terms and in compliance with the applicable provisions of applicable Law, including ERISA and the Code, and all contributions required to be made under the terms of any Company Plan have been timely made;
(ii) each Company Plan intended to be qualified under Section 401(a) of the Code has received a favorable determination, advisory or opinion letter, as applicable, from the IRS that it is so qualified and nothing has occurred that would reasonably be expected to cause the loss of such qualified status of such Company Plan;
(iii) there is no Action (including any investigation, audit or other administrative proceeding) 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 the Company, threatened, relating to the Company Plans, any fiduciaries thereof with respect to their duties to the Company Plans or the assets of any of the trusts under any of the 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;
(iv) neither the Company nor its Subsidiaries nor any of their Affiliates has incurred any direct or indirect liability under ERISA or the Code in connection with the termination of, withdrawal from or failure to fund, any Company Plan or other retirement plan or arrangement, and no fact or event exists that would reasonably be expected to give rise to any such liability; and
(v) the Company and its Subsidiaries do not maintain any Company Plan that is a “group health plan” (as such term is defined in Section 5000(b)(1) of the Code) that has not been administered and operated in all respects in compliance with the applicable requirements of Section 601 of ERISA and Section 4980B(b) of the Code, and the Company and its Subsidiaries are not subject to any liability, including additional contributions, fines, penalties or loss of Tax deductionsthat, as a result of such administration and operation; and
(d) None of the Company Plans provides for payment of a benefit, the increase of a benefit amount, the payment of a contingent benefit, the acceleration of a payment or the vesting of a benefit determined or occasioned, in whole or in part, by reason of the execution of this Agreement or 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). None material obligation pursuant to, any of the Company Plans Benefit Plans, (iii) cause the Company or any of its Subsidiaries to record additional compensation expense on its income statement with respect to any outstanding stock option or other plan agreement equity-based award, or arrangement (v) result in effect immediately prior to payments under any of the Closing could result separately or in the aggregate in connection with the transactions contemplated by this Agreement (either alone or in conjunction with any other event) in the payment of any “excess parachute payment” within the meaning of Company Benefit Plans which would not be deductible under Section 280G of the Code.
(ef) Each None of the Company Plan that is Accounts has to date constituted a “nonqualified deferred compensation planplan assets fund” within the meaning of Section 409A(d)(1) of the Code has complied in form and operation with the requirements of Section 409A of the Code. No current or former employee, director or other service provider is entitled subject to any gross-up, make-whole or other additional payment from the Company or any of its Subsidiaries in respect of any Tax (including Federal, state, local or foreign income, excise or other Taxes (including Taxes imposed under Section 409A and 4999 of the Code)) or interest or penalty related theretoERISA.
Appears in 1 contract
Benefit Plans. (a) Section 3.11(a4.12(a) of the Company Disclosure Letter sets forth contains a true and complete list, as of the date hereof, list of each “employee benefit plan” (within the meaning of section Section 3(3) of the Employee Retirement Income Security Act of 1974 1974, as amended (“ERISA”), whether or not subject to ERISA), “multiemployer plan” (within the meaning of ERISA section Section 3(37)) ), and all stock purchase, stock option, phantom stock or other equity-based plan, severance, employment, collective bargaining, change-in-control, fringe benefit, bonus, incentive, deferred compensation compensation, supplemental retirement, health, life, or disability insurance, dependent care 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 or required in the future as a result of the transactions contemplated by this Agreement or otherwise), whether formal or informal, written or oral, legally binding or not, under which any current or former employee, director or consultant of the Company or its Subsidiaries (or any of their dependents) has any present or future right to compensation or benefits or the Company or any of its Subsidiaries has had Subsidiaries, sponsors or maintains, is making contributions to or has any present or future liability or obligation (contingent or otherwise) or with respect to which it is otherwise bound (collectivelybound. All such plans, agreements, programs, policies and arrangements shall be collectively referred to as the “Company Plans”).” The Company has provided or made available to Parent a current, accurate and complete copy of each Company Plan, or if such Company Plan is not in written form, a written summary of all of the material terms of such Company Plan. With respect to each Company Plan, the Company has furnished or made available to Parent a true current, accurate and complete copy thereof andof, to the extent applicable: (i) any related trust agreement or other funding instrument, (ii) the most recent determination letter of the Internal Revenue Service (the “IRS”), if applicable, (iii) any summary plan description description, summary of material modifications, and other similar material written communications (or a written description of any material oral communications) by to the employees of the Company or its Subsidiaries to their employees concerning the extent of the benefits provided under a Company Plan, and (iv) for the two three most recent years and as applicable (A) the Form 5500 and attached schedules, (B) audited financial statements, statements and (C) actuarial valuation reports and (D) attorney’s response to an auditor’s request for informationreports.
(b) No Company Plan is subject to Title IV of ERISA Neither the Company, its Subsidiaries, or Section 412 of the Code, no Company Plan is a multiemployer plan (within the meaning of Section 3(37) of ERISA), and neither the Company nor any member of its their Controlled Group (defined as any organization which is a member of a controlled controlled, affiliated or otherwise related group of organizations entities within the meaning of Code Sections Section 414(b), (c), (m) or (o)) has ever sponsored, maintained, contributed to or been required to contribute to or incurred any liability (direct contingent or contingentotherwise) with respect to: (i) a “multiemployer plan” (within the meaning of ERISA Section 3(37)), and has never incurred any liability (director or contingentii) with respect to, any an “employee pension benefit plan plan,” within the meaning of Section 3(2) of ERISA (“Pension Plan”) that is subject to Title IV of ERISA. No Company Plan provides health ERISA or other welfare benefits to former employees Section 412 of the Company Code, (iii) a Pension Plan which is a “multiple employer plan” as defined in Section 413 of the Code, or its Subsidiaries other than health continuation coverage pursuant to COBRA(iv) a “funded welfare plan” within the meaning of Section 419 of the Code.
(c) With respect to the Company Plans, except to the extent that the inaccuracy of any of the representations set forth in this paragraph (c), individually or in the aggregate, has not been and would not reasonably be expected to be material to the Company and its Subsidiaries, taken as a whole:
(i) each Company Plan has been established and administered complies in accordance all material respects with its terms and materially complies in compliance form and in operation with the applicable provisions of applicable Law, including ERISA and the Code, Code and all contributions required to be made under the terms of any Company Plan have been timely madeother applicable legal requirements;
(ii) each Company Plan intended to be qualified under Section 401(a) of the Code has received a favorable determination, advisory or and/or opinion letter, as applicable, from the IRS that it the form of such plan is so qualified and nothing has occurred to the knowledge of the Company since the date of such letter that would reasonably be expected to cause the loss of the sponsor’s ability to rely upon such letter, and nothing has occurred to the knowledge of the Company that would reasonably be expected to result in the loss of the qualified status of such Company Plan;
(iii) there is no material Action (including any investigation, audit or other administrative proceeding) by the Department of Labor, the Pension Benefit Guaranty CorporationCorporation (the “PBGC”), the IRS or any other Governmental Entity or by any plan participant or beneficiary pending, or to the Knowledge knowledge of the Company, threatened, relating to the Company Plans, any fiduciaries thereof with respect to their duties to the Company Plans or the assets of any of the trusts under any of the 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);
(iv) neither none of the Company nor its Subsidiaries nor Plans currently provides, or reflects or represents any of their Affiliates has incurred any direct liability to provide post-termination or indirect liability under ERISA or the Code in connection with the termination of, withdrawal from or failure to fund, any Company Plan or other retirement plan or arrangement, and no fact or event exists that would reasonably be expected to give rise retiree welfare benefits to any such liability; and
(v) the Company and its Subsidiaries do not maintain person for any Company Plan that is a “group health plan” (reason, except as such term is defined in Section 5000(b)(1) of the Code) that has not been administered and operated in all respects in compliance with the applicable requirements of may be required by Section 601 et seq. of ERISA and Section 4980B(b) of the CodeCode or other applicable similar law regarding health care coverage continuation (collectively, “COBRA”), and none of the Company, its Subsidiaries, or any members of their Controlled Group has any liability to provide post-termination or retiree welfare benefits to any person or ever represented, promised or contracted to any employee or former employee of the Company and its Subsidiaries are not subject (either individually or to any liability, including additional contributions, fines, penalties or loss of Tax deductions, Company employees as a result of group) or any other person that such administration and operationemployee(s) or other person would be provided with post-termination or retiree welfare benefits, except to the extent required by statute or except with respect to a contractual obligation to reimburse any premiums such person may pay in order to obtain health coverage under COBRA;
(v) each Company Plan is subject exclusively to United States Law; and
(dvi) None of the Company Plans provides for payment of a benefit, the increase of a benefit amount, the payment of a contingent benefit, the acceleration of a payment or the vesting of a benefit determined or occasioned, in whole or in part, by reason of the execution and delivery of this Agreement or and the consummation of the transactions contemplated hereby (Merger will not, either alone or in conjunction combination with any other event). None , (A) entitle any current or former employee, officer, director or consultant of the Company Plans or any Subsidiary to severance pay, unemployment compensation or any other similar termination payment, or (B) accelerate the time of payment or vesting, or increase the amount of or otherwise enhance any benefit due to any such employee, officer, director or consultant.
(d) Neither Company nor any Subsidiary is a party to any agreement, contract, arrangement or plan agreement or arrangement in effect immediately prior (including any Company Plan) that may reasonably be expected to the Closing could result result, separately or in the aggregate aggregate, in connection with the transactions contemplated by this Agreement (either alone or in conjunction combination with any other event) events), in the payment of any “excess parachute paymentpayments” within the meaning of Section 280G of the Code (without regard to Section 280G(b)(4) and 280G(b)(5) of the Code. There is no agreement, plan or other arrangement to which the Company or any Subsidiary is a party or by which any of them is otherwise bound to gross-up or indemnify any person in respect of Taxes or other liabilities incurred with respect to Section 409A or 4999 of the Code.
(e) Each Company Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A(d)(1) 409A of the Code has complied (or any comparable or similar provision of state, local, or foreign Law) complies in both form and operation in all material respects with the requirements of Section 409A of the Code. No current Code (or former employeeany comparable or similar provision of state, director local, or other service provider is entitled foreign Law) and all applicable IRS guidance issued with respect thereto (and has so complied for the entire period during which Section 409A of the Code has applied to such Company Plan) so that no amount paid or payable pursuant to any gross-up, make-whole such Company Plan is subject to any additional Tax or other additional payment from the Company or any of its Subsidiaries in respect of any Tax (including Federal, state, local or foreign income, excise or other Taxes (including Taxes imposed interest under Section 409A and 4999 of the CodeCode (or any comparable or similar provision of state, local, or foreign Law)) or interest or penalty related thereto.
