Benefit Plans. (i) Set forth on Schedule 3.19(a) is a true and complete list of each material Benefit Plan of the Purchaser and its Subsidiaries (each, a “Purchaser Benefit Plan”). With respect to each Purchaser Benefit Plan, there are no funded benefit obligations for which contributions have not been materially made or properly accrued and there are no material unfunded benefit obligations that have not been accounted for by reserves, or otherwise properly footnoted in accordance with GAAP on the Purchaser Financials. Except as set forth on Schedule 3.19(a), neither the Purchaser nor any Subsidiary or has in the past been a member of a “controlled group” for purposes of Section 414(b), (c), (m) or (o) of the Code other than with the Purchaser or another Subsidiary, nor does the Purchaser or any Subsidiary have any Liability with respect to any collectively-bargained for plans, whether or not subject to the provisions of ERISA. (ii) Each Purchaser Benefit Plan in all material respects is and has been operated in compliance with all applicable Laws in all material respects, including ERISA and the Code. Each Purchaser Benefit Plan which is intended to be “qualified” within the meaning of Section 401(a) of the Code (i) has been determined by the IRS to be so qualified (or is based on a prototype plan which has received a favorable opinion letter) during the period from its adoption to the date of this Agreement and (ii) is funded through a trust exempt from taxation under Section 501(a) of the Code. To the Knowledge of the Purchaser, no fact exists which could adversely affect the qualified status of such Purchaser Benefit Plans or the exempt status of such trusts. (iii) With respect to each Purchaser Benefit Plan, the Purchaser has made available to the Seller accurate and complete copies, if applicable, of: (i) all Purchaser Benefit Plan documents and agreements and related trust agreements or annuity Contracts (including any amendments, modifications or supplements thereto); (ii) all summary plan descriptions and material modifications thereto; (iii) the three (3) most recent Forms 5500, if applicable, and annual report, including all schedules thereto; (iv) the most recent annual and periodic accounting of plan assets; (v) the three (3) most recent nondiscrimination testing reports; (vi) the most recent determination letter received from the IRS, if any; (vii) the most recent actuarial valuation; and (viii) all material written communications between the Purchaser or any Subsidiary or any Purchaser Benefit Plan and any Governmental Authority and relating to a Purchaser Benefit Plan within six (6) years preceding the date of this Agreement. (iv) With respect to each Purchaser Benefit Plan: (i) such Purchaser Benefit Plan has been administered and enforced in all material respects in accordance with its terms, the Code and ERISA; (ii) neither the Purchaser nor any Subsidiary nor any employee, officer or director thereof that is a fiduciary (under ERISA) with respect to such Purchaser Benefit Plan has breached any of its fiduciary responsibilities, obligations or duties imposed on it by ERISA; (iii) no Action is pending or threatened in writing (other than routine claims for benefits arising in the ordinary course of administration); (iv) nothing has occurred with respect to any Purchaser Benefit Plan that has subjected the Purchaser or any Subsidiary to any material penalty under Section 502 of ERISA or Section 4975 of the Code; and (v) all contributions and premiums due through the Closing Date have been made in all material respects as required under ERISA or have been fully accrued in all material respects on the Purchaser Financials. (v) No Purchaser Benefit Plan is, and neither the Purchaser or any Subsidiary or any of their respective ERISA Affiliates sponsors, maintains, contributes to, is required to contribute to, or otherwise has or could reasonably be expected to have any current or contingent Liability under or with respect to, a “defined benefit plan” (as defined in Section 414(j) of the Code), a “multiemployer plan” (as defined in Section 3(37) of ERISA) or a “multiple employer plan” (as described in Section 413(c) of the Code) or is otherwise subject to Title IV of ERISA or Section 412 of the Code. To the Purchaser’s Knowledge, no Purchaser Benefit Plan will become a multiple employer plan with respect to any Purchaser Entity immediately after the Closing Date. Neither the Purchaser nor any Subsidiary currently maintains or has ever maintained, or is required currently or has ever been required to contribute to or otherwise participate in, a multiple employer welfare arrangement or voluntary employees’ beneficiary association as defined in Section 501(c)(9) of the Code. For purposes of this Agreement, “ERISA Affiliate” means, with respect to any Person, any Person or entity (whether or not incorporated) that is under common control or treated as one employer under Section 4001(b)(1) of ERISA or Section 414(b), (c), (m) or (o) of the Code.
Appears in 4 contracts
Sources: Agreement and Plan of Merger (Tingo, Inc.), Agreement and Plan of Merger (MICT, Inc.), Agreement and Plan of Merger (MICT, Inc.)
Benefit Plans. (i) Set forth on Schedule 3.19(a4.19(a) is a true and complete list of each material Benefit Plan of the Purchaser and its Subsidiaries a Target Entity (each, a “Purchaser Company Benefit Plan”). With respect to each Purchaser Company Benefit Plan, there are no funded benefit obligations for which contributions have not been materially made or properly accrued and there are no material unfunded benefit obligations that have not been accounted for by reserves, or otherwise properly footnoted in accordance with GAAP on the Purchaser Seller Financials. Except as set forth on Schedule 3.19(a4.19(a), neither the Purchaser nor any Subsidiary no Target Entity is or has in the past been a member of a “controlled group” for purposes of Section 414(b), (c), (m) or (o) of the Code other than with the Purchaser or another SubsidiaryTarget Entity, nor does the Purchaser or any Subsidiary Target Entity have any Liability with respect to any collectively-bargained for plans, whether or not subject to the provisions of ERISA.
(ii) Each Purchaser Company Benefit Plan in all material respects is and has been operated in compliance with all applicable Laws in all material respects, including ERISA and the Code. Each Purchaser Company Benefit Plan which is intended to be “qualified” within the meaning of Section 401(a) of the Code (i) has been determined by the IRS to be so qualified (or is based on a prototype plan which has received a favorable opinion letter) during the period from its adoption to the date of this Agreement and (ii) is funded through a trust exempt from taxation under Section 501(a) of the Code. To the Knowledge of the PurchaserSeller, no fact exists which could adversely affect the qualified status of such Purchaser Company Benefit Plans or the exempt status of such trusts.
(iii) With respect to each Purchaser Company Benefit Plan, the Purchaser Company has made available to the Seller Purchaser accurate and complete copies, if applicable, of: (i) all Purchaser Company Benefit Plan documents and agreements and related trust agreements or annuity Contracts (including any amendments, modifications or supplements thereto); (ii) all summary plan descriptions and material modifications thereto; (iii) the three (3) most recent Forms 5500, if applicable, and annual report, including all schedules thereto; (iv) the most recent annual and periodic accounting of plan assets; (v) the three (3) most recent nondiscrimination testing reports; (vi) the most recent determination letter received from the IRS, if any; (vii) the most recent actuarial valuation; and (viii) all material written communications between the Purchaser a Target Entity or any Subsidiary or any Purchaser Company Benefit Plan and any Governmental Authority and relating to a Purchaser Company Benefit Plan within six (6) years preceding the date of this Agreement.
(iv) With respect to each Purchaser Company Benefit Plan: (i) such Purchaser Company Benefit Plan has been administered and enforced in all material respects in accordance with its terms, the Code and ERISA; (ii) neither the Purchaser nor any Subsidiary no Target Entity nor any employee, officer or director thereof that is a fiduciary (under ERISA) with respect to such Purchaser Company Benefit Plan has breached any of its fiduciary responsibilities, obligations or duties imposed on it by ERISA; (iii) no Action is pending or threatened in writing (other than routine claims for benefits arising in the ordinary course of administration); (iv) nothing has occurred with respect to any Purchaser Company Benefit Plan that has subjected the Purchaser or any Subsidiary Target Entity to any material penalty under Section 502 of ERISA or Section 4975 of the Code; and (v) all contributions and premiums due through the Closing Date have been made in all material respects as required under ERISA or have been fully accrued in all material respects on the Purchaser Seller Financials.
(v) No Purchaser Company Benefit Plan is, and neither the Purchaser or any Subsidiary no Target Entity or any of their its respective ERISA Affiliates sponsors, maintains, contributes to, is required to contribute to, or otherwise has or could reasonably be expected to have any current or contingent Liability under or with respect to, a “defined benefit plan” (as defined in Section 414(j) of the Code), a “multiemployer plan” (as defined in Section 3(37) of ERISA) or a “multiple employer plan” (as described in Section 413(c) of the Code) or is otherwise subject to Title IV of ERISA or Section 412 of the Code. To the PurchaserSeller’s Knowledge, no Purchaser Company Benefit Plan will become a multiple employer plan with respect to any Purchaser Target Entity immediately after the Closing Date. Neither the Purchaser nor any Subsidiary No Target Entity currently maintains or has ever maintained, or is required currently or has ever been required to contribute to or otherwise participate in, a multiple employer welfare arrangement or voluntary employees’ beneficiary association as defined in Section 501(c)(9) of the Code. For purposes of this Agreement, “ERISA Affiliate” means, .
(vi) There is no arrangement under any Company Benefit Plan with respect to any Person, employee that would result in the payment of any Person amount that by operation of Sections 280G or entity (whether or not incorporated) that is under common control or treated as one employer under Section 4001(b)(1162(m) of the Code would not be deductible by the Target Entities and no arrangement exists pursuant to which a Target Entity will be required to “gross up” or otherwise compensate any person because of the imposition of any excise tax on a payment to such person.
(vii) With respect to each Company Benefit Plan which is a “welfare plan” (as described in Section 3(1) of ERISA): (i) no such plan provides medical or death benefits with respect to current or former employees of a Target Entity beyond their termination of employment (other than coverage mandated by Law, which is paid solely by such employees); and (ii) there are no reserves, assets, surplus or prepaid premiums under any such plan. Each Target Entity has complied with the provisions of Section 601 et seq. of ERISA or and Section 414(b), (c), (m) or (o) 4980B of the Code.
(viii) Except as set forth on Schedule 4.19(h), the consummation of the transactions contemplated by this Agreement and the Ancillary Documents will not: (i) entitle any individual to severance pay, unemployment compensation or other benefits or compensation; or (ii) accelerate the time of payment or vesting, or increase the amount of any compensation due, or in respect of, any individual. No Target Entity 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.
(ix) Each Company Benefit Plan that constitutes, in any part, a “nonqualified deferred compensation plan” (as defined in Section 409A of the Code) is listed on Schedule 4.19(i) and has been, in all material respects, in documentary and operational compliance with Section 409A of the Code and all applicable IRS guidance promulgated thereunder. There is no Contract or plan to which any Target Entity is a party or by which it is bound to compensate any employee, consultant or director for penalty taxes incurred pursuant to Section 409A of the Code.
Appears in 4 contracts
Sources: Agreement and Plan of Merger (Tingo, Inc.), Agreement and Plan of Merger (MICT, Inc.), Agreement and Plan of Merger (MICT, Inc.)
Benefit Plans. (ia) Set forth on Schedule 3.19(a3.18(a) is a true and complete list of each material Benefit Plan of the Purchaser and its Subsidiaries Company (each, a “Purchaser Company Benefit Plan”). With respect to each Purchaser Company Benefit Plan, there are no funded benefit obligations for which contributions have not been materially made or properly accrued and there are no material unfunded benefit obligations that have not been accounted for by reserves, or otherwise properly footnoted in accordance with GAAP on the Purchaser Company Financials. Except as set forth on Schedule 3.19(a), neither the Purchaser The Company is not nor any Subsidiary or has in the past been a member of a “controlled group” for purposes of Section 414(b), (c), (m) or (o) of the Code other than with the Purchaser or another SubsidiaryCode, nor does the Purchaser or any Subsidiary Company have any Liability with respect to any collectively-bargained for plans, whether or not subject to the provisions of ERISA. No statement, either written or oral, has been made by the Company to any Person with regard to any Company Benefit Plan that was not in accordance with the Company Benefit Plan in any material respect.
(iib) Each Purchaser Company Benefit Plan in all material respects is and has been operated at all times in compliance with all applicable Laws in all material respects, including ERISA and the Code. Each Purchaser Company Benefit Plan which is intended to be “qualified” within the meaning of Section 401(a) of the Code (i) has been determined by the IRS to be so qualified (or is based on a prototype plan which has received a favorable opinion letter) during the period from its adoption to the date of this Agreement and (ii) is funded through a its related trust has been determined to be exempt from taxation under Section 501(a) of the CodeCode or the Company have requested an initial favorable IRS determination of qualification and/or exemption within the period permitted by applicable Law. To the Knowledge of the Purchaser, no No fact exists which could adversely affect the qualified status of such Purchaser Company Benefit Plans or the exempt status of such trusts.
(iiic) With respect to each Purchaser Benefit Plan, the Purchaser has made available to the Seller accurate and complete copies, if applicable, of: (i) all Purchaser Benefit Plan documents and agreements and related trust agreements or annuity Contracts (including any amendments, modifications or supplements thereto); (ii) all summary plan descriptions and material modifications thereto; (iii) the three (3) most recent Forms 5500, if applicable, and annual report, including all schedules thereto; (iv) the most recent annual and periodic accounting of plan assets; (v) the three (3) most recent nondiscrimination testing reports; (vi) the most recent determination letter received from the IRS, if any; (vii) the most recent actuarial valuation; and (viii) all material written communications between the Purchaser or any Subsidiary or any Purchaser Benefit Plan and any Governmental Authority and relating to a Purchaser Benefit Plan within six (6) years preceding the date of this Agreement.
(iv) With respect to each Purchaser Company Benefit Plan: (i) such Purchaser Company Benefit Plan has been administered and enforced in all material respects in accordance with its terms, the Code and ERISA; (ii) neither the Purchaser nor any Subsidiary nor any employee, officer or director thereof that is a no breach of fiduciary (under ERISA) with respect to such Purchaser Benefit Plan duty has breached any of its fiduciary responsibilities, obligations or duties imposed on it by ERISAoccurred; (iii) no Action is pending pending, or to the Company’s Knowledge, threatened in writing (other than routine claims for benefits arising in the ordinary course of administration); (iv) nothing has occurred with respect to any Purchaser Benefit Plan that has subjected the Purchaser or any Subsidiary to any material penalty under no prohibited transaction, as defined in Section 502 406 of ERISA or Section 4975 of the Code, has occurred, excluding transactions effected pursuant to a statutory or administration exemption; and (v) all contributions and premiums due through the Closing Date have been made in all material respects as required under ERISA or have been fully accrued in all material respects on the Purchaser Company Financials.
(vd) No Purchaser Company Benefit Plan is, and neither the Purchaser or any Subsidiary or any of their respective ERISA Affiliates sponsors, maintains, contributes to, is required to contribute to, or otherwise has or could reasonably be expected to have any current or contingent Liability under or with respect to, a “defined benefit plan” (as defined in Section 414(j) of the Code), a “multiemployer plan” (as defined in Section 3(37) of ERISA) or a “multiple employer plan” (as described in Section 413(c) of the Code) or is otherwise subject to Title IV of ERISA or Section 412 of the Code, and no Target Company has incurred any Liability or otherwise could have any Liability, contingent or otherwise, under Title IV of ERISA and no condition presently exists that is expected to cause such Liability to be incurred. To the Purchaser’s Knowledge, no Purchaser No Company Benefit Plan will become a multiple employer plan with respect to any Purchaser Entity the Company immediately after the Closing Date. Neither the Purchaser nor any Subsidiary No Target Company currently maintains or has ever maintained, or is required currently or has ever been required to contribute to or otherwise participate in, a multiple employer welfare arrangement or voluntary employees’ beneficiary association as defined in Section 501(c)(9) of the Code. For purposes of this Agreement, “ERISA Affiliate” means, .
(e) There is no arrangement under any Company Benefit Plan with respect to any Personemployee that would result in the payment of any amount that by operation of Sections 280G or 162(m) of the Code would not be deductible by the Company and no arrangement exists pursuant to which the Company will be required to “gross up” or otherwise compensate any person because of the imposition of any excise tax on a payment to such person.
(f) The consummation of the transactions contemplated by this Agreement and the Ancillary Documents will not: (i) entitle any individual to severance pay, unemployment compensation or other benefits or compensation; (ii) accelerate the time of payment or vesting, or increase the amount of any compensation due, or in respect of, any Person individual; or entity (whether iii) result in or satisfy a condition to the payment of compensation that would, in combination with any other payment, result in an “excess parachute payment” within the meaning of Section 280G of the Code. The Company has not incorporated) that is incurred any Liability for any Tax imposed under common control Chapter 43 of the Code or treated as one employer civil liability under Section 4001(b)(1) of ERISA or Section 414(b), (c), (m502(i) or (ol) of ERISA.
(g) Except to the Codeextent required by Section 4980B of the Code or similar state Law, the Company does not provide health or welfare benefits to any former or retired employee or is obligated to provide such benefits to any active employee following such employee’s retirement or other termination of employment or service.
Appears in 3 contracts
Sources: Merger Agreement, Merger Agreement (DatChat, Inc.), Merger Agreement (Spherix Inc)
Benefit Plans. In the Material Employee Jurisdictions all benefit and compensation schemes, plans, funds, contracts, policies, agreements or arrangements (iother than the US Benefit Plans and any schemes, plans, funds, contracts, policies, agreements or arrangements operated by any Governmental Entity) Set forth (A) operated by or on Schedule 3.19(abehalf of a Target Group Company or Business Seller, with respect to Target Company Employees or Target Business Employees or current or former employees or directors of a Target Group Company, (B) is a true and complete list in respect of each material Benefit Plan which any Target Group Company or Business Seller, with respect to Target Company Employees or Target Business Employees, the Seller or any member of the Purchaser and its Subsidiaries Seller’s Group contributes or has contributed or (eachC) in respect of which any Target Group Company or Business Seller, a “Purchaser Benefit Plan”). With with respect to each Purchaser Benefit PlanTarget Company Employees or Target Business Employees, there are no funded benefit obligations for which contributions have has any liability (whether actual or contingent), including, but not been materially made limited to, plans providing Employee Benefits or properly accrued and there are no material unfunded benefit obligations that have not been accounted for by reservesduring periods of sickness or disablement, or otherwise properly footnoted any deferred or incentive compensation, welfare, healthcare, medical, stock or stock-related award plans, including individual pension commitments, “jubilee” pension benefits and retirement and termination indemnity arrangements and, in relation to Switzerland, all plans, funds, contracts, policies, agreements or arrangements providing pension or other benefits on retirement (such schemes, plans, funds, contracts, policies, agreements and arrangements hereinafter being referred to, for each Seller, as “Non-US Benefit Plans”) and the US Benefit Plans have been administered in accordance with GAAP on the Purchaser Financials. Except as set forth on Schedule 3.19(a), neither the Purchaser nor any Subsidiary or has in the past been a member of a “controlled group” for purposes of Section 414(b), (c), (m) or (o) of the Code other than with the Purchaser or another Subsidiary, nor does the Purchaser or any Subsidiary have any Liability with respect to any collectively-bargained for plans, whether or not subject to the provisions of ERISA.
(ii) Each Purchaser Benefit Plan in all material respects is their terms and has been operated are in compliance with Applicable Law, except for any failures to so administer or be in compliance that, individually and in the aggregate, would not reasonably be expected to have a Material Adverse Effect. All required filings for all applicable Laws in all material respects, including ERISA and the Code. Each Purchaser Benefit Plan which is intended to be “qualified” within the meaning of Section 401(a) of the Code (i) has been determined by the IRS to be so qualified (or is based on a prototype plan which has received a favorable opinion letter) during the period from its adoption to the date of this Agreement and (ii) is funded through a trust exempt from taxation under Section 501(a) of the Code. To the Knowledge of the Purchaser, no fact exists which could adversely affect the qualified status of such Purchaser Benefit Plans or have been made on time and with the exempt status appropriate Governmental Entity, except for any failures to timely file that, individually and in the aggregate, would not reasonably be expected to have a Material Adverse Effect. As of such trusts.
(iii) With respect to each Purchaser Benefit Plan, the Purchaser has made available to the Seller accurate and complete copies, if applicable, of: (i) all Purchaser Benefit Plan documents and agreements and related trust agreements or annuity Contracts (including any amendments, modifications or supplements thereto); (ii) all summary plan descriptions and material modifications thereto; (iii) the three (3) most recent Forms 5500, if applicable, and annual report, including all schedules thereto; (iv) the most recent annual and periodic accounting of plan assets; (v) the three (3) most recent nondiscrimination testing reports; (vi) the most recent determination letter received from the IRS, if any; (vii) the most recent actuarial valuation; and (viii) all material written communications between the Purchaser or any Subsidiary or any Purchaser Benefit Plan and any Governmental Authority and relating to a Purchaser Benefit Plan within six (6) years preceding the date of this Agreement.
(iv) With respect , there is no existing, pending or, to each Purchaser Benefit Plan: (i) such Purchaser Benefit Plan has been administered and enforced in all material respects in accordance with its terms, the Code and ERISA; (ii) neither the Purchaser nor any Subsidiary nor any employee, officer or director thereof that is a fiduciary (under ERISA) with respect to such Purchaser Benefit Plan has breached any of its fiduciary responsibilities, obligations or duties imposed on it by ERISA; (iii) no Action is pending or threatened in writing (other than routine claims for benefits arising in the ordinary course of administration); (iv) nothing has occurred with respect to any Purchaser Benefit Plan that has subjected the Purchaser or any Subsidiary to any material penalty under Section 502 of ERISA or Section 4975 of the Code; and (v) all contributions and premiums due through the Closing Date have been made in all material respects as required under ERISA or have been fully accrued in all material respects on the Purchaser Financials.
(v) No Purchaser Benefit Plan is, and neither the Purchaser or any Subsidiary or any of their respective ERISA Affiliates sponsors, maintains, contributes to, is required to contribute to, or otherwise has or could reasonably be expected to have any current or contingent Liability under or with respect to, a “defined benefit plan” (as defined in Section 414(j) of the Code), a “multiemployer plan” (as defined in Section 3(37) of ERISA) or a “multiple employer plan” (as described in Section 413(c) of the Code) or is otherwise subject to Title IV of ERISA or Section 412 of the Code. To the PurchaserSeller’s Knowledge, no Purchaser threatened material litigation, claim or other dispute relating to the Benefit Plan will become a multiple employer plan with respect to any Purchaser Entity immediately after the Closing Date. Neither the Purchaser nor any Subsidiary currently maintains or has ever maintained, or is required currently or has ever been required to contribute to or otherwise participate in, a multiple employer welfare arrangement or voluntary employees’ beneficiary association as defined in Section 501(c)(9) of the Code. For purposes of this Agreement, “ERISA Affiliate” means, with respect to any Person, any Person or entity (whether or not incorporated) that is under common control or treated as one employer under Section 4001(b)(1) of ERISA or Section 414(b), (c), (m) or (o) of the CodePlans.
Appears in 3 contracts
Sources: Contribution Agreement (Glaxosmithkline PLC), Contribution Agreement (Novartis Ag), Contribution Agreement (Novartis Ag)
Benefit Plans. (ia) Set The Company Disclosure Letter sets forth on Schedule 3.19(a) is a true complete and complete correct list of each material Benefit Plan all employee benefit plans, as defined in Section 3(3) of the Purchaser and its Subsidiaries Employee Retirement Income Security Act of 1974, as amended (each, a “Purchaser Benefit PlanERISA”). , and all employment, compensation, bonus, stock option, stock purchase, restricted stock, incentive, deferred compensation, profit sharing, retiree medical or life insurance, split dollar insurance, supplemental retirement, severance, change of control, loans or other benefit plans, programs, arrangements or fringe benefits, in each case, which are provided, maintained, contributed to or sponsored by the Company, or for which the Company has any liability, contingent or otherwise (collectively, the “Company Benefit Plans”).
(b) With respect to each Purchaser Company Benefit Plan, there are no funded benefit obligations for which contributions the Company has furnished Parent with a complete and accurate copy of the plan document or other governing contract. The Company Benefit Plans have not been materially made or properly accrued operated and there are no material unfunded benefit obligations that have not been accounted for by reserves, or otherwise properly footnoted administered in accordance with GAAP on their terms and the Purchaser Financials. Except as set forth on Schedule 3.19(a), neither the Purchaser nor any Subsidiary or has in the past been a member of a “controlled group” for purposes of Section 414(b), (c), (m) or (o) applicable requirements of the Code other than with and applicable Law. There are no pending or, to the Purchaser knowledge of the Company, threatened suits, audits, examinations, actions, litigation or another Subsidiary, nor does claims (excluding claims for benefits incurred in the Purchaser or any Subsidiary have any Liability ordinary course) with respect to any collectively-bargained for plans, whether or not subject of the Company Benefit Plans which could reasonably be expected to the provisions of ERISAresult in a Company Material Adverse Effect.