Appears in 1 contract
Benefit Plans. (a) Section 3.11(a3.13(a) of the Company Disclosure Letter sets forth contains a true and complete list, as of the date hereof, list of each “"employee benefit plan” " (within the meaning of section Section 3(3) of the Employee Retirement Income Security Act of 1974 1974, as amended (“"ERISA”")), “"multiemployer plan” plans" (within the meaning of ERISA section Section 3(37)) ), and all stock purchase, stock option, phantom stock or other equity-based plan, severance, employment, collective bargaining, change-in-control, fringe benefit, bonus, incentive, deferred compensation compensation, employee loan 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 or required in the future as a result of the transactions contemplated by this Agreement or otherwise), whether formal or informal, written or oralwritten, legally binding or not, under which any current employee or former employee, director or consultant employee of the Company or its Subsidiaries (or any of their dependents) has any present or future right to compensation or benefits or the Company or its Subsidiaries has had or has any present or future liability or with respect liability. All such plans, agreements, programs, policies and arrangements shall be collectively referred to which it is otherwise bound (collectively, as the “"Company Plans”). ." With respect to each Company Plan, the Company has furnished or made available to Parent a true current, accurate and complete copy thereof thereof, including any amendments, and, to the extent applicable: (i) any related trust agreement or other funding instrument, (ii) the most recent determination letter of the Internal Revenue Service (the “"IRS”"), if applicable, (iii) any summary plan description and other written communications (or a description of any oral communications) by the Company or its Subsidiaries to their employees concerning the extent of the benefits provided under a Company Plan, Plan and (iv) for the two most recent years (A) the Form 5500 and attached schedules, (B) audited financial statements, (C) actuarial valuation reports and (D) attorney’s 's response to an auditor’s 's request for information.
(b) No Company Plan is subject to Title IV of ERISA or Section 412 of the Code, no Company Plan is a multiemployer plan (within the meaning of Section 3(37) of ERISA), and neither the Company nor any member of its Controlled Group (defined as any organization which is a member of a controlled group of organizations within the meaning of Code Sections 414(b), (c), (m) or (o)) has any liability (direct or contingent) with respect to, and has never incurred any liability (director or contingent) with respect to, any employee benefit plan subject to Title IV of ERISA. No Company Plan provides health or other welfare benefits to former employees of the Company or its Subsidiaries other than health continuation coverage pursuant to COBRA.
(c) With respect to the Company Plans, except to the extent that the inaccuracy of any of the representations set forth in this paragraph (c), individually or in the aggregate, has not been and would not reasonably be expected to be material to the Company and its Subsidiaries, taken as a whole:
(i1) each Company Plan has been established and administered in all material respects in accordance with its terms and in compliance in all material respects with the applicable provisions of ERISA, the Code and all other applicable LawLaws, including and no reportable event, as defined in Section 4043 of ERISA, no prohibited transaction, as described in Section 406 of ERISA or Section 4975 of the Code, or failure to satisfy the minimum funding standards, within the meaning of Section 302 of ERISA and 412 of the Code, has occurred with respect to any Company Plan, and all contributions required to be made under the terms of any Company Plan have been timely made;
(ii2) each Company Plan intended to be qualified under Section 401(a) of the Code (A) has received a favorable determination, advisory or and/or opinion letter, as applicable, from the IRS that it is so qualified qualified, (B) the trust maintained thereunder has been determined to be exempt from taxation under Section 501(a) of the Code and (C) to the Company's knowledge, nothing has occurred since the date of such letter that would could reasonably be expected to cause the loss of such qualified status of such Company Plan;
(iii3) there is no Action (including any investigation, audit or other administrative proceeding) 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 knowledge of the Company, threatened, relating to the Company Plans, any fiduciaries thereof with respect to their duties to the Company Plans or the assets of any of the trusts under any of the Company Plans (other than routine claims for benefits) nor are there facts or circumstances that exist and are known to the Company that could reasonably be expect to give rise to any such Actions;
(iv4) neither no Company Plan is or, within the Company nor its Subsidiaries nor any preceding seven years, has been subject to Title IV of their Affiliates has incurred any direct or indirect liability under ERISA or subject to Section 412 of the Code in connection and no Person that is a member of a "controlled group of corporations" with, or is under "common control" with, or is a member of the same "affiliated service group" with the termination ofCompany, withdrawal from in each case, as defined in Sections 414(b), (c), (m) or failure to fund(o) of the Code, any maintains, contributes to, or sponsors (or has in the past seven years maintained, contributed to, or sponsored) a multiemployer plan as defined in Section 3(37) of ERISA or a Title IV Plan;
(5) no Company Plan is or other retirement plan or arrangement, and no fact or event exists that would reasonably be expected to give rise to any such liability; andhas been a "multiemployer plan" (within the meaning of ERISA Section 3(37));
(v6) the Company and its Subsidiaries do not maintain any Company Plan that is a “"group health plan” " (as such term is defined in Section 5000(b)(1) of the Code) that has not been administered and operated in all material respects in compliance with the applicable requirements of Section 601 of ERISA and Section 4980B(b4980B(f) of the Code, and the Company and its Subsidiaries are not subject to any material liability, including additional contributions, fines, penalties or loss of Tax deductions, deduction as a result of such administration and operation; and. No Company Plan provides welfare benefits, including death or medical benefits (whether or not insured) beyond retirement or termination of service, other than as set forth in Section 3.13(a) of the Company Disclosure Letter and coverage mandated solely by applicable Law;
(d7) None none of the Company Plans provides for payment of an amount or provision of a benefit, the increase of a benefit amountpayment or benefit, the payment of a contingent amount or provision of a contingent benefit, or the acceleration of a payment the payment, funding or the vesting of a an amount or benefit determined or occasioned, in whole or in part, by reason of the execution of this Agreement or the consummation of the transactions contemplated hereby (either whether alone or in conjunction together with any other event). None of ; and
(8) no amounts payable under the Company Plans or any other plan agreement or arrangement in effect immediately prior will fail to the Closing could result separately or in the aggregate in connection with the transactions contemplated be deductible for federal income tax purposes by this Agreement (either alone or in conjunction with any other event) in the payment of any “excess parachute payment” within the meaning virtue of Section 280G of the CodeCode as a result of the occurrence of the transactions contemplated by this Agreement, either alone or in combination with another event.
(ec) Each Company Plan that is a “nonqualified deferred compensation plan” within the meaning of subject to Section 409A(d)(1) 409A of the Code has complied been administered and documented in form and operation compliance with the requirements of Section 409A of the Code.
(d) Neither the Company nor any Subsidiary has a contract, plan or commitment to create any additional Company Plan, or any plan, agreement or arrangement that would be a Company Plan if adopted, or to modify any existing Company Plan, except as required by applicable Law. No current Except as required by applicable Law, there are no limitations or former employee, director or other service provider is entitled to any gross-up, make-whole or other additional payment from restrictions on the right of the Company or any of its Subsidiaries in respect of any Tax (including FederalSubsidiary or, state, local or foreign income, excise or other Taxes (including Taxes imposed under Section 409A and 4999 after the consummation of the Code)transactions contemplated hereby, Parent, to merge, amend or terminate any Company Plan.
(e) The Company is in material compliance with any compensation-related requirements, limitations or interest restrictions imposed by Section 111 of the Emergency Economic Stabilization Act of 2008, as amended, or penalty related the Interim Final Rule promulgated pursuant thereto.
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Benefit Plans. (aExcept as set forth on Schedule 3.15: Schedule 1.1(a) Section 3.11(a) of the Company Disclosure Letter sets forth a true and complete list, as of the date hereof, of lists each “employee benefit plan” (within the meaning of section 3(3) of the Employee Retirement Income Security Act of 1974 (“ERISA”)), “multiemployer plan” (within the meaning of ERISA section 3(37)) and all stock purchase, stock option, phantom stock or other equity-based plan, severance, employment, collective bargaining, 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 or required in the future as a result of the transactions contemplated by this Agreement or otherwise), whether formal or informal, written or oral, legally binding or not, under which any current or former employee, director or consultant of the Company or its Subsidiaries (or any of their dependents) has any present or future right to compensation or benefits or the Company or its Subsidiaries has had or has any present or future liability or with respect to which it is otherwise bound (collectively, the “Company Plans”). With respect to each Company Plan, the Company has made available to Parent a true and complete copy thereof Company's and, to the extent applicable: (i) any related trust agreement or other funding instrumentKnowledge of Seller, (ii) the most recent determination letter STMV's, Benefit Plans that are currently in effect as of the Internal Revenue Service (Execution Date. To Seller's Knowledge, each Benefit Plan that is intended to be qualified under section 401(a) of the “IRS”), if applicable, (iii) any summary plan description Code is so qualified and other written communications (or a description of any oral communications) has been determined by the Company or its Subsidiaries IRS to their employees concerning the extent of the benefits provided under a Company Planbe so qualified, and nothing has occurred since the date of such determination that could reasonably be expected to give the IRS grounds to revoke such determination. To Seller's Knowledge, each Benefit Plan of each Company and STMV has been maintained in material compliance with its terms and applicable Laws. No Benefit Plan of either Company or, to the Knowledge of Seller, of STMV, is, or within the past six (iv6) for the two most recent years (A) the Form 5500 and attached scheduleshas been, (B) audited financial statements, (C) actuarial valuation reports and (D) attorney’s response to an auditor’s request for information.
(b) No Company Plan is subject to Title IV of ERISA or Section subject to section 412 of the CodeCode or section 302 of ERISA. Neither Company nor, no Company Plan is a multiemployer plan to the Knowledge of Seller, STMV or any other "disqualified person" or "party in interest" (within as defined in section 4975(e)(2) of the meaning of Section 3(37Code and section 3(14) of ERISA, respectively), and neither has engaged in any transaction in connection with any Benefit Plan of either Company or STMV that could reasonably be expected to result in the Company nor any member of its Controlled Group (defined as any organization which is a member imposition of a controlled group material penalty pursuant to section 502 of organizations within ERISA or a material excise tax pursuant to section 4975 of the meaning of Code Sections 414(b), (c), (m) or (o)) has any liability (direct or contingent) with respect to, and has never incurred any liability (director or contingent) with respect to, any employee benefit plan subject to Title IV of ERISACode. No Company Benefit Plan provides health or other welfare benefits to former employees of the Company or its Subsidiaries other than health continuation coverage pursuant to COBRA.
(c) With respect either Company, or, to the Company PlansKnowledge of Seller, of STMV, provides for material post-employment or retiree welfare benefits, except to the extent that the inaccuracy required by Part 6 of any Title I of ERISA or section 4980B of the representations set forth in this paragraph (c)Code. No material liability, individually claim, action or in the aggregate, has not been and would not reasonably be expected to be material to the Company and its Subsidiaries, taken as a whole:
(i) each Company Plan litigation has been established and administered in accordance with its terms and in compliance with the applicable provisions of applicable Lawmade, including ERISA and the Codecommenced or, and all contributions required to be made under the terms of any Company Plan have been timely made;
(ii) each Company Plan intended to be qualified under Section 401(a) of the Code has received a favorable determination, advisory or opinion letter, as applicable, from the IRS that it is so qualified and nothing has occurred that would reasonably be expected to cause the loss of such qualified status of such Company Plan;
(iii) there is no Action (including any investigation, audit or other administrative proceeding) 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 the CompanySeller, threatened, relating to the Company Plans, any fiduciaries thereof threatened with respect to their duties to the any Benefit Plan of either Company Plans or the assets of any of the trusts under any of the Company Plans (other than routine claims for benefits) nor are there facts benefits payable in the Ordinary Course of Business and appeals of denied claims). To the Knowledge of Seller, no material liability, claim, action or circumstances that exist that could reasonably give rise litigation has been made, commenced or threatened with respect to any such Actions;
Benefit Plan of STMV (iv) neither the Company nor its Subsidiaries nor any of their Affiliates has incurred any direct or indirect liability under ERISA or the Code in connection with the termination of, withdrawal from or failure to fund, any Company Plan or other retirement plan or arrangement, and no fact or event exists that would reasonably be expected to give rise to any such liability; and
(v) the Company and its Subsidiaries do not maintain any Company Plan that is a “group health plan” (as such term is defined in Section 5000(b)(1) of the Code) that has not been administered and operated in all respects in compliance with the applicable requirements of Section 601 of ERISA and Section 4980B(b) of the Code, and the Company and its Subsidiaries are not subject to any liability, including additional contributions, fines, penalties or loss of Tax deductions, as a result of such administration and operation; and
(d) None of the Company Plans provides than routine claims for payment of a benefit, the increase of a benefit amount, the payment of a contingent benefit, the acceleration of a payment or the 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 hereby (either alone or in conjunction with any other event). None of the Company Plans or any other plan agreement or arrangement in effect immediately prior to the Closing could result separately or benefits payable in the aggregate in connection with the transactions contemplated by this Agreement (either alone or in conjunction with any other event) in the payment Ordinary Course of any “excess parachute payment” within the meaning Business and appeals of Section 280G of the Codedenied claims).
(e) Each Company Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A(d)(1) of the Code has complied in form and operation with the requirements of Section 409A of the Code. No current or former employee, director or other service provider is entitled to any gross-up, make-whole or other additional payment from the Company or any of its Subsidiaries in respect of any Tax (including Federal, state, local or foreign income, excise or other Taxes (including Taxes imposed under Section 409A and 4999 of the Code)) or interest or penalty related thereto.
Appears in 1 contract
Samples: Securities Purchase Agreement (Uranium Energy Corp)
Benefit Plans. (a) Section 3.11(a) of the Company Disclosure Letter Schedule 3.17 sets forth a true complete and complete list, as accurate list of the date hereof, of each “employee benefit plan” (within the meaning of section 3(3) of the Employee Retirement Income Security Act of 1974 (“ERISA”)), “multiemployer plan” (within the meaning of ERISA section 3(37)) and all stock purchase, stock option, phantom stock or other equity-based plan, severance, employment, collective bargaining, 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 Benefit Plans in effect or required in the future as a result of the transactions contemplated by this Agreement or otherwise), whether formal or informal, written or oral, legally binding or not, under which any current or former employeeEmployee participates. There is no Proceeding in progress, director or consultant pending or, to the Knowledge of Seller, threatened by the Company or its Subsidiaries (or any IRS, the Department of their dependents) has any present or future right to compensation or benefits Labor or the Company or its Subsidiaries has had or has any present or future liability or Pension Benefit Guaranty Corporation with respect to which it is otherwise bound any Benefit Plan (collectively, the “Company Plans”other than routine claims for benefits). With All Benefit Plans have been administered in material compliance with their terms and are in compliance in form and operation in all material respects with the requirements prescribed by applicable Law, and Seller and each Related Entity has performed all material obligations required to be performed by it under, and is not in any material respect to each Company in default under or in violation of, any Benefit Plan. Neither Seller nor any Related Entity has received any written notice that any Benefit Plan is not in compliance with the terms of such Benefit Plan, the Company has made available to Parent a true and complete copy thereof any collective bargaining agreement or other Contract, ERISA, any other applicable Law or otherwise and, to the extent applicable: (i) any related trust agreement or other funding instrumentKnowledge of Seller, (ii) the most recent determination letter of the Internal Revenue Service (the “IRS”), if applicable, (iii) any summary plan description and other written communications (or a description of any oral communications) by the Company or its Subsidiaries to their employees concerning the extent of the benefits provided under a Company Plan, and (iv) for the two most recent years (A) the Form 5500 and attached schedules, (B) audited financial statements, (C) actuarial valuation reports and (D) attorney’s response to an auditor’s request for informationthere is no such non-compliance.
(b) No Company Plan is subject to Title IV of ERISA or Section 412 of the Code, no Company Plan is a multiemployer plan (within the meaning of Section 3(37) of ERISA), and neither the Company nor any member of its Controlled Group (defined as any organization which is a member of a controlled group of organizations within the meaning of Code Sections 414(b), (c), (m) or (o)) has any liability (direct or contingent) with respect to, and has never incurred any liability (director or contingent) with respect to, any employee benefit plan subject to Title IV of ERISA. No Company Plan provides health or other welfare benefits to former employees of the Company or its Subsidiaries other than health continuation coverage pursuant to COBRA.
(c) With respect to the Company Plans, except to the extent that the inaccuracy of any of the representations set forth in this paragraph (c), individually or in the aggregate, has not been and would not reasonably be expected to be material to the Company and its Subsidiaries, taken as a whole:
(i) each Company Plan has been established and administered in accordance with its terms and in compliance with the applicable provisions of applicable Law, including ERISA and the Code, and all contributions required to be made under the terms of any Company Plan have been timely made;
(ii) each Company Each Benefit Plan intended to be qualified under Section section 401(a) of the Code has received a favorable determinationdetermination letter which covers all amendments to the plan, advisory or opinion letter, as applicable, from the IRS that it is so qualified and nothing has occurred that would reasonably be expected to cause since the loss of such qualified status of such Company Plan;
(iii) there is no Action (including any investigation, audit or other administrative proceeding) 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 date of the Company, threatened, relating to the Company Plans, any fiduciaries thereof with respect to their duties to the Company Plans or the assets of any of the trusts under any of the Company Plans (other than routine claims for benefits) nor are there facts or circumstances that exist most recent determination that could reasonably give rise to cause any such Actions;
(iv) neither the Company nor its Subsidiaries nor any of their Affiliates has incurred any direct or indirect liability under ERISA or the Code in connection with the termination of, withdrawal from or failure to fund, any Company Benefit Plan or other retirement plan trust to fail to qualify under section 401(a) or arrangement, and no fact or event exists that would reasonably be expected to give rise to any such liability; and
(v) the Company and its Subsidiaries do not maintain any Company Plan that is a “group health plan” (as such term is defined in Section 5000(b)(1501(a) of the Code.
(c) that has Except as provided in Schedule 3.17, the transactions contemplated by this Agreement shall not been administered and operated (i) result in all respects in compliance with the applicable requirements of Section 601 of ERISA and Section 4980B(bany additional payment (including any severance payment) of the Codeto, and the Company and its Subsidiaries are not subject to or any liabilitybenefit accrual under, including additional contributionsor (ii) increase any vested interest in, fines, penalties a Benefit Plan or loss of Tax deductions, as a result otherwise for any Employee or any dependent of such administration and operation; andEmployee.
(d) None of the Company Plans provides for payment of a benefit, the increase of a benefit amount, the payment of a contingent benefit, the acceleration of Assumed Liabilities is an obligation to make a payment or the 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 hereby (either alone or in conjunction with any other event). None of the Company Plans or any other plan agreement or arrangement in effect immediately prior that will not be deductible according to the Closing could result separately or in the aggregate in connection with the transactions contemplated by this Agreement (either alone or in conjunction with any other event) in the payment of any “excess parachute payment” within the meaning of Section section 280G of the Code.
(e) Each Company Plan Schedule 3.17 sets forth a true, correct and complete list of all agreements and plans (written or oral) providing for “deferral of compensation” as defined under Section 409A of the Code (and any regulations or other guidance issued by the IRS with respect to Section 409A of the Code) to an Employee or any Person providing services to Seller or any Related Entity (or would provide for “deferral of compensation” except that the agreement or plan is a “nonqualified deferred compensation plangrandfathered” within plan or arrangement under Section 409A, or a plan or arrangement exempt from Section 409A under the meaning of “short-term deferral rule” or the “involuntary separation from service rule”). Except as indicated on Schedule 3.17 (i) all agreements and plans have been maintained in good faith compliance with Section 409A(d)(1) 409A of the Code has complied in form (and operation applicable regulations or other applicable guidance issued by the IRS with respect to Section 409A of the requirements of Code) or (ii) are grandfathered from, and not subject to, Section 409A of the Code. No current or former employeePrior to December 31, director or other service provider is entitled to any gross-up2008 (1) Seller has amended its deferred compensation Benefit Plan so that it complies, make-whole or other additional payment from in form, with the Company or any requirements of its Subsidiaries in respect of any Tax (including Federal, state, local or foreign income, excise or other Taxes (including Taxes imposed under Section section 409A and 4999 of the Code), (2) or interest or penalty related theretoSeller has caused CCSI to amend its deferred compensation Benefit Plan to comply, in form, with the requirements of section 409A of the Code, and (3) Seller and each Related Entity, to the extent Seller Controls a Related Entity, has amended all employment agreements to comply, in form, with the requirements of section 409A of the Code.