(iic) Each Purchaser No Company Benefit Plan in all material respects is and has been operated in compliance with all applicable Laws in all material respects, including ERISA and the Code. Each Purchaser Benefit Plan which is intended to be “qualified” within the meaning of Section 401(a) of the Code (i) has been determined by the IRS to be so qualified (or is based on a prototype plan which has received a favorable opinion letter) during the period from its adoption to the date of this Agreement and (ii) is funded through a trust exempt from taxation under Section 501(a) of the Code. To the Knowledge of the Purchaser, no fact exists which could adversely affect the qualified status of such Purchaser Benefit Plans or the exempt status of such trusts.
(iii) With respect to each Purchaser Benefit Plan, the Purchaser has made available to the Seller accurate and complete copies, if applicable, of: (i) all Purchaser Benefit Plan documents and agreements and related trust agreements or annuity Contracts (including any amendments, modifications or supplements thereto); (ii) all summary plan descriptions and material modifications thereto; (iii) the three (3) most recent Forms 5500, if applicable, and annual report, including all schedules thereto; (iv) the most recent annual and periodic accounting of plan assets; (v) the three (3) most recent nondiscrimination testing reports; (vi) the most recent determination letter received from the IRS, if any; (vii) the most recent actuarial valuation; and (viii) all material written communications between the Purchaser or any Subsidiary or any Purchaser Benefit Plan and any Governmental Authority and relating to a Purchaser Benefit Plan within six (6) years preceding the date of this Agreement.
(iv) With respect to each Purchaser Benefit Plan: (i) such Purchaser Benefit Plan has been administered and enforced in all material respects in accordance with its terms, the Code and ERISA; (ii) neither the Purchaser nor any Subsidiary nor any employee, officer or director thereof that is a fiduciary (under ERISA) with respect to such Purchaser Benefit Plan has breached any of its fiduciary responsibilities, obligations or duties imposed on it by ERISA; (iii) no Action is pending or threatened in writing (other than routine claims for benefits arising in the ordinary course of administration); (iv) nothing has occurred with respect to any Purchaser Benefit Plan that has subjected the Purchaser or any Subsidiary to any material penalty under Section 502 of ERISA or Section 4975 of the Code; and (v) all contributions and premiums due through the Closing Date have been made in all material respects as required under ERISA or have been fully accrued in all material respects on the Purchaser Financials.
(v) No Purchaser Benefit Plan is, and neither the Purchaser or any Subsidiary or any of their respective ERISA Affiliates sponsors, maintains, contributes to, is required to contribute to, or otherwise has or could reasonably be expected to have any current or contingent Liability under or with respect to, a “defined benefit plan” (as defined in Section 414(j) of the Code), a “multiemployer plan” (as defined in Section 3(37) of ERISA) or a “multiple employer plan” (as described in Section 413(c) of the Code) or is otherwise subject to Title IV of ERISA or Section 412 of the Code. To the Purchaser’s Knowledge, no Purchaser Benefit Plan will become a multiple employer plan with respect to any Purchaser Entity immediately after the Closing Date. Neither the Purchaser Company nor any Subsidiary currently maintains trade or has ever maintained, or is required currently or has ever been required to contribute to or otherwise participate in, a multiple employer welfare arrangement or voluntary employees’ beneficiary association as defined in Section 501(c)(9) of the Code. For purposes of this Agreement, “ERISA Affiliate” means, with respect to any Person, any Person or entity business (whether or not incorporated) that which is under common control or has ever been treated as one a single employer with the Company under Section 4001(b)(1) of ERISA or Section 414(b), (c), (m) or (o) of the Code, has incurred any liability under Title IV of ERISA or Section 412 of the Code.
(d) The execution and delivery by the Company of each Transaction Agreement to which it is a party do not, and the consummation of the Merger and the other Transactions and compliance with the terms hereof will not (i) entitle any employee, officer or member of the Company or USPGI to any severance pay, bonus payment, finders fee, “change of control” payment or similar payment, (ii) accelerate the time of payment or vesting or trigger any payment or funding (through a grantor trust or otherwise) of compensation or benefits under, increase the amount payable or trigger any other material obligation pursuant to, any Company Benefit Plan or (iii) result in any breach or violation of, or a default under, any Company Benefit Plan.
Appears in 3 contracts
Sources: Agreement and Plan of Merger (Millstream Acquisition Corp), Agreement and Plan of Merger (GRH Holdings, L.L.C.), Agreement and Plan of Merger (RGGPLS Holding, Inc.)
Benefit Plans. (ia) Set forth on Schedule 3.19(a) is a true and complete list of each material Benefit Plan of the Purchaser and its Subsidiaries (each, a “Purchaser Benefit Plan”). With respect to each Purchaser Benefit Plan, there are no funded benefit obligations for which contributions have not been materially made or properly accrued and there are no material unfunded benefit obligations that have not been accounted for by reserves, or otherwise properly footnoted in accordance with GAAP on the Purchaser Financials. Except as set forth on Schedule 3.19(a), neither the Purchaser nor any Subsidiary or has in the past been a member of a “controlled group” for purposes of Section 414(b), (c), (m) or (o) of the Code other than with the Purchaser or another Subsidiary, nor does the Purchaser or any Subsidiary have any Liability with respect to any collectively-bargained for plans, whether or not subject to the provisions of ERISA.
(iib) Each Purchaser Benefit Plan in all material respects is and has been operated in compliance with all applicable Laws in all material respects, including ERISA and the Code. Each Purchaser Benefit Plan which is intended to be “qualified” within the meaning of Section 401(a) of the Code (i) has been determined by the IRS to be so qualified (or is based on a prototype plan which has received a favorable opinion letter) during the period from its adoption to the date of this Agreement and (ii) is funded through a trust exempt from taxation under Section 501(a) of the Code. To the Knowledge of the Purchaser, no fact exists which could adversely affect the qualified status of such Purchaser Benefit Plans or the exempt status of such trusts.
(iiic) With respect to each Purchaser Benefit Plan, the Purchaser has made available to the Seller Company accurate and complete copies, if applicable, of: (i) all Purchaser Benefit Plan documents and agreements and related trust agreements or annuity Contracts (including any amendments, modifications or supplements thereto); (ii) all summary plan descriptions and material modifications thereto; (iii) the three (3) most recent Forms 5500, if applicable, and annual report, including all schedules thereto; (iv) the most recent annual and periodic accounting of plan assets; (v) the three (3) most recent nondiscrimination testing reports; (vi) the most recent determination letter received from the IRS, if any; (vii) the most recent actuarial valuation; and (viii) all material written communications between the Purchaser or any Subsidiary or any Purchaser Benefit Plan and any Governmental Authority and relating to a Purchaser Benefit Plan within six (6) years preceding the date of this Agreement.
(ivd) With respect to each Purchaser Benefit Plan: (i) such Purchaser Benefit Plan has been administered and enforced in all material respects in accordance with its terms, the Code and ERISA; (ii) neither the Purchaser nor any Subsidiary nor any employee, officer or director thereof that is a fiduciary (under ERISA) with respect to such Purchaser Benefit Plan has breached any of its fiduciary responsibilities, obligations or duties imposed on it by ERISA; (iii) no Action is pending or threatened in writing (other than routine claims for benefits arising in the ordinary course of administration); (iv) nothing has occurred with respect to any Purchaser Benefit Plan that has subjected the Purchaser or any Subsidiary to any material penalty under Section 502 of ERISA or Section 4975 of the Code; and (v) all contributions and premiums due through the Closing Date have been made in all material respects as required under ERISA or have been fully accrued in all material respects on the Purchaser Financials.
(ve) No Purchaser Benefit Plan is, and neither the Purchaser or any Subsidiary or any of their respective ERISA Affiliates sponsors, maintains, contributes to, is required to contribute to, or otherwise has or could reasonably be expected to have any current or contingent Liability under or with respect to, a “defined benefit plan” (as defined in Section 414(j) of the Code), a “multiemployer plan” (as defined in Section 3(37) of ERISA) or a “multiple employer plan” (as described in Section 413(c) of the Code) or is otherwise subject to Title IV of ERISA or Section 412 of the Code. To the Purchaser’s Knowledge, no Purchaser Benefit Plan will become a multiple employer plan with respect to any Purchaser Entity Target Company immediately after the Closing Date. Neither the Purchaser nor any Subsidiary currently maintains or has ever maintained, or is required currently or has ever been required to contribute to or otherwise participate in, a multiple employer welfare arrangement or voluntary employees’ beneficiary association as defined in Section 501(c)(9) of the Code. For purposes of this Agreement, “ERISA Affiliate” means, with respect to any Person, any Person or entity (whether or not incorporated) that is under common control or treated as one employer under Section 4001(b)(1) of ERISA or Section 414(b), (c), (m) or (o) of the Code.
Appears in 3 contracts
Sources: Agreement and Plan of Merger (MICT, Inc.), Merger Agreement (MICT, Inc.), Merger Agreement (Tingo, Inc.)
Benefit Plans. (i) Set forth on Schedule 3.19(a3.1(l)(i) is contains a true and complete list of each material Benefit Plan all “employee benefit plans” (as defined in Section 3(3) of ERISA) and all other bonus, stock option, deferred and incentive compensation plans and programs maintained or contributed to by the MMHC Entities for the benefit of its employees or former employees (all of the Purchaser and its Subsidiaries (each, a foregoing being referred to herein as the “Purchaser MMHC Benefit PlanPlans”). With respect to each Purchaser Benefit Plan, there are no funded benefit obligations for which contributions have not been materially made or properly accrued and there are no material unfunded benefit obligations that have not been accounted for by reserves, or otherwise properly footnoted in accordance with GAAP on the Purchaser Financials. .
(ii) Except as set forth on Schedule 3.19(a), neither the Purchaser nor any Subsidiary or has in the past been a member of a “controlled group” for purposes of Section 414(b3.1(l)(ii), (c), (mi) or (o) of the Code other than with the Purchaser or another Subsidiary, nor does the Purchaser or any Subsidiary have any Liability with respect to any collectively-bargained for plans, whether or not subject to the provisions of ERISA.
(ii) Each Purchaser each MMHC Benefit Plan in all material respects is and has been operated and administered pursuant to its terms and in material compliance with all applicable Laws in all material respectsERISA, including ERISA and the Code. Each Purchaser Benefit Plan which is intended to be “qualified” within the meaning of Section 401(a) of the Code (i) has been determined by the IRS to be so qualified (or is based on a prototype plan which has received a favorable opinion letter) during the period from its adoption to the date of this Agreement , and (ii) is funded through a trust exempt from taxation under Section 501(a) of the Code. To the Knowledge of the Purchaser, no fact exists which could adversely affect the qualified status of such Purchaser Benefit Plans or the exempt status of such trusts.
(iii) With respect to each Purchaser Benefit Plan, the Purchaser has made available to the Seller accurate and complete copies, if applicable, of: (i) all Purchaser Benefit Plan documents and agreements and related trust agreements or annuity Contracts (including any amendments, modifications or supplements thereto)Applicable Laws; (ii) all summary plan descriptions contributions due and material modifications thereto; (iii) payable by an MMHC Entity on or before the three (3) most recent Forms 5500, if applicable, and annual report, including all schedules thereto; (iv) the most recent annual and periodic accounting Closing Date in respect of plan assets; (v) the three (3) most recent nondiscrimination testing reports; (vi) the most recent determination letter received from the IRS, if any; (vii) the most recent actuarial valuation; and (viii) all material written communications between the Purchaser or any Subsidiary or any Purchaser MMHC Benefit Plan have been made in full and any Governmental Authority and relating to a Purchaser proper form, or adequate accruals have been provided for in the Financial Statements for all other contributions or amounts in respect of MMHC Benefit Plan within six (6) years preceding Plans for periods ending on or before the date of this Agreement.