Appears in 1 contract
Samples: Asset Purchase Agreement (Insituform Technologies Inc)
Benefit Plans. (a) Section 3.11(a) Schedule 4.28 of the Company Disclosure Letter Schedules sets forth a true complete list of the Benefit Plans.
(b) Current and complete listcopies of all written Benefit Plans or, as where oral, written summaries of the date hereofmaterial terms of them, have been provided or made available to the Purchaser together with current and complete copies of each “employee benefit plan” all documents relating to the Benefit Plans, including: all documents establishing, creating or amending any of the Benefit Plans; all trust agreements, funding agreements; insurance contracts, and the most recent financial statements and accounting statements and reports; all booklets, summaries, manuals and written communications of a general nature distributed or made available to any Employees or former employees concerning any Benefit Plans.
(within c) Each Pension Plan has been qualified and administered in compliance with (i) the meaning of section 3(3terms thereof, and (ii) of the Code and the Employee Retirement Income Security Act of 1974 1974, as amended (“"ERISA”")); and the Corporation has not received, “multiemployer plan” (within the meaning of ERISA section 3(37)) and all stock purchase, stock option, phantom stock or other equity-based plan, severance, employment, collective bargaining, 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 or required in the future as a result last six years, any notice from any Person questioning or challenging such compliance (other than in respect of any claim related solely to that Person).
(d) All obligations to or under the Pension Plans (whether pursuant to their terms or the Code or ERISA) have been satisfied, and there are no outstanding defaults or violations under the Pension Plans by the Corporation nor do the Corporation Stockholders or the Corporation have any actual knowledge, without further enquiry or investigation, of any default or violation by any other party to any Pension Plan.
(e) Other than those required by the Code or ERISA, there have been no improvements, increases or changes to, or promised improvements, increases or changes to, the benefits provided under any Pension Plan. None of the Pension Plans provides for benefit increases or the acceleration of or an increase in funding obligations that are contingent upon or will be triggered by the entering into of this Agreement or the completion of the transactions contemplated by this Agreement or otherwise)Agreement, whether formal or informal, written or oral, legally binding or not, under which any current or former employee, director or consultant other than the full vested of the Company or its Subsidiaries (or any of their dependents) has any present or future right to compensation or accrued benefits or the Company or its Subsidiaries has had or has any present or future liability or with respect to which it is otherwise bound (collectively, the “Company Plans”). With respect to each Company Plan, the Company has made available to Parent a true and complete copy thereof and, to the extent applicable: (i) any related trust agreement or other funding instrument, (ii) the most recent determination letter of the Internal Revenue Service (the “IRS”), if applicable, (iii) any summary plan description and other written communications (or a description of any oral communications) required by the Company or its Subsidiaries to their employees concerning Code upon the extent of the benefits provided under a Company Plan, and (iv) for the two most recent years (A) the Form 5500 and attached schedules, (B) audited financial statements, (C) actuarial valuation reports and (D) attorney’s response to an auditor’s request for information.
(b) No Company Plan is subject to Title IV of ERISA or Section 412 of the Code, no Company Plan is a multiemployer plan (within the meaning of Section 3(37) of ERISA), and neither the Company nor any member of its Controlled Group (defined as any organization which is a member termination of a controlled group of organizations within the meaning of Code Sections 414(b), (c), (m) or (o)) has any liability (direct or contingent) with respect to, and has never incurred any liability (director or contingent) with respect to, any employee benefit plan subject to Title IV of ERISA. No Company Pension Plan provides health or other welfare benefits to former employees of the Company or its Subsidiaries other than health continuation coverage pursuant to COBRA.
(c) With respect to the Company Plans, except to the extent that the inaccuracy of any of the representations set forth in this paragraph (c), individually or in the aggregate, has not been and would not reasonably be expected to be material to the Company and its Subsidiaries, taken as a whole:
(i) each Company Plan has been established and administered in accordance with its terms and in compliance with the applicable provisions of applicable Law, including ERISA and the Code, and all contributions required to be made under the terms of any Company Plan have been timely made;
(ii) each Company Plan intended to be qualified under Section 401(a) of the Code has received a favorable determination, advisory or opinion letter, as applicable, from the IRS that it is so qualified and nothing has occurred that would reasonably be expected to cause the loss of such qualified status of such Company Plan;Code.
(iiif) All employer or employee payments, contributions or premiums required to be remitted, paid to or in respect of each Pension Plan have been paid or remitted in a timely fashion in accordance with the terms of that Pension Plan and the Code and ERISA, and no Taxes, penalties or fees are owing or exigible under any Pension Plan, and to the knowledge of the Corporation there are no liabilities or contingent liabilities in respect of any Pension Plans that have been discontinued.
(g) There is no Action (including any proceeding, action, investigation, audit suit or other administrative proceeding) 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 the Company, threatened, relating to the Company Plans, any fiduciaries thereof with respect to their duties to the Company Plans or the assets of any of the trusts under any of the Company Plans claim (other than routine claims for payment of benefits) nor are there facts or circumstances that exist that could reasonably give rise pending or, to the knowledge of the Corporation, threatened involving any such Actions;
(iv) neither the Company nor its Subsidiaries nor any of their Affiliates has incurred any direct or indirect liability under ERISA or the Code in connection with the termination of, withdrawal from or failure to fund, any Company Pension Plan or other retirement plan or arrangementits assets, and to the knowledge of the Corporation no fact or event exists that would facts exist which could reasonably be expected to give rise to any such liability; andproceeding, action, suit or Claim (other than routine claims for benefits).
(vh) No event has occurred respecting any Pension Plan which could otherwise reasonably be expected to adversely affect the Company and its Subsidiaries do not maintain tax qualified status of any Company Plan that is a “group health such plan” .
(as such term is defined in Section 5000(b)(1i) of the Code) that The Corporation has not been administered and operated in all respects in compliance with the applicable requirements received, or applied for, any payment of Section 601 of ERISA and Section 4980B(b) of the Code, and the Company and its Subsidiaries are not subject to surplus or any liability, including additional contributions, fines, penalties or loss of Tax deductions, payments as a result of such administration and operation; andthe demutualization of the insurer of any Benefit Plan out of or in respect of any Benefit Plan.
(dj) The Corporation has not taken any contribution or premium holidays under any Benefit Plan and there have been no withdrawals or transfers of assets from any Benefit Plan.
(k) All employee data necessary to administer each Benefit Plan is in the possession of the Corporation and is substantially complete, correct and in a form which is sufficient for the proper administration of the Benefit Plan in accordance with its terms and all Laws.
(l) None of the Company Benefit Plans provides for payment provide benefits beyond retirement or other termination of a benefitservice to Employees or former employees, or to the increase beneficiaries of a benefit amountsuch employees, except as required by Laws, including but not limited to the payment Consolidated Omnibus Reconciliation Act of a contingent benefit, the acceleration of a payment or the 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 hereby 1985.
(either alone or in conjunction with any other event). m) None of the Company Benefit Plans require or permit a retroactive increase in premiums or payments, or require additional payments or premiums on the termination of any Benefit Plan or insurance contract in respect thereof other plan agreement or arrangement in effect immediately prior than the normal and reasonable administrative fees associated with the termination of benefit plans, and the level of insurance reserves, if any, under any insured Benefit Plan, to the Closing could result separately or in the aggregate in connection with the transactions contemplated by this Agreement (either alone or in conjunction with any other event) in the payment of any “excess parachute payment” within the meaning of Section 280G best of the CodeCorporation's knowledge, is reasonable and sufficient to provide for all incurred but unreported claims.
(e) Each Company Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A(d)(1) of the Code has complied in form and operation with the requirements of Section 409A of the Code. No current or former employee, director or other service provider is entitled to any gross-up, make-whole or other additional payment from the Company or any of its Subsidiaries in respect of any Tax (including Federal, state, local or foreign income, excise or other Taxes (including Taxes imposed under Section 409A and 4999 of the Code)) or interest or penalty related thereto.
Appears in 1 contract
Samples: Merger Agreement (Workstream Inc)
Benefit Plans. (ai) Section 3.11(aDisclosure Schedule 4.2(j)(i) of the Company Disclosure Letter sets forth a true and complete list, as list of the date hereof, of each all “employee benefit plan” (within the meaning of section plans”, as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974 (“ERISA”)), “multiemployer plan” (within the meaning of whether or not subject to ERISA section 3(37)) and all stock purchase, stock option, phantom stock or other equity-based plan, severance, employment, collective bargaining, change-in-control, educational assistance, adoption assistance, fringe benefit, collective bargaining, 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 or required in the future as a result of the transactions contemplated by this Agreement or otherwise)ERISA, whether formal or informal, written oral or oralwritten, legally binding or notnot (all the foregoing being herein called “Benefit Plans”), under which any current employee, director, independent contractor or former employee, director or consultant independent contractor of the Company or its Subsidiaries (Company, or any spouse or dependent of their dependents) any such employee or director, has any present or future right to compensation benefits, and which is (or benefits was prior to its termination) sponsored, maintained or the contributed to by Company or its Subsidiaries has had or under which Company has any present or future liability or with respect to which it is otherwise bound (collectively, the “Company Benefit Plans”). With respect to each Company Plan, the Company has provided or made available to Parent Bank a true true, correct and complete copy thereof of (A) such Company Benefit Plan and all related amendments thereto, (B) each trust agreement, summaries, employee booklets or handbooks, annuity contracts, insurance policies or any other funding instruments (“Funding Arrangements”) relating to such Company Benefit Plan and all related amendments thereto, (C) the most recent summary plan description 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, (D) the most recent annual report (Form 5500) filed with the IRS and, to where applicable, the extent applicable: related audited financial statements thereof, (iE) any related trust agreement or other funding instrumentcontracts with independent contractors (including actuaries, investment managers, etc.) that relate to any Company Benefit Plan, and (iiF) the most recent determination letter (or equivalent) issued by the IRS with respect to any Company Benefit Plan qualified under Section 401(a) of the Internal Revenue Service Code. There are no unwritten amendments to any Company Benefit Plan.
(ii) Each Company Benefit Plan that is represented to be qualified under Code Section 401(a) either has a favorable determination letter that covers all existing amendments up to and including EGTRRA or is an adoption of a prototype or volume submitter plan for which a favorable opinion letter has been issued up to and including EGTRRA, on which 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 “IRS”remedial amendment period under Code Section 401(b) has expired, and Company is not aware of any circumstances likely to result in revocation of any such favorable determination or inability to rely on any opinion letter except as disclosed on Disclosure Schedule 4.2(j)(ii). To the Knowledge of Company, each 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) of the Code and, except as disclosed on Disclosure Schedule 4.2(j)(ii), if applicableall reports, descriptions and filings required by the Code, ERISA or any government agency with respect to each Company Benefit Plan have been timely and completely filed or distributed.
(iii) any summary plan description and other written communications (or a description of any oral communications) by the Company or its Subsidiaries to their employees concerning the extent of the benefits provided under a Company Plan, and (iv) for the two most recent years (A) the Form 5500 and attached schedules, (B) audited financial statements, (C) actuarial valuation reports and (D) attorney’s response to an auditor’s request for information.
(b) No Company Benefit Plan is subject to Title IV of ERISA or Section 412 of the Code, no Company Plan is a multiemployer defined benefit plan (within the meaning of Section 3(373(35) of ERISAERISA 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 neither Company has not at any time during the Company nor last six (6) years, sponsored, maintained, contributed to or been obligated to contribute to any member of its Controlled Group (defined as any organization which is a member of a controlled group of organizations within the meaning of Code Sections 414(b), (c), (m) or (o)) has any liability (direct or contingent) with respect to, and has never incurred any liability (director or contingent) with respect to, any employee benefit plan subject to Title IV of ERISA. No Company Benefit Plan provides health is subject to the funding standards of Code Section 412 or other welfare benefits to former employees 436 of the Company Code or its Subsidiaries other than health continuation coverage pursuant to COBRASection 302 of ERISA.
(civ) All contributions (including, without limitations, all employer contributions, employee salary reduction contributions and all premiums or other payments (other than claims)) that are due and payable on or before the Closing Date have been timely paid to or made with respect to each Company Benefit Plan and, to the extent not presently payable, appropriate reserves have been established for the payment and properly accrued in accordance with customary accounting practices.
(v) All obligations required to be performed by Company under any Company Benefit Plan have been performed by them in all material respects and they are not in default under or in violation of any material provision of any Company Benefit Plan. There have been no prohibited transactions (described under Section 406 of ERISA or Section 4975(c) of the Code), breaches of fiduciary duty or any other breaches or violations of any law applicable to the Company Benefit Plans that would directly or indirectly subject Parent Bank or Company to any taxes, penalties or other liabilities, including any liability arising through indemnification.
(vi) Except as 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 407(d) of ERISA), other than the Company Plans.
(vii) With respect to the Company Plans, except Company has provided Parent or Parent Bank 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 extent payment of cash based on the value of Company Common Stock (A) has an exercise price that was less than the inaccuracy of any fair market value of the representations set forth underlying equity as of the date such stock option or right was granted, as determined by Company in this paragraph (c), individually or in the aggregate, has not been and would not reasonably be expected to be material to the Company and its Subsidiaries, taken as a whole:
(i) each Company Plan has been established and administered in accordance with its terms good faith and in compliance with the applicable provisions relevant IRS guidance in effect on the date of applicable Lawgrant (including, including ERISA IRS Notice 2005-1 and the Code, and all contributions required to be made under the terms of any Company Plan have been timely made;
(ii) each Company Plan intended to be qualified under Section 401(a1.409A-1(b)(5)(iv) of the Code Treasury regulations), (B) has received a favorable determination, advisory any feature for the deferral of compensation other than the deferral of recognition of income until the later of exercise or opinion letter, as applicable, from the IRS that it is so qualified and nothing has occurred that would reasonably be expected to cause the loss disposition of such qualified status option or right, or (C) has been granted after December 31, 2004, with respect to any class of such stock of Company Plan;that is not “service recipient stock” (within the meaning of applicable regulations under Section 409A).
(iiiviii) there is There are no Action pending claims, lawsuits or actions relating to any Company Benefit Plan (including any investigationother than ordinary course claims for benefits) and, audit or other administrative proceeding) 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 Company none are threatened. Except as disclosed on Disclosure Schedule 4.2(j)(viii), neither the Merger, nor subsequent events where consequences result solely as a result of both the occurrence of the subsequent event and the occurrence of the Merger, shall accelerate the time of payment or vesting, or increase the amount, of compensation due to any employee, officer, former employee or former officer of 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, threatenedCompany has no liability to provide post-retirement health or life benefits to any employee or former employee. To the Knowledge of Company, relating 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 PlansBenefit 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. Unless specifically disclosed on such schedule, no such payment will be nondeductible or subject to excise tax under Code Section 4999 or 280G, nor will Parent Bank 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 fiduciaries thereof 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 by this Agreement with respect to their duties to the any insurance, annuity or investment contracts or other similar investment held by any Company Plans or the assets of any of the trusts under any of the 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;Benefit Plan.
(ivxii) neither the Each Company nor its Subsidiaries nor any of their Affiliates has incurred any direct or indirect liability under ERISA or the Code in connection with the termination of, withdrawal from or failure to fund, any Company Benefit Plan or other retirement plan or arrangement, and no fact or event exists that would reasonably be expected to give rise to any such liability; and
(v) the Company and its Subsidiaries do not maintain any Company Plan that which is a “group health plan” (as such term is defined in Section 5000(b)(1the Code and ERISA) of the Code) that has not been administered and operated in compliance, in all respects in compliance material respects, with the applicable requirements Part 6 of Section 601 Subtitle B of Title 1 of ERISA and Section 4980B(b) Sections 4980B and 4980D of the CodeCode and any analogous state law. No failure has occurred that would subject Parent Bank or any of its Subsidiaries to tax under Code § 4980B or 4980D. Each such plan is in compliance, in 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 Subsidiaries are not subject to any liability, including additional contributions, fines, penalties or loss of Tax deductions, as a result of such administration and operation; and
(d) None of the Company Plans provides for payment of a benefitcompanion bxxx, the increase Health Care and Education Reconciliation Act of a benefit amount2010, the payment of a contingent benefit, the acceleration of a payment or the 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 hereby (either alone or in conjunction with any other event). None of the Company Plans or any other plan agreement or arrangement in effect immediately prior to the Closing could result separately or in the aggregate in connection with the transactions contemplated by this Agreement (either alone or in conjunction with any other event) in the payment of any “excess parachute payment” within the meaning of Section 280G of the Codeextent applicable.
(exiii) 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 maintains and may withdraw from any 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) Each Company Benefit Plan that is a “nonqualified deferred compensation plan” within the meaning of Section Code § 409A(d)(1) (a “Nonqualified Deferred Compensation Plan”) subject to Code § 409A has (i) been maintained and operated since January 1, 2005 (or, if later, from its inception) in good faith compliance with Section 409A of the Code and all applicable IRS regulations promulgated thereunder and, as to any such plan in existence prior to January 1, 2005, has complied not been “materially modified” (within the meaning of IRS Notice 2005-1) at any time after October 3, 2004, or has been amended in form and operation 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 current additional tax under Section 409A(a)(1)(B) of the Code has been or former employee, director is reasonably expected to be incurred by a participant in any such Company Benefit Plan or other service provider contract, plan, program, agreement, or arrangement. Neither Company nor any Subsidiary is entitled to a party to, or otherwise obligated under, any contract, agreement, plan or arrangement that provides for the gross-up, make-whole or other additional payment from the Company or any up of its Subsidiaries in respect of any Tax (including Federal, state, local or foreign income, excise or other Taxes (including Taxes taxes imposed under by Section 409A and 4999 409A(a)(1)(B) of the Code)) or interest or penalty related thereto.
Appears in 1 contract
Samples: Merger Agreement (Sierra Bancorp)
Benefit Plans. (a) The Company is not subject to any agreements and other commitments related to company pensions (“betriebliche Altersversorgung”) and there is no Company pension plan or scheme or other, except for the capital formation benefits pursuant to the Capital Formation Act and statutory obligations to provide deferred compensation (“Entgeltumwandlung”).
(b) Section 3.11(a2.17(b) of the Disclosure Schedule contains a complete and accurate list of all Benefit Plans. The Company Disclosure Letter sets forth a true and complete listhas no agreement, as of the date hereofarrangement, of each “employee benefit plan” (within the meaning of section 3(3) of the Employee Retirement Income Security Act of 1974 (“ERISA”)), “multiemployer plan” (within the meaning of ERISA section 3(37)) and all stock purchase, stock option, phantom stock commitment or other equity-based plan, severance, employment, collective bargaining, 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 or required in the future as a result of the transactions contemplated by this Agreement or otherwise)obligation, whether formal or informal, whether written or unwritten, to create, enter into or contribute to any additional Benefit Plan, or to modify or amend any existing Benefit Plan. There has been no amendment, interpretation or other announcement (written or oral, legally binding or not, under which any current or former employee, director or consultant of ) by the Company relating to, or its Subsidiaries change in participation or coverage under, any Benefit Plan that, either alone or together with other such items or events, could materially increase the expense of maintaining such Benefit Plan (or any the Benefit Plans taken as a whole) above the level of their dependentsexpense incurred with respect thereto for the most recent fiscal year included in the Financial Statements.
(c) The Company has any present or future right delivered to compensation or benefits or the Company or its Subsidiaries has had or has any present or future liability or Buyer, with respect to which it is otherwise bound each Benefit Plan (collectively, the “Company Plans”). With respect to each Company Plan, the Company has made available to Parent a true and complete copy thereof and, to the extent applicable: applicable thereto), true, correct and complete copies of (i) any related trust agreement or other funding instrumentall documents embodying such Benefit Plan (including all amendments thereto) or, if such Benefit Plan is not in writing (e.g. in cases of commitments based on works custom (“betriebliche Übung”)), a written description of such Benefit Plan, (ii) the last three (3) annual reports filed with respect to such Benefit Plan; (iii) the most recent summary plan description, and all summaries of material modifications related thereto, distributed with respect to such Benefit Plan; (iv) the most recent employee handbook distributed to employees; (v) all contracts and agreements (and any amendments thereto) relating to such Benefit Plan, including, without limitation, all trust agreements, investment management agreements, annuity contracts, insurance contracts, bonds, indemnification agreements and service provider agreements; (vi) the most recent determination letter of issued by the Internal Revenue Service competent German taxing authorities with respect to such Benefit Plan; (vii) the “IRS”), if applicable, most recent annual actuarial valuation prepared for such Benefit Plan; (iiiviii) any summary plan description and other the most recent financial statement prepared for such Benefit Plan; (ix) all written communications (or a description of any oral communications) by the Company or its Subsidiaries to their employees concerning the extent of the benefits provided under a Company Planemployees, and (iv) for the two most recent years (A) the Form 5500 and attached schedules, (B) audited financial statements, (C) actuarial valuation reports and (D) attorney’s response to an auditor’s request for information.