(iv) With respect to each Purchaser Benefit Plan: (i) such Purchaser Benefit Plan has been administered and enforced in all material respects in accordance with its terms, the Code and ERISA; (ii) neither the Purchaser nor any Subsidiary nor any employee, officer or director thereof that is a fiduciary (under ERISA) with respect to such Purchaser Benefit Plan has breached any of its fiduciary responsibilities, obligations or duties imposed on it by ERISAClosing Date; (iii) no Action is pending MMHC Entity has breached the fiduciary rules of ERISA or threatened engaged in writing a prohibited transaction with respect to any MMHC Benefit Plan which would subject such MMHC Entity to any Tax or penalty imposed under Sections 4975 of the Code or Section 502 (other than routine claims for benefits arising in the ordinary course i), (j) or (l) of administration)ERISA; (iv) nothing has occurred with respect to any Purchaser no MMHC Benefit Plan that has subjected the Purchaser or any Subsidiary subject to any material penalty under Section 502 of ERISA or Section 4975 of the Code; and Part (v) all contributions and premiums due through the Closing Date have been made in all material respects as required under ERISA or have been fully accrued in all material respects on the Purchaser Financials.
(v) No Purchaser Benefit Plan is, and neither the Purchaser or any Subsidiary or any of their respective ERISA Affiliates sponsors, maintains, contributes to, is required to contribute to, or otherwise has or could reasonably be expected to have any current or contingent Liability under or with respect to, a “defined benefit plan” (as defined in Section 414(j3) of the Code), a “multiemployer plan” (as defined in Section 3(37) Subtitle B of ERISA) or a “multiple employer plan” (as described in Section 413(c) of the Code) or is otherwise subject to Title IV I of ERISA or Section 412 of the Code has incurred any “accumulated funding deficiency” (as defined in Section 412(a) of the Code. To ), whether or not waived; (v) no “reportable event” (within the Purchaser’s Knowledge, no Purchaser Benefit Plan will become a multiple employer plan meaning of Section 4043 of ERISA) has occurred with respect to any Purchaser Entity immediately after MMHC Benefit Plan; and (vi) no Proceedings (other than routine benefit claims) are pending or, to the Closing Date. Neither the Purchaser nor knowledge of MMHC, threatened against or relating to any Subsidiary currently maintains or has ever maintainedMMHC Benefit Plan, or is required currently or has ever been required to contribute to or otherwise participate in, a multiple employer welfare arrangement or voluntary employees’ beneficiary association as defined in Section 501(c)(9any fiduciary thereof.
(iii) True and complete copies of the Codefollowing documents, as they have been amended to the date hereof, relating to the MMHC Benefit Plans, have been made available to Otelco: (A) all MMHC Benefit Plan documents and (B) the Form 5500, 5500-C or 5500-R for each MMHC Benefit Plan for the two most recent plan years. For purposes This Section 3.1(l)(iii) contains the sole and exclusive representations and warranties of this Agreement, “ERISA Affiliate” means, MMHC with respect to any Person, any Person or entity (whether or not incorporated) that is under common control or treated as one employer under Section 4001(b)(1) of ERISA or Section 414(b), (c), (m) or (o) of the CodeMMHC Benefit Plans.
Appears in 3 contracts
Sources: Merger Agreement (Otelco Telecommunications LLC), Merger Agreement (Brindlee Mountain Telephone Co), Merger Agreement (Otelco Inc.)
Benefit Plans. (ia) Set forth on Schedule 3.19(a4.19(a) is a true and complete list of each material Benefit Plan of the Purchaser and its Subsidiaries Company (each, a “Purchaser Company Benefit Plan”). With respect to each Purchaser Company Benefit Plan, there are no funded benefit obligations for which contributions have not been materially made or properly accrued and there are no material unfunded benefit obligations that have not been accounted for by reserves, or otherwise properly footnoted in accordance with GAAP on the Purchaser Company Financials. Except as set forth on Schedule 3.19(a), neither the Purchaser nor any Subsidiary or The Company is not and has not in the past been a member of a “controlled group” for purposes of Section 414(b), (c), (m) or (o) of the Code other than with the Purchaser or another SubsidiaryCode, nor does the Purchaser or any Subsidiary Company have any Liability with respect to any collectively-bargained for plans, whether or not subject to the provisions of ERISA. No statement, either written or oral, has been made by the Company to any Person with regard to any Company Benefit Plan that was not in accordance with the Company Benefit Plan in any material respect.
(iib) Each Purchaser Company Benefit Plan in all material respects is and has been operated at all times in compliance with all applicable Laws in all material respects, including ERISA and the Code. Each Purchaser Company Benefit Plan which is intended to be “qualified” within the meaning of Section 401(a) of the Code (i) has been determined by the IRS to be so qualified (or is based on a prototype plan which has received a favorable opinion letter) during the period from its adoption to the date of this Agreement and (ii) is funded through a its related trust has been determined to be exempt from taxation under Section 501(a) of the CodeCode or the Company have requested an initial favorable IRS determination of qualification and/or exemption within the period permitted by applicable Law. To the Knowledge of the Purchaser, no No fact exists which could adversely affect the qualified status of such Purchaser Company Benefit Plans or the exempt status of such trusts.
(iiic) With respect to each Purchaser Company Benefit PlanPlan which covers any current or former officer, director, consultant or employee (or beneficiary thereof) of the Company, the Company has provided to Purchaser has made available to the Seller accurate and complete copies, if applicable, of: (i) all Purchaser Company Benefit Plan documents texts and agreements and related trust agreements or annuity Contracts (including any amendments, modifications or supplements thereto); (ii) all summary plan descriptions and material modifications thereto; (iii) the three (3) most recent Forms 5500, if applicable, and annual report, including all schedules thereto; (iv) the most recent annual and periodic accounting of plan assets; (v) the three (3) most recent nondiscrimination testing reports; (vi) the most recent determination letter received from the IRS, if any; (vii) the most recent actuarial valuation; and (viii) all material written communications between the Purchaser or any Subsidiary or any Purchaser Benefit Plan and with any Governmental Authority and relating to a Purchaser Benefit Plan within six (6) years preceding the date of this AgreementAuthority.
(ivd) With respect to each Purchaser Company Benefit Plan: (i) such Purchaser Company Benefit Plan has been administered and enforced in all material respects in accordance with its terms, the Code and ERISA; (ii) neither the Purchaser nor any Subsidiary nor any employee, officer or director thereof that is a no breach of fiduciary (under ERISA) with respect to such Purchaser Benefit Plan duty has breached any of its fiduciary responsibilities, obligations or duties imposed on it by ERISAoccurred; (iii) no Action is pending pending, or to the Company’s Knowledge, threatened in writing (other than routine claims for benefits arising in the ordinary course of administration); (iv) nothing has occurred with respect to any Purchaser Benefit Plan that has subjected the Purchaser or any Subsidiary to any material penalty under no prohibited transaction, as defined in Section 502 406 of ERISA or Section 4975 of the Code, has occurred, excluding transactions effected pursuant to a statutory or administration exemption; and (v) all contributions and premiums due through the Closing Date have been made in all material respects as required under ERISA or have been fully accrued in all material respects on the Purchaser Company Financials.
(ve) No Purchaser Company Benefit Plan is, and neither the Purchaser or any Subsidiary or any of their respective ERISA Affiliates sponsors, maintains, contributes to, is required to contribute to, or otherwise has or could reasonably be expected to have any current or contingent Liability under or with respect to, a “defined benefit plan” (as defined in Section 414(j) of the Code), a “multiemployer plan” (as defined in Section 3(37) of ERISA) or a “multiple employer plan” (as described in Section 413(c) of the Code) or is otherwise subject to Title IV of ERISA or Section 412 of the Code, and the Company has not incurred any Liability or otherwise could have any Liability, contingent or otherwise, under Title IV of ERISA and no condition presently exists that is expected to cause such Liability to be incurred. To the Purchaser’s Knowledge, no Purchaser No Company Benefit Plan will become a multiple employer plan with respect to any Purchaser Entity the Company immediately after the Closing Date. Neither the Purchaser The Company does not currently maintain nor any Subsidiary currently maintains or has ever maintained, or nor is required currently or has ever been required to contribute to or otherwise participate in, a multiple employer welfare arrangement or voluntary employees’ beneficiary association as defined in Section 501(c)(9) of the Code. For purposes of this Agreement, “ERISA Affiliate” means, .
(f) There is no arrangement under any Company Benefit Plan with respect to any Personemployee that would result in the payment of any amount that by operation of Sections 280G or 162(m) of the Code would not be deductible by the Company and no arrangement exists pursuant to which the Company will be required to “gross up” or otherwise compensate any person because of the imposition of any excise tax on a payment to such person.
(g) With respect to each Company Benefit Plan which is a “welfare plan” (as described in Section 3(1) of ERISA): (i) no such plan provides medical or death benefits with respect to current or former employees of the Company beyond their termination of employment (other than coverage mandated by Law, which is paid solely by such employees); and (ii) there are no reserves, assets, surplus or prepaid premiums under any such plan. The Company has complied with the provisions of Section 601 et seq. of ERISA and Section 4980B of the Code.
(h) The consummation of the transactions contemplated by this Agreement and the Ancillary Documents will not: (i) entitle any individual to severance pay, unemployment compensation or other benefits or compensation; (ii) accelerate the time of payment or vesting, or increase the amount of any compensation due, or in respect of, any Person individual; or entity (whether iii) result in or satisfy a condition to the payment of compensation that would, in combination with any other payment, result in an “excess parachute payment” within the meaning of Section 280G of the Code. The Company has not incorporated) that is incurred any Liability for any Tax imposed under common control Chapter 43 of the Code or treated as one employer civil liability under Section 4001(b)(1) of ERISA or Section 414(b), (c), (m502(i) or (ol) of ERISA.
(i) Except to the extent required by Section 4980B of the Code or similar state Law, the Company does not provide health or welfare benefits to any former or retired employee nor is obligated to provide such benefits to any active employee following such employee’s retirement or other termination of employment or service.
(j) All Company Benefit Plans can be terminated at any time as of or after the Closing Date without resulting in any Liability to the Surviving Corporation or Purchaser or their respective Affiliates for any additional contributions, penalties, premiums, fees, fines, excise taxes or any other charges or liabilities.
(k) Each Company Benefit Plan that is subject to Section 409A of the Code (each, a “Section 409A Plan”) as of the Closing Date is indicated as such on Schedule 4.19(k). No equity-based awards have been issued or granted by the Company that are, or are subject to, a Section 409A Plan. Each Section 409A Plan has been administered in compliance, and is in documentary compliance, with the applicable provisions of Section 409A of the Code, the regulations thereunder and other official guidance issued thereunder. The Company has no obligation to any employee or other service provider with respect to any Section 409A Plan that may be subject to any Tax under Section 409A of the Code. No payment to be made under any Section 409A Plan is, or to the Knowledge of the Company will be, subject to the penalties of Section 409A(a)(1) of the Code. There is no Contract or plan to which the Company is a party or by which it is bound to compensate any employee, consultant or director for penalty taxes paid pursuant to Section 409A of the Code.
Appears in 2 contracts
Sources: Merger Agreement (Megalith Financial Acquisition Corp), Merger Agreement (Customers Bancorp, Inc.)
Benefit Plans. (i) Set forth on Schedule 3.19(a) is For a true and complete list period of each material Benefit Plan not less than one year after the Effective Time, Parent shall provide, or cause to be provided, to those persons who were employees of the Purchaser and Company or its Subsidiaries immediately prior to the Effective Time and who remain employees of the Surviving Corporation or its Subsidiaries or become employees of Parent following the Effective Time (each"CONTINUING EMPLOYEES") employee benefits (other than Parent Option Plans and the Parent ESPP) no less favorable in the aggregate than those currently provided to employees of the Company. Continuing Employees will be eligible to participate in Parent Option Plans and the Parent ESPP in accordance with the terms and conditions of such plans. As promptly as reasonably practicable after the Effective Time, a “Purchaser Continuing Employees shall be eligible to participate in (1) Parent's employee benefit plans, programs, policies and arrangements, including any severance plan, medical plan, dental plan, life insurance plan, vacation program and disability plan, to the extent permitted by the terms of the applicable plans, programs, policies and arrangements or (2) such Company Benefit Plan”Arrangements, including, but not limited to, any agreements, programs, policies or other programs sponsored by or maintained by the Company or any of its Subsidiaries, that are continued by the Surviving Corporation or any of its Subsidiaries following the Closing Date, or which are assumed by Parent (for the purposes of this Section 5.12(d) only, clauses (1) and (2) taken together, the "PARENT BENEFIT PLANS"). Continuing Employees shall, to the extent permitted by Applicable Law receive full credit for purposes of eligibility, vesting, level of benefits (but not benefit accrual) under the Parent Benefit Plans in which such Continuing Employees participate for such Continuing Employees' service with the Company, any of its Subsidiaries, and either of their predecessors. With respect to each Purchaser Benefit Planany welfare benefit plans maintained by Parent for the benefit of Continuing Employees on and after the Effective Time, Parent shall (1) cause there are no funded benefit obligations for which contributions have not been materially made to be waived, as required by Applicable Law, any eligibility requirements or properly accrued pre-existing condition limitations and there are no material unfunded benefit obligations that have not been accounted for (2) give effect, in determining any deductible or maximum out-of-pocket limitations, amounts paid by reserves, or otherwise properly footnoted in accordance with GAAP on the Purchaser Financials. Except as set forth on Schedule 3.19(a), neither the Purchaser nor any Subsidiary or has in the past been a member of a “controlled group” for purposes of Section 414(b), (c), (m) or (o) of the Code other than with the Purchaser or another Subsidiary, nor does the Purchaser or any Subsidiary have any Liability such Continuing Employees with respect to any collectively-bargained for planssimilar plans maintained by the Company and its Subsidiaries, whether or not subject to the provisions of ERISA.