(b) No Company Plan is subject to Title IV of ERISA or Section 412 of the Code, no Company Plan is a multiemployer plan (within the meaning of Section 3(37) of ERISA), and neither the Company nor any member of its Controlled Group (defined as any organization which is a member of a controlled group of organizations within the meaning of Code Sections 414(b), (c), (m) or (o)) has any liability (direct or contingent) with respect to, and has never incurred any liability (director or contingent) with respect to, any employee benefit plan subject to Title IV of ERISA. No Company Plan provides health or other welfare benefits to former employees of the Company or its Subsidiaries other than health continuation coverage pursuant to COBRA.
(c) With respect to the Company Plans, except to the extent that the inaccuracy provisions of any of the representations such Benefit Plan as described therein differ materially from such provisions as set forth in this paragraph (c), individually or described in the aggregate, has not been other information or materials furnished under this Section 2.17(c); and would not reasonably be expected (x) all material correspondence to be material or from any Governmental Entity relating to the Company and its Subsidiaries, taken as a whole:such Benefit Plan.
(d) With respect to each Benefit Plan: (i) each Company such Benefit Plan was properly and legally established; (ii) such Benefit Plan is, and at all times since inception has been established been, maintained, operated, administered and administered funded in all material respects in accordance with its terms and in compliance with all applicable requirements of all applicable laws, statutes, orders, rules and regulations, including, competent German taxing authorities; (iii) the applicable provisions Company and each other Person (including, without limitation, all fiduciaries) have, at all times, properly performed all of applicable Lawtheir duties and obligations (whether arising by operation of law, including ERISA by contract or otherwise) under or with respect to such employee Benefit Plan, including, without limitation, all fiduciary, reporting, disclosure and the Codenotification duties and obligations; and (iv) all returns and reports (together with all schedules and audit reports required with respect thereto), notices, statements and all contributions other disclosures relating to such Benefit Plan required to be made under the terms of filed with any Company Governmental Entity or agency or distributed to any participant therein have been properly prepared and duly filed or distributed in a timely manner.
(e) All contributions, premiums and other payments due or required to be paid to (or with respect to) each Benefit Plan have been timely made;paid, or, if not yet due, have been accrued as a liability on the Most Recent Balance Sheet. There are no unfunded benefit obligations under any Benefit Plan which have not been accounted for by reserves, or otherwise fully accrued on the Most Recent Balance Sheet.
(iif) each Company Plan intended to be qualified under Section 401(a) of the Code has received a favorable determinationThere are no actions, advisory suits or opinion letter, as applicable, from the IRS that it is so qualified and nothing has occurred that would reasonably be expected to cause the loss of such qualified status of such Company Plan;
(iii) there is no Action (including any investigation, audit or other administrative proceeding) 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 the Company, threatened, relating to the Company Plans, any fiduciaries thereof with respect to their duties to the Company Plans or the assets of any of the trusts under any of the Company Plans claims (other than routine claims for benefits) pending or, to the Knowledge of the Company, threatened with respect to (or against the assets of) any Benefit Plan, nor are is there facts or circumstances that exist that could reasonably give rise to a basis for any such Actions;action, suit or claim. No Benefit Plan is currently under investigation, audit or review, directly or indirectly, by any Governmental Entity, and, to the Knowledge of the Company, no such action is contemplated or under consideration by any Governmental Entity.
(ivg) neither the Company nor its Subsidiaries nor any of their Affiliates has incurred any direct or indirect liability under ERISA or the Code in connection with the termination of, withdrawal from or failure to fund, any Company Plan or other retirement plan or arrangement, and no fact or event exists that would reasonably be expected to give rise to any such liability; and
(v) the Company and its Subsidiaries do not maintain any Company Plan that is a “group health plan” (as such term is defined in Section 5000(b)(1) of the Code) that has not been administered and operated in all respects in compliance with the applicable requirements of Section 601 of ERISA and Section 4980B(b) of the Code, and the Company and its Subsidiaries are not subject to any liability, including additional contributions, fines, penalties or loss of Tax deductions, as a result of such administration and operation; and
(d) None of the Company Plans provides for payment of a benefit, the increase of a benefit amount, the payment of a contingent benefit, the acceleration of a payment or the vesting of a benefit determined or occasioned, in whole or in part, by reason of Neither the execution and delivery of this Agreement or nor the consummation of the transactions contemplated hereby Transactions (either alone or in conjunction with the aggregate) will (i) entitle any individual to severance pay, unemployment compensation or any other event). None payment from the Company, Buyer or any Benefit Plan, (ii) otherwise increase the amount of compensation due to any individual or forgive indebtedness owed by any individual, (iii) result in any benefit or right becoming established or increased, or accelerate the time of payment or vesting of any material benefit, under any Benefit Plan, (iv) require the Company, Buyer or any of their respective Affiliates to transfer or set aside any assets to fund or otherwise provide for any benefits for any individual, or (v) impair in any way the rights of the Company Plans under any Benefit Plan or Contract related to any other plan agreement Benefit Plan to which the Company is a party (including, without limitation, the right to amend or arrangement in effect immediately prior terminate any Benefit Plan to the Closing could result separately or in the aggregate in connection with the transactions contemplated extent permitted by this Agreement (either alone or in conjunction with any other event) in the payment of any “excess parachute payment” within the meaning of Section 280G of the CodeGerman Law).
(e) Each Company Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A(d)(1) of the Code has complied in form and operation with the requirements of Section 409A of the Code. No current or former employee, director or other service provider is entitled to any gross-up, make-whole or other additional payment from the Company or any of its Subsidiaries in respect of any Tax (including Federal, state, local or foreign income, excise or other Taxes (including Taxes imposed under Section 409A and 4999 of the Code)) or interest or penalty related thereto.
Appears in 1 contract
Benefit Plans. (a) Section 3.11(a4.9(a) of the Company Disclosure Letter sets forth Schedules contains a true correct and complete listlist of each Company Plan and each NOV Benefit Plan. Except as set forth in Section 4.9(a) of the Disclosure Schedules, the Company does not provide access or benefits under any Company Plan or NOV Benefit Plan to Union Employees.
(b) With respect to each Company Plan and each NOV Benefit Plan, the Company has provided a true, correct and complete copy of the following documents, to the extent applicable: (i) all material plan documents (and, to the extent no written document exists, a written summary thereof), and all amendments thereto, including, solely with respect to each Company Plan (disregarding for this purpose clause (ii) of such definition), any related trust documents, insurance contracts or other funding arrangements, and (ii) the most recent summary plan descriptions and summaries of material modifications.
(c) Except as set forth in Section 4.9(c) of the Disclosure Schedules, (i) all benefits, contributions to, premiums required by, and payments from, the Company Plans or the NOV Benefit Plans or applicable Law, which are required to have been made, paid, or provided by or on behalf of the Company with respect to any period ending on or before the Closing Date, in accordance with such Company Plans or NOV Benefit Plans, have been timely made, paid, or provided, and (ii) all payments required to be made by the Company under any Collective Bargaining Agreement to which the Company is subject as of the date hereofof this Agreement with respect to Benefit Plans covering Union Employees with respect to any period ending on or before the Closing Date have been timely made.
(d) Except as set forth in Section 4.9(d) of the Disclosure Schedules, of each no Company Plan or NOV Benefit Plan is and neither any Company nor any ERISA Affiliate maintains, sponsors, contributes to, participates in, has any obligation to contribute to, or has ever sponsored, maintained, contributed to, participated in or had any obligation to contribute to, or has or has ever had any current or potential obligation or liability under or with respect to any: (i) “employee pension benefit plan” (within the meaning of section 3(3as defined in Section 3(2) of the Employee Retirement Income Security Act of 1974 (“ERISA”)), subject to Title IV of ERISA or the minimum funding standards of Section 302 of ERISA or Section 412 or Section 430 of the Code; (ii) “multiemployer plan” (within the meaning of ERISA section Section 3(37) or Section 4001(a)(3) of ERISA); (iii) and all stock purchase, stock option, phantom stock or other equity-based plan, severance, employment, collective bargaining, 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 multiple employer plan (including any funding mechanism therefor now as described in effect or required in the future as a result Section 413(c) of the transactions contemplated by this Agreement Code or otherwise29 C.F.R. § 4001.2), whether formal or informal(iv) “multiple employer welfare arrangement” (within the meaning of Section 3(40) of ERISA).
(e) Except as set forth in Section 4.9(e) of the Disclosure Schedules, (i) there are no pending Claims or Proceedings of which the Company or Seller has received any written notice within the past three (3) years, and to Seller’s Knowledge, no Claims or oral, legally binding Proceedings are threatened in respect of any of the Company Plans or not, under which the NOV Benefit Plans by or on behalf any current or former employee, director or consultant independent contractor of the Company, including any Employee or beneficiary covered under any such Company Plan or its Subsidiaries (or any of their dependents) has any present or future right to compensation or benefits or the Company or its Subsidiaries has had or has any present or future liability or with respect to which it is otherwise bound (collectively, the “Company Plans”). With respect to each Company NOV Benefit Plan, the or otherwise involving any such Company has made available to Parent a true Plan or NOV Benefit Plan (other than routine Proceedings for benefits), and complete copy thereof and, to the extent applicable: (i) any related trust agreement or other funding instrument, (ii) the most recent determination letter of the Internal Revenue Service (the “IRS”), if applicable, (iii) any summary plan description and other written communications (to Seller’s Knowledge no facts or a description of any oral communications) by the Company or its Subsidiaries to their employees concerning the extent of the benefits provided under a Company Plan, and (iv) for the two most recent years (A) the Form 5500 and attached schedules, (B) audited financial statements, (C) actuarial valuation reports and (D) attorney’s response to an auditor’s request for information.