(ii) Each Purchaser Benefit Plan in all material respects is terms and has been operated in compliance with all applicable Laws in all material respects, including ERISA and the Code. Each Purchaser Benefit Plan which is intended to be “qualified” within the meaning of Section 401(a) conditions of the Code (i) has been determined applicable welfare benefit plans maintained by the IRS to be so qualified (or is based on a prototype plan which has received a favorable opinion letter) during the period from its adoption to Parent. Depending upon the date of this Agreement and (ii) is funded through a trust exempt from taxation under Section 501(a) the Effective Time relative to the completion of the Code. To then-next ending offer period under the Knowledge Parent ESPP, and upon the relative benefits and costs, Parent will determine in good faith whether to establish a special offering period for Continuing Employees under the Parent ESPP commencing as soon as administratively practicable following the Effective Time and ending immediately prior to the commencement of the Purchaser, no fact exists which could adversely affect next regularly scheduled offering period under the qualified status of such Purchaser Benefit Plans or the exempt status of such trustsParent ESPP.
(iii) With respect to each Purchaser Benefit Plan, the Purchaser has made available to the Seller accurate and complete copies, if applicable, of: (i) all Purchaser Benefit Plan documents and agreements and related trust agreements or annuity Contracts (including any amendments, modifications or supplements thereto); (ii) all summary plan descriptions and material modifications thereto; (iii) the three (3) most recent Forms 5500, if applicable, and annual report, including all schedules thereto; (iv) the most recent annual and periodic accounting of plan assets; (v) the three (3) most recent nondiscrimination testing reports; (vi) the most recent determination letter received from the IRS, if any; (vii) the most recent actuarial valuation; and (viii) all material written communications between the Purchaser or any Subsidiary or any Purchaser Benefit Plan and any Governmental Authority and relating to a Purchaser Benefit Plan within six (6) years preceding the date of this Agreement.
(iv) With respect to each Purchaser Benefit Plan: (i) such Purchaser Benefit Plan has been administered and enforced in all material respects in accordance with its terms, the Code and ERISA; (ii) neither the Purchaser nor any Subsidiary nor any employee, officer or director thereof that is a fiduciary (under ERISA) with respect to such Purchaser Benefit Plan has breached any of its fiduciary responsibilities, obligations or duties imposed on it by ERISA; (iii) no Action is pending or threatened in writing (other than routine claims for benefits arising in the ordinary course of administration); (iv) nothing has occurred with respect to any Purchaser Benefit Plan that has subjected the Purchaser or any Subsidiary to any material penalty under Section 502 of ERISA or Section 4975 of the Code; and (v) all contributions and premiums due through the Closing Date have been made in all material respects as required under ERISA or have been fully accrued in all material respects on the Purchaser Financials.
(v) No Purchaser Benefit Plan is, and neither the Purchaser or any Subsidiary or any of their respective ERISA Affiliates sponsors, maintains, contributes to, is required to contribute to, or otherwise has or could reasonably be expected to have any current or contingent Liability under or with respect to, a “defined benefit plan” (as defined in Section 414(j) of the Code), a “multiemployer plan” (as defined in Section 3(37) of ERISA) or a “multiple employer plan” (as described in Section 413(c) of the Code) or is otherwise subject to Title IV of ERISA or Section 412 of the Code. To the Purchaser’s Knowledge, no Purchaser Benefit Plan will become a multiple employer plan with respect to any Purchaser Entity immediately after the Closing Date. Neither the Purchaser nor any Subsidiary currently maintains or has ever maintained, or is required currently or has ever been required to contribute to or otherwise participate in, a multiple employer welfare arrangement or voluntary employees’ beneficiary association as defined in Section 501(c)(9) of the Code. For purposes of this Agreement, “ERISA Affiliate” means, with respect to any Person, any Person or entity (whether or not incorporated) that is under common control or treated as one employer under Section 4001(b)(1) of ERISA or Section 414(b), (c), (m) or (o) of the Code.
Appears in 2 contracts
Sources: Agreement and Plan of Reorganization (Lau Acquisition Corp), Agreement and Plan of Reorganization (Viisage Technology Inc)
Benefit Plans. (ia) Set forth on Schedule 3.19(a) is a true and complete list of each material Benefit Plan of Neither the Purchaser and its Subsidiaries (each, a “Purchaser Benefit Plan”). With respect to each Purchaser Benefit Plan, there are no funded benefit obligations for which contributions have not been materially made or properly accrued and there are no material unfunded benefit obligations that have not been accounted for by reserves, or otherwise properly footnoted in accordance with GAAP on the Purchaser Financials. Except as set forth on Schedule 3.19(a), neither the Purchaser Company nor any Subsidiary or has in the past been a member of a “controlled group” for purposes of Section 414(b), (c), (m) or (o) of the Code other than with the Purchaser or another Subsidiary, nor does the Purchaser or any Subsidiary have any Liability with respect to any collectively-bargained for plans, whether or not subject to the provisions of ERISA.
(ii) Each Purchaser Benefit Plan in all material respects is and has been operated in compliance with all applicable Laws in all material respects, including ERISA and the Code. Each Purchaser Benefit Plan which is intended to be “qualified” within the meaning of Section 401(a) of the Code (i) has been determined by the IRS to be so qualified (or is based on a prototype plan which has received a favorable opinion letter) during the period from its adoption to the date of this Agreement and (ii) is funded through a trust exempt from taxation under Section 501(a) of the Code. To the Knowledge of the Purchaser, no fact exists which could adversely affect the qualified status of such Purchaser Benefit Plans or the exempt status of such trusts.
(iii) With respect to each Purchaser Benefit Plan, the Purchaser has made available to the Seller accurate and complete copies, if applicable, of: (i) all Purchaser Benefit Plan documents and agreements and related trust agreements or annuity Contracts (including any amendments, modifications or supplements thereto); (ii) all summary plan descriptions and material modifications thereto; (iii) the three (3) most recent Forms 5500, if applicable, and annual report, including all schedules thereto; (iv) the most recent annual and periodic accounting of plan assets; (v) the three (3) most recent nondiscrimination testing reports; (vi) the most recent determination letter received from the IRS, if any; (vii) the most recent actuarial valuation; and (viii) all material written communications between the Purchaser or any Subsidiary or any Purchaser Benefit Plan and any Governmental Authority and relating to a Purchaser Benefit Plan within six (6) years preceding the date of this Agreement.
(iv) With respect to each Purchaser Benefit Plan: (i) such Purchaser Benefit Plan has been administered and enforced in all material respects in accordance with its terms, the Code and ERISA; (ii) neither the Purchaser nor any Subsidiary nor any employee, officer or director thereof that is a fiduciary (under ERISA) with respect to such Purchaser Benefit Plan has breached any of its fiduciary responsibilities, obligations or duties imposed on it by ERISA; (iii) no Action is pending or threatened in writing (other than routine claims for benefits arising in the ordinary course of administration); (iv) nothing has occurred with respect to any Purchaser Benefit Plan that has subjected the Purchaser or any Subsidiary to any material penalty under Section 502 of ERISA or Section 4975 of the Code; and (v) all contributions and premiums due through the Closing Date have been made in all material respects as required under ERISA or have been fully accrued in all material respects on the Purchaser Financials.
(v) No Purchaser Benefit Plan is, and neither the Purchaser or any Subsidiary or any of their respective ERISA Affiliates sponsors, maintains, contributes to, is or has, 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(2) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), including, solely for the purpose of this subsection, a plan excluded from coverage by Section 4(b)(5) of ERISA. Each such Pension Plan presently maintained by the Company or otherwise any Subsidiary is, in all material respects, in compliance with applicable provisions of ERISA, the Code, and other applicable law and the Company or such Subsidiary has performed all of its obligations under such Pension Plan except for such obligations that could not reasonably be expected to have a Company Material Adverse Effect.
(b) Neither the Company nor any Subsidiary sponsors, maintains, contributes to, or has, 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.
(c) Neither the Company nor any Subsidiary sponsors, maintains, or contributes to any "employee welfare benefit plan" ("Welfare Plan"), as such term is defined in Section 3(1) of ERISA, whether insured or otherwise, and any such Welfare Plan presently maintained by the Company or any Subsidiary is, in all material respects, in compliance with the provisions of ERISA, the Code, and all other applicable laws, including, but not limited to, Section 4980B of the Code and the regulations thereunder, and Part 6 of Title I of ERISA. Neither the Company nor any Subsidiary has established or contributed to any "voluntary employees' beneficiary association" within the meaning of Section 501(c)(9) of the Code.
(d) Neither the Company nor any Subsidiary currently maintains or contributes to any oral or written bonus, profit-sharing, compensation (incentive or otherwise), commission, stock option, or other stock-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").
(e) With respect to the Pension Plans, Welfare Plans or Compensation Plans, 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 or any of its Subsidiaries could be subject to any liability under the terms of such Plans (other than the payment of benefits thereunder), ERISA, the Code or any other applicable Law which could reasonably be expected to have any current or contingent Liability under or a Company Material Adverse Effect.
(f) The IRS has issued favorable determination letters with respect toto all Company and Subsidiary Pension Plans that are intended to be qualified under Section 401(a) of the Code. The Company has provided 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 determination letters, current summary plan descriptions, and all employee handbooks or manuals. The Company has provided to Parent (i) copies of all employment agreements with officers of any of the Company, its U.S. Subsidiaries or, to the extent reasonably available, its non-U.S. Subsidiaries (or copies of forms of agreements setting forth representative employment terms and conditions); (ii) copies of all severance, bonus or incentive agreements, programs and policies of any of the Company, any U.S. Subsidiary or, to the extent reasonably available, its non-U.S. Subsidiaries with or relating to any of its employees; and (iii) copies of all plans, programs, agreements and other arrangements of any of the Company, any Subsidiary or, to the extent reasonably available, its non-U.S. Subsidiaries with or relating to any of its employees which contain change in control provisions. With respect to any items that would be described in the immediately preceding sentence but for the fact that such copies relate to non-U.S. Subsidiaries and are not reasonably available to the Company, the Company (i) shall deliver copies thereof to Parent prior to the Effective Time, and (ii) represents and warrants to Parent that such items will not, individually or in the aggregate, be material to the Company and its Subsidiaries.
(g) 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) constitute an event under any Pension Plan, Welfare Plan, Compensation Plan, or other arrangement 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. No amount that could be received (whether in cash or property or the vesting of property) as a “defined benefit plan” 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 Pension Plan, Welfare Plan, or Compensation Plan currently in effect would be an "excess parachute payment" (as such term is defined in Section 414(j280G(b)(1) of the Code), a “multiemployer plan” (as defined in Section 3(37) of ERISA) or a “multiple employer plan” (as described in Section 413(c) of the Code) or is otherwise subject to Title IV of ERISA or Section 412 of the Code. To the Purchaser’s Knowledge, no Purchaser Benefit Plan will become a multiple employer plan with respect to any Purchaser Entity immediately after the Closing Date. Neither the Purchaser nor any Subsidiary currently maintains or has ever maintained, or is required currently or has ever been required to contribute to or otherwise participate in, a multiple employer welfare arrangement or voluntary employees’ beneficiary association as defined in Section 501(c)(9) of the Code. For purposes of this Agreement, “ERISA Affiliate” means, with respect to any Person, any Person or entity (whether or not incorporated) that is under common control or treated as one employer under Section 4001(b)(1) of ERISA or Section 414(b), (c), (m) or (o) of the Code.
Appears in 2 contracts
Sources: Merger Agreement (Sofamor Danek Group Inc), Merger Agreement (Medtronic Inc)
Benefit Plans. (ia) Set forth on Schedule 3.19(a4.19(a) is a true and complete list of each material Benefit Plan of a Target Company as of the Purchaser and its Subsidiaries date hereof (each, a “Purchaser Company Benefit Plan”). With respect to each Purchaser Company Benefit Plan, there are no funded benefit obligations for which contributions have not been materially made or properly accrued and there are no material unfunded benefit obligations that have not been accounted for by reserves, or otherwise properly footnoted in accordance with GAAP on the Purchaser Company Financials, except to the extent that such amount would not, individually or in the aggregate, have or reasonably be expected to have a Material Adverse Effect on, or with respect to, the Purchaser. Except as set forth on Schedule 3.19(a), neither the Purchaser nor any Subsidiary No Target Company is or has in the past been a member of a “controlled group” for purposes of Section 414(b), (c), (m) or (o) of the Code with respect to any person or entity other than with the Purchaser or another SubsidiaryTarget Company, nor does the Purchaser or any Subsidiary Target Company have any Liability with respect to any collectively-bargained for benefit plans, whether or not subject to the provisions of ERISA.
(iib) Each Purchaser Company Benefit Plan in all material respects is and has been operated in compliance with all applicable Laws in all material respectsLaws, including ERISA and the Code, except for any noncompliance that, individually or in the aggregate, have not had and would not reasonably be expected to have a Material Adverse Effect on, or with respect to, the Purchaser. Each Purchaser Company Benefit Plan which is intended to be “qualified” within the meaning of Section 401(a) of the Code (i) has received a determination letter from the IRS and its related trust has been determined by the IRS to be so qualified (or is based on a prototype plan which has received a favorable opinion letter) during the period from its adoption to the date of this Agreement and (ii) is funded through a trust exempt from taxation under Section 501(a) of the CodeCode (or is based on a pre-approved plan for which the pre-approved plan sponsor has received a favorable opinion letter). To the Knowledge of the PurchaserCompany’s Knowledge, no fact exists which could that would reasonably be expected to adversely affect the qualified status of such Purchaser Company Benefit Plans or the exempt status of such trusts.
(iiic) With respect to each Purchaser Company Benefit PlanPlan that covers any current or former officer, director, consultant or employee (or beneficiary thereof) of a Target Company, the Purchaser Company has made available to the Seller Purchaser accurate and complete copies, if applicable, of: (i) all Purchaser Benefit Plan the current plan documents and agreements and related trust agreements or annuity Contracts (including any amendments, modifications or supplements thereto); (ii) all the current summary plan descriptions and material modifications thereto; (iii) the three (3) most recent Forms 5500, if applicable, and annual report, including all schedules thereto; (iv) the most recent annual and periodic accounting of plan assets; (v) the three (3) most recent nondiscrimination testing reports; (vi) the most recent determination or opinion letter received from the IRS, if any; (vii) the most recent actuarial valuation, if any; and (viii) all material written communications between the Purchaser or any Subsidiary or any Purchaser Benefit Plan and with any Governmental Authority and relating to a Purchaser Benefit Plan within six the last three (63) years preceding the date of this Agreementyears.
(ivd) With respect to each Purchaser Company Benefit Plan: (i) such Purchaser Benefit Plan to the Knowledge of the Company, no breach of fiduciary duty that could reasonably be expected to result in a Material Adverse Effect to any Target Company has been administered and enforced in all material respects in accordance with its terms, the Code and ERISAoccurred; (ii) neither the Purchaser nor any Subsidiary nor any employee, officer or director thereof that is a fiduciary (under ERISA) with respect to such Purchaser Benefit Plan has breached any of its fiduciary responsibilities, obligations or duties imposed on it by ERISA; (iii) no Action is pending pending, or to the Company’s Knowledge, threatened in writing (other than routine claims for benefits arising in the ordinary course of administration); and (iviii) nothing has occurred with respect to any Purchaser Benefit Plan that has subjected the Purchaser or any Subsidiary to any material penalty under no prohibited transaction, as defined in Section 502 406 of ERISA or Section 4975 of the Code; and (v) all contributions and premiums due through the Closing Date have been made , has occurred that would reasonably be likely to result in all material respects as required under ERISA a Material Adverse Effect to any Target Company, excluding transactions effected pursuant to a statutory or have been fully accrued in all material respects on the Purchaser Financialsadministration exemption.
(ve) No Purchaser Benefit Plan isDuring the six (6) year period preceding the Effective Time, and neither the Purchaser or any Subsidiary no Target Company or any of their respective ERISA Affiliates sponsorshas maintained, maintains, contributes to, is required to contribute contributed to, or otherwise has or could reasonably be expected had an obligation to have any current or contingent Liability under or with respect to, contribute to (i) a “defined benefit plan” (as defined in Section 414(j) of the Code), (ii) a “multiemployer plan” (as defined in Section 3(37) of ERISA), or (iii) or a “multiple employer plan” (as described in Section 413(c) of the Code) or ). No Company Benefit Plan is otherwise subject to Title IV of ERISA or Section 412 of the Code. To , and neither the PurchaserTarget Company nor any ERISA Affiliate has incurred any Liability, contingent or otherwise, under Title IV of ERISA and, to the Company’s Knowledge, no Purchaser condition presently exists that is expected to cause such Liability to be incurred. No Company Benefit Plan will become a multiple employer plan with respect to any Purchaser Entity Target Company immediately after the Closing Date. Neither the Purchaser nor any Subsidiary No Target Company currently maintains or has ever maintained, or is required currently or has ever been required to contribute to or otherwise participate in, a multiple employer welfare arrangement or voluntary employees’ beneficiary association as defined in Section 501(c)(9) of the Code. For purposes .
(f) With respect to each Company Benefit Plan that is a “welfare plan” (as described in Section 3(1) of this Agreement, “ERISA Affiliate” means, ERISA): (i) no such plan provides medical or death benefits with respect to any Person, any Person current or entity former employees of a Target Company beyond their termination of employment (whether or not incorporatedother than coverage mandated by Law); and (ii) that is under common control or treated as one employer under each Target Company has complied in all material respects with the provisions of Section 4001(b)(1) 601 et seq. of ERISA or and Section 414(b), (c), (m) or (o) 4980B of the Code.
(g) The consummation of the Transactions will not, by itself: (i) entitle any individual to severance pay, unemployment compensation or other benefits or compensation or (ii) accelerate the time of payment or vesting, or increase the amount of any compensation due, or in respect of, any individual. No Target Company has incurred any Liability for any Tax imposed under Chapter 43 of the Code or civil liability under Section 502(i) or (l) of ERISA.
(h) Each Company Benefit Plan that is subject to Section 409A of the Code has been administered in compliance, and is in documentary compliance, in each case in all material respects, with the applicable provisions of Section 409A of the Code, the regulations thereunder and other official guidance issued thereunder. There is no Contract or plan to which any Target Company is a party or by which it is bound to compensate any employee, consultant or director for any Taxes or interest imposed pursuant to Section 409A of the Code.
(i) Each Company Option intended to qualify as an “incentive stock option” under the Code so qualifies. Each grant of a Company Option was duly authorized no later than the date on which the grant of such Company Option was by its terms to be effective by all necessary corporate action, and: (i) the stock option agreement governing such grant was duly executed and delivered by each party thereto (including electronic execution and delivery); (ii) each such grant was made in accordance with the terms of the Company Equity Plan and all other applicable Laws; (iii) the per share exercise price of each Company Option was equal or greater than the fair market value (within the meaning of Section 409A of the Code) of a share of Company Common Stock on the applicable grant date; and (iv) each such grant was properly accounted for in accordance with GAAP in the financial statements (including the related notes) of the Company.
Appears in 2 contracts
Sources: Merger Agreement (SEP Acquisition Corp.), Merger Agreement (SANUWAVE Health, Inc.)
Benefit Plans. (ia) Set forth on Schedule 3.19(a2.25(a) is a true and complete list of each material Benefit Plan of the Purchaser Disclosure Schedule sets forth all compensation and its Subsidiaries benefit plans, programs, agreements, commitments, policies, practices or arrangements of any type (eachincluding, a but not limited to, plans described in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“Purchaser Benefit PlanERISA”)) offered, maintained or contributed to by Seller for the benefit of current or former employees, directors or managers, or with respect to which Seller has or may have any liability, whether direct or indirect, actual or contingent (collectively, the “Benefit Plans”), and includes a written description of all oral Benefit Plans. Seller has provided or made available copies of the documents pursuant to which the Benefit Plans are sponsored, maintained, funded and administered. There are no material compensation or benefit plans, programs, agreements, commitments, policies, practices or arrangements of any type providing benefits to employees, consultants, directors or managers, or with respect to which Seller may have any liability, other than the Benefit Plans.
(b) With respect to each Purchaser Benefit Plan, there are no funded benefit obligations for which contributions have not been materially made or properly accrued and there are no material unfunded benefit obligations that have not been accounted for by reserves, or otherwise properly footnoted in accordance with GAAP on the Purchaser Financials. Except as set forth on Schedule 3.19(a), neither the Purchaser nor any Subsidiary or has in the past been a member of a “controlled group” for purposes of Section 414(b), : (c), (mi) or (o) of the Code other than with the Purchaser or another Subsidiary, nor does the Purchaser or any Subsidiary have any Liability with respect to any collectively-bargained for plans, whether or not subject to the provisions of ERISA.
(ii) Each Purchaser Benefit Plan in all material respects is and has been operated in compliance with all applicable Laws in all material respects, including ERISA and the Code. Each Purchaser Benefit Plan which is if intended to be “qualified” within the meaning of qualify under Section 401(a) of the Code (i) has been determined by the IRS to be Code, such plan so qualified (or qualifies, and its trust is based on a prototype plan which has received a favorable opinion letter) during the period from its adoption to the date of this Agreement and (ii) is funded through a trust exempt from taxation under Section 501(a) of the Code. To the Knowledge of the Purchaser, no fact exists which could adversely affect the qualified status of such Purchaser Benefit Plans or the exempt status of such trusts.
(iii) With respect to each Purchaser Benefit Plan, the Purchaser has made available to the Seller accurate and complete copies, if applicable, of: (i) all Purchaser Benefit Plan documents and agreements and related trust agreements or annuity Contracts (including any amendments, modifications or supplements thereto); (ii) all summary such plan descriptions and material modifications thereto; (iii) the three (3) most recent Forms 5500, if applicable, and annual report, including all schedules thereto; (iv) the most recent annual and periodic accounting of plan assets; (v) the three (3) most recent nondiscrimination testing reports; (vi) the most recent determination letter received from the IRS, if any; (vii) the most recent actuarial valuation; and (viii) all material written communications between the Purchaser or any Subsidiary or any Purchaser Benefit Plan and any Governmental Authority and relating to a Purchaser Benefit Plan within six (6) years preceding the date of this Agreement.
(iv) With respect to each Purchaser Benefit Plan: (i) such Purchaser Benefit Plan has been administered and enforced in all material respects in accordance with its terms, the Code terms and ERISA; (ii) neither the Purchaser nor any Subsidiary nor any employee, officer or director thereof that is a fiduciary (under ERISA) with respect to such Purchaser Benefit Plan has breached any of its fiduciary responsibilities, obligations or duties imposed on it by ERISAall applicable Legal Requirements in all material respects; (iii) no Action is pending or threatened in writing (other than routine claims for benefits arising in the ordinary course breach of administration); (iv) nothing fiduciary duty has occurred with respect to which Seller or any Purchaser Benefit Plan that may be liable or otherwise damaged in any material respect; (iv) no disputes nor any audits or investigations by any Governmental Entity are pending or, to the knowledge of the Seller, threatened; (v) no non-exempt “prohibited transaction” (within the meaning of either Section 4975(c) of the Code or Section 406 of ERISA) has subjected the Purchaser occurred with respect to which Seller or any Subsidiary to Benefit Plan may be liable or otherwise damaged in any material penalty respect; (vi) all contributions, premiums, and other payment obligations have been accrued on the financial statements of Seller, and, to the extent due, have been made on a timely basis, in all material respects; (vii) all contributions or benefit payments made or required to be made under such plan meet the requirements for deductibility under the Code; (viii) Seller has expressly reserved to itself the right to amend, modify or terminate such plan, or any portion of it, at any time without liability to itself; and (ix) no such plan requires Seller to continue to employ or retain any employee, manager or director.