(b) No Company Plan is subject to Title IV of ERISA or Section 412 of the Code, no Company Plan is a multiemployer plan (within the meaning of Section 3(37) of ERISA), and neither the Company nor any member of its Controlled Group (defined as any organization which is a member of a controlled group of organizations within the meaning of Code Sections 414(b), (c), (m) or (o)) has any liability (direct or contingent) with respect to, and has never incurred any liability (director or contingent) with respect to, any employee benefit plan subject to Title IV of ERISA. No Company Plan provides health or other welfare benefits to former employees of the Company or its Subsidiaries other than health continuation coverage pursuant to COBRA.
(c) With respect to the Company Plans, except to the extent circumstances exist that the inaccuracy of any of the representations set forth in this paragraph (c), individually or in the aggregate, has not been and would not could reasonably be expected to be material give rise to the Company and its Subsidiaries, taken as a whole:
(i) each any such Claims or Proceedings. Each Company Plan and NOV Benefit Plan has been established been, and is being, established, maintained, operated and administered in all material respects in accordance with its terms and in material compliance with the applicable provisions of applicable Law, including ERISA and the Code, and all contributions required to be made under the terms of any Laws. Each Company Plan have been timely made;
(ii) and each Company NOV Benefit Plan intended to be qualified qualify under Section 401(a) of the Code has received a favorable determination, advisory or opinion letter, as applicable, determination letter from the IRS that it is such Company Plan and NOV Benefit Plan and does so qualified qualify, and any trusts intended to be exempt from federal income taxation under the provisions of Section 501(a) of the Code are so exempt. To Seller’s Knowledge, nothing has occurred with respect to the operation of any such Company Plan or material NOV Benefit Plan that would could reasonably be expected to cause the denial or loss of such qualified status of such Company Plan;qualification or exemption.
(iiif) there is no Action (including any investigation, audit or other administrative proceeding) 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 the Company, threatened, relating to the Company Plans, any fiduciaries thereof with respect to their duties to the Company Plans or the assets of any of the trusts under any of the 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;
(iv) neither the Company nor its Subsidiaries nor any of their Affiliates has incurred any direct or indirect liability under ERISA or the Code in connection with the termination of, withdrawal from or failure to fund, any Company Plan or other retirement plan or arrangement, and no fact or event exists that would reasonably be expected to give rise to any such liability; and
(v) the Company and its Subsidiaries do not maintain any Company Plan that is a “group health plan” (Except as such term is defined set forth in Section 5000(b)(14.9(f) of the Code) that has not been administered and operated in all respects in compliance with the applicable requirements of Section 601 of ERISA and Section 4980B(b) of the CodeDisclosure Schedules, and the Company and its Subsidiaries are not subject to any liability, including additional contributions, fines, penalties or loss of Tax deductions, as a result of such administration and operation; and
(d) None of the Company Plans provides for payment of a benefit, the increase of a benefit amount, the payment of a contingent benefit, the acceleration of a payment or the vesting of a benefit determined or occasioned, in whole or in part, by reason of neither the execution and delivery of this Agreement or nor the consummation of the transactions contemplated hereby (could, either alone or in conjunction connection with any other event). None event(s) reasonably be expected to, (i) result in any payment or benefit becoming due to any current or former employee, individual independent contractor or director of the Company or the Business, including any Employee or under any Company Plan or NOV Benefit Plan, (ii) increase any amount of compensation or benefits otherwise payable to any current or former employee, individual independent contractor or director of the Company or the Business, including any Employee or under any Company Plan or NOV Benefit Plan, or (iii) result in the acceleration of the time of payment, funding or vesting of any benefits to any current or former employee, individual independent contractor or director of the Company or the Business, including any Employee or under any Company Plan or NOV Benefit Plan.
(g) Except as set forth in Section 4.9(e) of the Disclosure Schedules, none of the Company Plans or NOV Benefit Plans provides for health, welfare or life insurance benefits or coverage for any other plan agreement participant or arrangement in effect immediately prior any beneficiary of a participant beyond the termination of an employee’s employment, except as may be required under Section 4980B of the Code, or similar state Law and at the sole expense of such participant or the participant’s beneficiary.
(h) The Company maintains no obligation to gross-up or reimburse any Person for any Tax or related interest or penalties incurred by such Person, including under Sections 409A or 4999 of the Closing could result separately Code or in otherwise.
(i) Neither the aggregate in connection with execution and delivery of this Agreement nor the consummation of the transactions contemplated by this Agreement (hereby, either alone or in conjunction connection with any other eventevent(s) could reasonably be expected to result in the payment of any “excess parachute payment” within as defined in Section 280G(b)(1) of the meaning Code, any excise tax owing under Section 4999 of the Code or any other amount that would not be deductible under Section 280G of the Code.
(ej) Each No event has occurred and no condition exists that would subject the Company Plan that is a “nonqualified deferred compensation plan” within the meaning either directly or indirectly by reason of Section 409A(d)(1) of its affiliation with any ERISA Affiliate to any material Tax, fine, lien, penalty or other liability imposed by XXXXX, the Code has complied in form and operation with the requirements of Section 409A of the Code. No current or former employee, director or other service provider is entitled to any gross-up, make-whole or other additional payment from the Company or any of its Subsidiaries other applicable Law in respect of any Tax (including Federalcompensation or employee benefit plan, stateprogram, local policy, practice, agreement or foreign income, excise or other Taxes (including Taxes imposed under Section 409A and 4999 of the Code)) or interest or penalty related theretoarrangement.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Arcosa, Inc.)
Benefit Plans. (ai) Section 3.11(aDisclosure Schedule 4.2(j)(i) of the Company Disclosure Letter sets forth a true and complete list, as list of the date hereof, of each all “employee benefit plan” (within the meaning of section plans”, as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974 (“ERISA”)), “multiemployer plan” (within the meaning of whether or not subject to ERISA section 3(37)) and all stock purchase, stock option, phantom stock or other equity-based plan, severance, employment, collective bargaining, change-in-control, educational assistance, adoption assistance, fringe benefit, collective bargaining, 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 or required in the future as a result of the transactions contemplated by this Agreement or otherwise)ERISA, whether formal or informal, written oral or oralwritten, legally binding or notnot (all the foregoing being herein called “Benefit Plans”), under which any current employee, director, independent contractor or former employee, director or consultant independent contractor of the Company or its Subsidiaries (Company, or any spouse or dependent of their dependents) any such employee or director, has any present or future right to compensation benefits, and which is (or benefits was prior to its termination) sponsored, maintained or the contributed to by Company or its Subsidiaries has had or under which Company has any present or future liability or with respect to which it is otherwise bound (collectively, the “Company Benefit Plans”). With respect to each Company Plan, the Company has provided or made available to Parent a true true, correct and complete copy thereof of (A) such Company Benefit Plan and all related amendments thereto, (B) each trust agreement, summaries, employee booklets or handbooks, annuity contracts, insurance policies or any other funding instruments (“Funding Arrangements”) relating to such Company Benefit Plan and all related amendments thereto, (C) the most recent summary plan description 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, (D) the most recent annual report (Form 5500) filed with the IRS and, to where applicable, the extent applicable: related audited financial statements thereof, (iE) any related trust agreement or other funding instrumentcontracts with independent contractors (including actuaries, investment managers, etc.) that relate to any Company Benefit Plan, and (iiF) the most recent determination letter (or equivalent) issued by the IRS with respect to any Company Benefit Plan qualified under Section 401(a) of the Internal Revenue Service Code. There are no unwritten amendments to any Company Benefit Plan.
(ii) Each Company Benefit Plan that is represented to be qualified under Section 401(a) of the “IRS”Code either has a favorable determination letter that covers all existing amendments up to and including EGTRRA or is an adoption of a prototype or volume submitter plan for which a favorable opinion letter has been issued up to and including EGTRRA, on which 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 Company is not aware of any circumstances likely to result in revocation of any such favorable determination or inability to rely on any opinion letter except as disclosed on Disclosure Schedule 4.2(j)(ii). Each 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) of the Code and, except as disclosed on Disclosure Schedule 4.2(j)(ii), if applicableall reports, descriptions and filings required by the Code, ERISA or any government agency with respect to each Company Benefit Plan have been timely and completely filed or distributed.
(iii) any summary plan description and other written communications (or a description of any oral communications) by To the Company or its Subsidiaries to their employees concerning the extent Knowledge of the benefits provided under a Company, no Company Plan, and (iv) for the two most recent years (A) the Form 5500 and attached schedules, (B) audited financial statements, (C) actuarial valuation reports and (D) attorney’s response to an auditor’s request for information.
(b) No Company Benefit Plan is subject to Title IV of ERISA or Section 412 of the Code, no Company Plan is a multiemployer defined benefit plan (within the meaning of Section 3(373(35) of ERISAERISA 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 neither Company has not at any time during the Company nor last six (6) years, sponsored, maintained, contributed to or been obligated to contribute to any member of its Controlled Group (defined as any organization which is a member of a controlled group of organizations within the meaning of Code Sections 414(b), (c), (m) or (o)) has any liability (direct or contingent) with respect to, and has never incurred any liability (director or contingent) with respect to, any employee benefit plan subject to Title IV of ERISA. No Company Benefit Plan provides health is subject to the funding standards of Sections 412 or other welfare benefits to former employees 436 of the Company Code or its Subsidiaries other than health continuation coverage pursuant to COBRASection 302 of ERISA.
(civ) All contributions (including, without limitations, all employer contributions, employee salary reduction contributions and all premiums or other payments (other than claims)) that are due and payable on or before the Closing Date have been timely paid to or made with respect to each Company Benefit Plan and, to the extent not presently payable, appropriate reserves have been established for the payment and properly accrued in accordance with customary accounting practices. Pro-rata annual 401k and performance bonuses shall be paid based on amounts accrued at the end of the month prior to the Closing from Company accruals.
(v) all obligations required to be performed by Company under any Company Benefit Plan have been performed by them in all material respects and they are not in default under or in violation of any material provision of any Company Benefit Plan. There have been no prohibited transactions (described under Section 406 of ERISA or Section 4975(c) of the Code), breaches of fiduciary duty or any other breaches or violations of any law applicable to the Company Benefit Plans that would directly or indirectly subject Parent or Company to any taxes, penalties or other liabilities, including any liability arising through indemnification.
(vi) Except as 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 407(d) of ERISA), other than the Company Stock Incentive Plans.
(vii) With respect to the Company Benefit Plans, except 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 extent payment of cash based on the value of Company Common Stock (A) has an exercise price that was less than the inaccuracy of any fair market value of the representations set forth underlying equity as of the date such stock option or right was granted, as determined by Company in this paragraph (c), individually or in the aggregate, has not been and would not reasonably be expected to be material to the Company and its Subsidiaries, taken as a whole:
(i) each Company Plan has been established and administered in accordance with its terms good faith and in compliance with the applicable provisions 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 Lawregulations under Section 409A).