(c) No Benefit Plan (whether or not terminated) is, or has ever been, subject to Section 412 of the Code or Section 302 or Title IV of ERISA. Seller has never been a party to a transaction contemplated under Section 502 4069 of ERISA, and the Transactions are not such a transaction.
(d) With respect to each Benefit Plan which provides welfare benefits of a type described in Section 3(1) of ERISA: (i) no such plan provides medical or death benefits with respect to current or former employees, officers, directors or consultants (or any spouse or dependent thereof) beyond their termination of employment (or in the case of directors or consultants, termination of service), other than coverage mandated by Sections 601-608 of ERISA or Section 4975 and 4980B(f) of the CodeCode or similar state Legal Requirements (collectively, “COBRA”); (ii) each such plan has been administered in compliance with COBRA; (iii) no such plan is or is provided through a “multiple employer welfare arrangement” within the meaning of Section 3(40) of ERISA; (iv) no such plan has reserves, assets, surpluses or prepaid premiums; and (v) all contributions such plan has been operated in compliance with the Patient Protection and premiums due through the Closing Date have been made in all material respects Affordable Care Act, including its employer shared responsibility and market reform provisions, as required under ERISA or have been fully accrued in all material respects on the Purchaser Financialsapplicable.
(ve) No Purchaser The consummation of the Transactions will not (i) entitle any individual to severance pay, (ii) accelerate the time of payment or vesting under any Benefit Plan is, and neither the Purchaser or any Subsidiary or any of their respective ERISA Affiliates sponsors, maintains, contributes to, is required to contribute toPlan, or otherwise has (iii) increase the amount of compensation or could reasonably be expected to have any current or contingent Liability under or with respect to, a “defined benefit plan” (as defined in Section 414(j) of the Code), a “multiemployer plan” (as defined in Section 3(37) of ERISA) or a “multiple employer plan” (as described in Section 413(c) of the Code) or is otherwise subject to Title IV of ERISA or Section 412 of the Code. To the Purchaser’s Knowledge, no Purchaser Benefit Plan will become a multiple employer plan with respect benefits due to any Purchaser Entity immediately after the Closing Date. Neither the Purchaser nor any Subsidiary currently maintains or has ever maintained, or is required currently or has ever been required to contribute to or otherwise participate in, a multiple employer welfare arrangement or voluntary employees’ beneficiary association as defined in Section 501(c)(9) of the Code. For purposes of this Agreement, “ERISA Affiliate” means, with respect to any Person, any Person or entity (whether or not incorporated) that is under common control or treated as one employer under Section 4001(b)(1) of ERISA or Section 414(b), (c), (m) or (o) of the Codeindividual.
Appears in 2 contracts
Sources: Asset Purchase Agreement (BOSTON OMAHA Corp), Asset Purchase Agreement (BOSTON OMAHA Corp)
Benefit Plans. (ia) Set forth on Schedule 3.19(a) is a true SOR II and complete list of each material Benefit Plan of the Purchaser SOR II Subsidiaries do not and its Subsidiaries (eachare not required to, a “Purchaser Benefit Plan”). With respect to each Purchaser Benefit Plan, there are no funded benefit obligations for which contributions and have not and have never been materially made required to, maintain, sponsor or properly accrued and there are no material unfunded benefit obligations that have not been accounted for by reserves, or otherwise properly footnoted in accordance with GAAP on the Purchaser Financialscontribute to any Benefit Plans. Except as set forth on Schedule 3.19(a), neither the Purchaser Neither SOR II nor any SOR II Subsidiary has any contract, plan or has in the past been a member of a “controlled group” for purposes of Section 414(b), (c), (m) or (o) of the Code other than with the Purchaser or another Subsidiary, nor does the Purchaser or any Subsidiary have any Liability with respect to any collectively-bargained for planscommitment, whether or not subject legally binding, to the provisions of ERISAcreate any Benefit Plan.
(iib) Each Purchaser Benefit Plan in all material respects is and has been operated in compliance with all applicable Laws in all material respects, including ERISA and the Code. Each Purchaser Benefit Plan which is intended to be “qualified” within the meaning of Section 401(a) of the Code (i) has been determined by the IRS to be so qualified (Except as individually or is based on a prototype plan which has received a favorable opinion letter) during the period from its adoption to the date of this Agreement and (ii) is funded through a trust exempt from taxation under Section 501(a) of the Code. To the Knowledge of the Purchaser, no fact exists which could adversely affect the qualified status of such Purchaser Benefit Plans or the exempt status of such trusts.
(iii) With respect to each Purchaser Benefit Plan, the Purchaser has made available to the Seller accurate and complete copies, if applicable, of: (i) all Purchaser Benefit Plan documents and agreements and related trust agreements or annuity Contracts (including any amendments, modifications or supplements thereto); (ii) all summary plan descriptions and material modifications thereto; (iii) the three (3) most recent Forms 5500, if applicable, and annual report, including all schedules thereto; (iv) the most recent annual and periodic accounting of plan assets; (v) the three (3) most recent nondiscrimination testing reports; (vi) the most recent determination letter received from the IRS, if any; (vii) the most recent actuarial valuation; and (viii) all material written communications between the Purchaser or any Subsidiary or any Purchaser Benefit Plan and any Governmental Authority and relating to a Purchaser Benefit Plan within six (6) years preceding the date of this Agreement.
(iv) With respect to each Purchaser Benefit Plan: (i) such Purchaser Benefit Plan has been administered and enforced in all material respects in accordance with its terms, the Code and ERISA; (ii) neither the Purchaser nor any Subsidiary nor any employee, officer or director thereof that is a fiduciary (under ERISA) with respect to such Purchaser Benefit Plan has breached any of its fiduciary responsibilities, obligations or duties imposed on it by ERISA; (iii) no Action is pending or threatened in writing (other than routine claims for benefits arising in the ordinary course aggregate, have not had and would not reasonably be expected to have SOR II Material Adverse Effect, none of administration); (iv) nothing has occurred with respect to SOR II, any Purchaser Benefit Plan that has subjected the Purchaser or any Subsidiary to any material penalty under Section 502 of ERISA or Section 4975 of the Code; and (v) all contributions and premiums due through the Closing Date have been made in all material respects as required under ERISA or have been fully accrued in all material respects on the Purchaser Financials.
(v) No Purchaser Benefit Plan is, and neither the Purchaser or any SOR II Subsidiary or any of their respective ERISA Affiliates sponsorshas incurred any obligation or liability with respect to or under any employee benefit plan, maintainsprogram or arrangement (including any agreement, contributes program, policy or other arrangement under which any current or former employee, director or consultant has any present or future right to benefits) which has created or will create any obligation with respect to, is required or has resulted in or will result in any liability to contribute SOR II or any SOR II Subsidiary.
(c) None of SOR II, any SOR II Subsidiaries or any of their respective ERISA Affiliates has ever maintained, contributed to, or participated in, or otherwise has any obligation or could reasonably be expected to have any current or contingent Liability under or with respect to, liability in connection with: (i) a “defined benefit pension plan” (as defined in under Section 414(j3(2) of ERISA that is subject to Title IV or Section 302 of ERISA or Section 412 or 4971 of the Code), (ii) a “multiemployer plan” (as defined in Section 3(37) of ERISA), (iii) a “multiple employer welfare arrangement” (as defined in Section 3(40) of ERISA), or (iv) a “multiple employer plan” (as described defined in Section 413(c) of the Code).
(d) No amount that could be received (whether in cash or is otherwise subject to Title IV property or the vesting of ERISA or Section 412 property) as a result of the Code. To Merger or any of the Purchaser’s Knowledge, no Purchaser Benefit Plan will become other transactions contemplated hereby (alone or in combination with any other event) by any Person who is a multiple employer plan with respect to “disqualified individual” (as such term is defined in Treasury Regulation Section 1.280G-1) under any Purchaser Entity immediately after the Closing Date. Neither the Purchaser nor any Subsidiary currently maintains or has ever maintained, or compensation arrangement could be characterized as an “excess parachute payment” (as such term is required currently or has ever been required to contribute to or otherwise participate in, a multiple employer welfare arrangement or voluntary employees’ beneficiary association as defined in Section 501(c)(9280G(b)(1) of the Code. For purposes of this Agreement, “ERISA Affiliate” means, with respect ).
(e) Neither SOR II nor any SOR II Subsidiary is a party to or has any Person, obligation under any Contract or otherwise to compensate any Person for excise Taxes payable pursuant to Section 4999 of the Code or entity (whether or not incorporated) that is under common control or treated as one employer under for additional Taxes payable pursuant to Section 4001(b)(1) of ERISA or Section 414(b), (c), (m) or (o) 409A of the Code.
(f) Neither SOR II nor any SOR II Subsidiary has, or has ever had, any employees.
Appears in 2 contracts
Sources: Merger Agreement (Pacific Oak Strategic Opportunity REIT II, Inc.), Merger Agreement (Pacific Oak Strategic Opportunity REIT, Inc.)
Benefit Plans. (ia) Set forth on Schedule 3.19(a4.19(a) is a true and complete list of each material Benefit Plan of the Purchaser and its Subsidiaries a Target Company (each, a “Purchaser Company Benefit Plan”). With respect to each Purchaser Company Benefit Plan, there are no funded benefit obligations for which contributions have not been materially made or properly accrued and there are no material unfunded benefit obligations that have not been accounted for by reserves, or otherwise properly footnoted in accordance with GAAP on the Purchaser Company Financials. Except as set forth on Schedule 3.19(a), neither the Purchaser nor any Subsidiary No Target Company is or has in the past been a member of a “controlled group” for purposes of Section 414(b), (c), (m) or (o) of the Code other than with the Purchaser or another SubsidiaryCode, nor does the Purchaser or any Subsidiary Target Company have any Liability with respect to any collectively-bargained for plans, whether or not subject to the provisions of ERISA.
(iib) Each Purchaser Company Benefit Plan in all material respects is and has been operated at all times in compliance with all applicable Laws in all material respects, including ERISA and the Code. Each Purchaser Company Benefit Plan which is intended to be “qualified” within the meaning of Section 401(a) of the Code (i) has been determined by the IRS to be so qualified (or is based on a prototype plan which has received a favorable opinion letter) during the period from its adoption to the date of this Agreement and (ii) is funded through a its related trust has been determined to be exempt from taxation under Section 501(a) of the CodeCode or the Target Companies have requested an initial favorable IRS determination of qualification and/or exemption within the period permitted by applicable Law. To the Knowledge of the PurchaserCompany’s Knowledge, no fact exists which could adversely affect the qualified status of such Purchaser Company Benefit Plans or the exempt status of such trusts.
(iiic) With respect to each Purchaser Company Benefit PlanPlan which covers any current or former officer, director, consultant or employee (or beneficiary thereof) of a Target Company, the Company has provided to Purchaser has made available to the Seller accurate and complete copies, if applicable, of: (i) all Purchaser Company Benefit Plan documents and agreements and related trust agreements or annuity Contracts (including any amendments, modifications or supplements thereto); (ii) all summary plan descriptions and summary of material modifications thereto; (iii) the three (3) most recent Forms 5500, if applicable, and annual report, including all schedules thereto; (iv) the most recent annual and periodic accounting of plan assets; (v) the three (3) most recent nondiscrimination testing reports; (vi) the most recent determination letter received from the IRS, if any; (vii) the most recent actuarial valuation; and (viii) all material written communications between the Purchaser or any Subsidiary or any Purchaser Benefit Plan and with any Governmental Authority and relating to a Purchaser Benefit Plan within six the last three (63) years preceding the date of this Agreementyears.
(ivd) With respect to each Purchaser Company Benefit Plan: (i) such Purchaser Company Benefit Plan has been administered and enforced in all material respects in accordance with its terms, the Code and ERISA; (ii) neither the Purchaser nor any Subsidiary nor any employee, officer or director thereof that is a no breach of fiduciary (under ERISA) with respect to such Purchaser Benefit Plan duty has breached any of its fiduciary responsibilities, obligations or duties imposed on it by ERISAoccurred; (iii) no Action is pending or threatened in writing (other than routine claims for benefits arising in the ordinary course of administration); (iv) nothing has occurred with respect to any Purchaser Benefit Plan that has subjected the Purchaser or any Subsidiary to any material penalty under no prohibited transaction, as defined in Section 502 406 of ERISA or Section 4975 of the Code, has occurred, excluding transactions effected pursuant to a statutory or administration exemption; and (v) all contributions and premiums due through the Closing Date have been made in all material respects as required under ERISA or have been fully accrued in all material respects on the Purchaser Company Financials.