(viii) There are no pending claims, including ERISA and the Code, and all contributions required lawsuits or actions relating to be made under the terms of any Company Benefit Plan have been timely made;
(iiother than ordinary course claims for benefits) each Company Plan intended to be qualified under Section 401(a) of the Code has received a favorable determinationand, advisory or opinion letter, as applicable, from the IRS that it is so qualified and nothing has occurred that would reasonably be expected to cause the loss of such qualified status of such Company Plan;
(iii) there is no Action (including any investigation, audit or other administrative proceeding) 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 Company none are threatened. Except as disclosed on Disclosure Schedule 4.2(j)(viii), neither the Merger, nor subsequent events where consequences result solely as a result of both the occurrence of the subsequent event and the occurrence of the Merger, shall accelerate the time of payment or vesting, or increase the amount, of compensation due to any employee, officer, former employee or former officer of 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, threatenedCompany has no liability to provide post-retirement health or life benefits to any employee or former employee. 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, relating 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 Plansof 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. 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 fiduciaries thereof 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 by this Agreement with respect to their duties to the any insurance, annuity or investment contracts or other similar investment held by any Company Plans or the assets of any of the trusts under any of the 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;Benefit Plan.
(ivxii) neither the Each Company nor its Subsidiaries nor any of their Affiliates has incurred any direct or indirect liability under ERISA or the Code in connection with the termination of, withdrawal from or failure to fund, any Company Benefit Plan or other retirement plan or arrangement, and no fact or event exists that would reasonably be expected to give rise to any such liability; and
(v) the Company and its Subsidiaries do not maintain any Company Plan that which is a “group health plan” (as such term is defined in Section 5000(b)(1the Code and ERISA) has been operated in compliance, in all material respects, with Part 6 of Subtitle B of Title 1 of ERISA and Sections 4980B and 4980D of the Code and any analogous state law. No failure has occurred that would subject Parent or any of its Subsidiaries to tax under Sections 4980B or 4980D of the Code) that has not been administered and operated . Each such plan is in compliance, in all respects in compliance with the applicable requirements of Section 601 of ERISA and Section 4980B(b) of the Codematerial 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 Subsidiaries are not subject to any liability, including additional contributions, fines, penalties or loss of Tax deductions, as a result of such administration and operation; and
(d) None of the Company Plans provides for payment of a benefitcompanion bxxx, the increase Health Care and Education Reconciliation Act of a benefit amount2010, the payment of a contingent benefit, the acceleration of a payment or the 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 hereby (either alone or in conjunction with any other event). None of the Company Plans or any other plan agreement or arrangement in effect immediately prior to the Closing could result separately or in the aggregate in connection with the transactions contemplated by this Agreement (either alone or in conjunction with any other event) in the payment of any “excess parachute payment” within the meaning of Section 280G of the Codeextent applicable.
(exiii) Each 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 maintains and may withdraw from any 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 the 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 complied (i) been maintained and operated since January 1, 2005 (or, if later, from its inception) in form good faith compliance with Section 409A of the Code and operation 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 current additional tax under Section 409A(a)(1)(B) of the Code has been or former employee, director is reasonably expected to be incurred by a participant in any such Company Benefit Plan or other service provider contract, plan, program, agreement, or arrangement. Neither Company nor any Subsidiary is entitled to a party to, or otherwise obligated under, any contract, agreement, plan or arrangement that provides for the gross-up, make-whole or other additional payment from the Company or any up of its Subsidiaries in respect of any Tax (including Federal, state, local or foreign income, excise or other Taxes (including Taxes taxes imposed under by Section 409A and 4999 409A(a)(1)(B) of the Code)) or interest or penalty related thereto.
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Benefit Plans. (a) Section 3.11(a) of the The Company Disclosure Letter sets forth has provided to Parent a true and complete list, as of the date hereof, list of each material (i) “employee benefit plan” (within the meaning of section 3(3) of the Employee Retirement Income Security Act of 1974 1974, as amended (“ERISA”)), (ii) “multiemployer planplans” (within the meaning of ERISA section 3(37)), and (iii) and all stock purchase, stock option, phantom stock or other equity-based plan, severance, employment, collective bargaining, 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 or required in the future as a result of the transactions contemplated by this Agreement or otherwise), whether formal or informal, written or oral, legally binding or not, under which any current or former employee, director or consultant of the Company or its Subsidiaries (or any of their dependents) has any present or future right to compensation or benefits or the Company or its Subsidiaries has had or has any present or future liability or with respect liability. All such plans, agreements, programs, policies and arrangements, other than Multiemployer Plans, as defined below, shall be collectively referred to which it is otherwise bound (collectively, as the “Company Plans”). .” With respect to each Company Plan, the Company has furnished or made available to Parent a true current, accurate and complete copy thereof and, to 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 (the “IRS”), if applicable, (iii) any summary plan description and other written communications (or a description summaries of any oral communications) by the Company or its Subsidiaries to their employees concerning the extent of the benefits provided under a Company Plan, material modifications thereto and (iv) for the two most recent years year (A) the Form 5500 and attached schedules, (B) audited financial statements, (C) actuarial valuation reports and (D) attorney’s response to an auditor’s request for information.
(b) No Company Plan is subject to Title IV of ERISA or Section 412 of the Code, no Company Plan is a multiemployer plan (within the meaning of Section 3(37) of ERISA), and neither the Company nor any member of its Controlled Group (defined as any organization which is a member of a controlled group of organizations within the meaning of Code Sections 414(b), (c), (m) or (o)) has any liability (direct or contingent) with respect to, and has never incurred any liability (director or contingent) with respect to, any employee benefit plan subject to Title IV of ERISA. No Company Plan provides health or other welfare benefits to former employees of the Company or its Subsidiaries other than health continuation coverage pursuant to COBRA.
(c) With respect to the Company Plans, except as disclosed in the Company SEC Documents or to the extent that the inaccuracy of any of the representations set forth in this paragraph (c)Section 3.12, individually or in the aggregate, has have not been had, and would not reasonably be expected to be material to the Company and its Subsidiarieshave, taken as a wholeMaterial Adverse Effect:
(i) each Company Plan has been established and administered in accordance with its terms and in compliance with the applicable provisions of applicable Law, including ERISA and the Code, and no reportable event, as defined in Section 4043 of ERISA, no prohibited transaction by the Company or, to the knowledge of the Company, by any Person who the Company has an obligation to indemnify, as described in Section 406 of ERISA or Section 4975 of the Code, or accumulated funding deficiency, as defined in Section 302 of ERISA and 412 of the Code, has occurred with respect to any Company Plan, and all contributions required to be made under the terms of any Company Plan have been timely made;
(ii) each Company Plan intended to be qualified under Section 401(a) of the Code has received a favorable determination, advisory or opinion letter, as applicable, from the IRS that it is so qualified and nothing has occurred that would reasonably be expected to cause the loss of such qualified status of such Company Plan;
(iii) there is no Action (including any investigation, audit or other administrative proceeding) by the Department of Labor, the Pension Benefit Guaranty CorporationCorporation (the “PBGC”), the IRS or any other Governmental Entity or by any plan participant or beneficiary pending, or to the Knowledge knowledge of the Company, threatened, relating to the Company Plans, any fiduciaries thereof with respect to their duties to the Company Plans or the assets of any of the trusts under any of the Company Plans (other than routine claims for benefits);
(iii) nor are there facts within the last year, the Company has not received any written or circumstances that exist that could reasonably give rise oral communication from the PBGC with respect to any Company Plan subject to Title IV of ERISA concerning the funded status of any such ActionsCompany Plan;
(iv) neither (A) the Company nor and its ERISA Affiliates have no liability with respect to any “multiemployer plan” (as defined in Section 3(37) of ERISA) (a “Multiemployer Plan”); and (B) none of the Company, its Subsidiaries nor any of their ERISA Affiliates has incurred any direct liability to a Multiemployer Plan as a result of a complete, partial or indirect mass withdrawal from such Multiemployer Plan, as those terms are defined in Part I of Subtitle E of Title IV of ERISA, that has not been satisfied in full; and
(v) with respect to each Company Plan currently or formerly maintained by the Company, a Subsidiary or any member of their Controlled Group that is subject to Title IV of ERISA, the Company has not incurred, nor does it reasonably expect to incur, any material liability under ERISA to the Company Plan or to the Code PBGC in connection with the termination of, withdrawal from or failure to fund, any such Company Plan.
(c) Each Company Plan intended to be qualified under Section 401(a) of the Code has received a favorable determination or other retirement plan or arrangementopinion letter, as applicable, from the IRS that it is so qualified and no fact or event exists nothing has occurred since the date of such letter that would reasonably be expected to give rise to any such liability; and
(v) cause the Company and its Subsidiaries do not maintain any Company Plan that is a “group health plan” (as such term is defined in Section 5000(b)(1) of the Code) that has not been administered and operated in all respects in compliance with the applicable requirements of Section 601 of ERISA and Section 4980B(b) of the Code, and the Company and its Subsidiaries are not subject to any liability, including additional contributions, fines, penalties or loss of Tax deductions, as a result such qualified status of such administration and operation; andCompany Plan.
(d) None of the Company Plans provides provide for payment of a benefit, the increase of a benefit amount, the payment of a contingent benefit, benefit or the acceleration of a the payment or the 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 hereby (either alone or in conjunction with any other event). None of the Company Plans or any other plan agreement or arrangement in effect immediately prior to the Closing could result separately or in the aggregate in connection with the transactions contemplated by this Agreement (either alone or in conjunction with any other event) in the payment of any “excess parachute payment” within the meaning of Section 280G of the Codehereby.
(e) Each Company Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A(d)(1) of the Code has has, to the knowledge of the Company, complied in form and operation operations with the requirements of Section 409A of the CodeCode as in effect from time-to-time. No current or former employeeThe Company has no obligation to “gross up” any tax, director interest charge or other service provider is entitled obligation incurred pursuant to any gross-up, make-whole or other additional payment from the Company or any of its Subsidiaries in respect of any Tax (including Federal, state, local or foreign income, excise or other Taxes (including Taxes imposed under Section 409A and or 4999 of the Code)) or interest or penalty related thereto.
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