(ve) No Purchaser Company Benefit Plan is, and neither the Purchaser or any Subsidiary or any of their respective ERISA Affiliates sponsors, maintains, contributes to, is required to contribute to, or otherwise has or could reasonably be expected to have any current or contingent Liability under or with respect to, a “defined benefit plan” (as defined in Section 414(j) of the Code), a “multiemployer plan” (as defined in Section 3(37) of ERISA) or a “multiple employer plan” (as described in Section 413(c) of the Code) or is otherwise subject to Title IV of ERISA or Section 412 of the Code, and no Target Company has incurred any Liability or otherwise could have any Liability, contingent or otherwise, under Title IV of ERISA and no condition presently exists that is expected to cause such Liability to be incurred. To the Purchaser’s Knowledge, no Purchaser No Company Benefit Plan will become a multiple employer plan with respect to any Purchaser Entity Target Company immediately after the Closing Date. Neither the Purchaser nor any Subsidiary No Target Company currently maintains or has ever maintained, or is required currently or has ever been required to contribute to or otherwise participate in, a multiple employer welfare arrangement or voluntary employees’ beneficiary association as defined in Section 501(c)(9) of the Code.
(f) No arrangement exists pursuant to which a Target Company will be required to “gross up” or otherwise compensate any person because of the imposition of any excise tax on a payment to such person.
(g) With respect to each Company Benefit Plan which is a “welfare plan” (as described in Section 3(1) of ERISA): (i) no such plan provides medical or death benefits with respect to current or former employees of a Target Company beyond their termination of employment (other than coverage mandated by Law, which is paid solely by such employees); and (ii) there are no reserves, assets, surplus or prepaid premiums under any such plan. For purposes Each Target Company has complied in all material respects with the provisions of Section 601 et seq. of ERISA and Section 4980B of the Code.
(h) Except as set forth on Schedule 4.19(h), the consummation of the transactions contemplated by this AgreementAgreement and the Ancillary Documents will not: (i) entitle any individual to severance pay, unemployment compensation or other benefits or compensation (except as set forth on Schedule 4.19(a)); (ii) accelerate the time of payment or vesting, or increase the amount of any compensation due, or in respect of, any individual; or (iii) result in or satisfy a condition to the payment of compensation that would, in combination with any other payment, result in an “ERISA Affiliateexcess parachute payment” meanswithin the meaning of Section 280G of the Code. No Target Company has incurred any Liability for any Tax imposed under Chapter 43 of the Code or civil liability under Section 502(i) or (l) of ERISA.
(i) All Company Benefit Plans can be terminated at any time prior to the Closing Date without resulting in any Liability to the Surviving Corporation or Purchaser or their respective Affiliates for any additional contributions, penalties, premiums, fees, fines, excise taxes or any other charges or liabilities.
(j) Each Company Benefit Plan that is subject to Section 409A of the Code (each, a “Section 409A Plan”) as of the Closing Date is indicated as such on Schedule 4.19(j). No options or other equity-based awards have been issued or granted by the Company that are, or are subject to, a Section 409A Plan. Each Section 409A Plan has been administered in compliance, and is in documentary compliance, in all material respects, with the applicable provisions of Section 409A of the Code, the regulations thereunder and other official guidance issued thereunder. No Target Company has any obligation to any employee or other service provider with respect to any Person, Section 409A Plan that may be subject to any Person or entity (whether or not incorporated) that is under common control or treated as one employer Tax under Section 4001(b)(1) 409A of ERISA the Code. No payment to be made under any Section 409A Plan is, or to the Knowledge of the Company will be, subject to the penalties of Section 414(b), (c), (m) or (o409A(a)(1) of the Code. There is no Contract or plan to which any Target Company is a party or by which it is bound to compensate any employee, consultant or director for penalty taxes paid pursuant to Section 409A of the Code.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Arogo Capital Acquisition Corp.), Merger Agreement (Data Knights Acquisition Corp.)
Benefit Plans. (ia) Set forth on Schedule 3.19(a4.20(a) is a true and complete list of each material Benefit Plan of the Purchaser and its Subsidiaries a Target Company (each, a “Purchaser Company Benefit Plan”). With respect to each Purchaser Company Benefit Plan, there are no funded benefit obligations for which contributions have not been materially made or properly accrued and there are no material unfunded benefit obligations that have not been accounted for by reserves, or otherwise properly footnoted in accordance with GAAP on the Purchaser Company Financials. Except as set forth on Schedule 3.19(a), neither the Purchaser nor any Subsidiary No Target Company is or has in the past been a member of a “controlled group” for purposes of Section 414(b), (c), (m) or (o) of the Code other than with the Purchaser or another SubsidiaryCode, nor does the Purchaser or any Subsidiary Target Company have any Liability with respect to any collectively-bargained for plans, whether or not subject to the provisions of ERISA.
(iib) Each Purchaser Company Benefit Plan in all material respects is and has been operated at all times in compliance with all applicable Laws in all material respects, including ERISA and the Code. Each Purchaser Company Benefit Plan which is intended to be “qualified” within the meaning of Section 401(a) of the Code (i) has been determined by the IRS to be so qualified (or is based on a prototype plan which has received a favorable opinion letter) during the period from its adoption to the date of this Agreement and (ii) is funded through a its related trust has been determined to be exempt from taxation under Section 501(a) of the CodeCode or the Target Companies have requested an initial favorable IRS determination of qualification and/or exemption within the period permitted by applicable Law. To the Knowledge of the PurchaserCompany’s Knowledge, no fact exists which could adversely affect the qualified status of such Purchaser Company Benefit Plans or the exempt status of such trusts.
(iiic) With respect to each Purchaser Company Benefit PlanPlan which covers any current or former officer, director, consultant or employee (or beneficiary thereof) of a Target Company, the Company has provided to Purchaser has made available to the Seller accurate and complete copies, if applicable, of: (i) all Purchaser Company Benefit Plan documents and agreements and related trust agreements or annuity Contracts (including any amendments, modifications or supplements thereto); (ii) all summary plan descriptions and summary of material modifications thereto; (iii) the three (3) most recent Forms 5500, if applicable, and annual report, including all schedules thereto; (iv) the most recent annual and periodic accounting of plan assets; (v) the three (3) most recent nondiscrimination testing reports; (vi) the most recent determination letter received from the IRS, if any; (vii) the most recent actuarial valuation; and (viii) all material written communications between the Purchaser or any Subsidiary or any Purchaser Benefit Plan and with any Governmental Authority and relating to a Purchaser Benefit Plan within six the last three (63) years preceding the date of this Agreementyears.
(ivd) With respect to each Purchaser Company Benefit Plan: (i) such Purchaser Company Benefit Plan has been administered and enforced in all material respects in accordance with its terms, the Code and ERISA; (ii) neither the Purchaser nor any Subsidiary nor any employee, officer or director thereof that is a no breach of fiduciary (under ERISA) with respect to such Purchaser Benefit Plan duty has breached any of its fiduciary responsibilities, obligations or duties imposed on it by ERISAoccurred; (iii) no Action is pending pending, or to the Company’s Knowledge, threatened in writing (other than routine claims for benefits arising in the ordinary course of administration); (iv) nothing has occurred with respect to any Purchaser Benefit Plan that has subjected the Purchaser or any Subsidiary to any material penalty under no prohibited transaction, as defined in Section 502 406 of ERISA or Section 4975 of the Code, has occurred, excluding transactions effected pursuant to a statutory or administration exemption; and (v) all contributions and premiums due through the Closing Date have been made in all material respects as required under ERISA or have been fully accrued in all material respects on the Purchaser Company Financials.
(ve) No Purchaser Except as set forth on Schedule 4.20(e), no Company Benefit Plan is, and neither the Purchaser or any Subsidiary or any of their respective ERISA Affiliates sponsors, maintains, contributes to, is required to contribute to, or otherwise has or could reasonably be expected to have any current or contingent Liability under or with respect to, a “defined benefit plan” (as defined in Section 414(j) of the Code), a “multiemployer plan” (as defined in Section 3(37) of ERISA) or a “multiple employer plan” (as described in Section 413(c) of the Code) or is otherwise subject to Title IV of ERISA or Section 412 of the Code, and no Target Company has incurred any Liability or otherwise could have any Liability, contingent or otherwise, under Title IV of ERISA and no condition presently exists that is expected to cause such Liability to be incurred. To the Purchaser’s Knowledge, no Purchaser No Company Benefit Plan will become a multiple employer plan with respect to any Purchaser Entity Target Company immediately after the Closing Date. Neither the Purchaser nor any Subsidiary No Target Company currently maintains or has ever maintained, or is required currently or has ever been required to contribute to or otherwise participate in, a multiple employer welfare arrangement or voluntary employees’ beneficiary association as defined in Section 501(c)(9) of the Code.
(f) No arrangement exists pursuant to which a Target Company will be required to “gross up” or otherwise compensate any person because of the imposition of any excise tax on a payment to such person.
(g) With respect to each Company Benefit Plan which is a “welfare plan” (as described in Section 3(1) of ERISA): (i) no such plan provides medical or death benefits with respect to current or former employees of a Target Company beyond their termination of employment (other than coverage mandated by Law, which is paid solely by such employees); and (ii) there are no reserves, assets, surplus or prepaid premiums under any such plan. For purposes Each Target Company has complied in all material respects with the provisions of Section 601 et seq. of ERISA and Section 4980B of the Code.
(h) Except as set forth on Schedule 4.20(h), the consummation of the transactions contemplated by this AgreementAgreement and the Ancillary Documents will not: (i) entitle any individual to severance pay, unemployment compensation or other benefits or compensation (except as set forth on Schedule 4.19(a)); (ii) accelerate the time of payment or vesting, or increase the amount of any compensation due, or in respect of, any individual; or (iii) result in or satisfy a condition to the payment of compensation that would, in combination with any other payment, result in an “ERISA Affiliateexcess parachute payment” meanswithin the meaning of Section 280G of the Code. No Target Company has incurred any Liability for any Tax imposed under Chapter 43 of the Code or civil liability under Section 502(i) or (l) of ERISA.
(i) Except to the extent required by Section 4980B of the Code or similar state Law, no Target Company provides health or welfare benefits to any former or retired employee or is obligated to provide such benefits to any active employee following such employee’s retirement or other termination of employment or service.
(j) All Company Benefit Plans can be terminated at any time as of or after the Closing Date without resulting in any Liability to the Surviving Corporation or Purchaser or their respective Affiliates for any additional contributions, penalties, premiums, fees, fines, excise taxes or any other charges or liabilities, except for costs in the normal course related to termination of a Company Benefit Plan.
(k) Each Company Benefit Plan that is subject to Section 409A of the Code (each, a “Section 409A Plan”) as of the Closing Date is indicated as such on Schedule 4.20(k). No options or other equity-based awards have been issued or granted by the Company that are, or are subject to, a Section 409A Plan. Each Section 409A Plan has been administered in compliance, and is in documentary compliance, in all material respects, with the applicable provisions of Section 409A of the Code, the regulations thereunder and other official guidance issued thereunder. No Target Company has any obligation to any employee or other service provider with respect to any Person, Section 409A Plan that may be subject to any Person or entity (whether or not incorporated) that is under common control or treated as one employer Tax under Section 4001(b)(1) 409A of ERISA the Code. No payment to be made under any Section 409A Plan is, or to the Knowledge of the Company will be, subject to the penalties of Section 414(b), (c), (m) or (o409A(a)(1) of the Code. There is no Contract or plan to which any Target Company is a party or by which it is bound to compensate any employee, consultant or director for penalty taxes paid pursuant to Section 409A of the Code.
Appears in 2 contracts
Sources: Merger Agreement (Lakeshore Acquisition II Corp.), Agreement and Plan of Merger (Lakeshore Acquisition I Corp.)
Benefit Plans. (ia) Set Section 3.11(a) of the Seller Disclosure Schedule sets forth on Schedule 3.19(a) is a true and complete list of each material Benefit Plan of that covers any Business Employee who provides services primarily to the Purchaser and its Subsidiaries (each, a “Purchaser Benefit Plan”)Business. With respect to each Purchaser Benefit Plan, there are no funded benefit obligations for which contributions have not been materially Seller has made or properly accrued available to Purchaser complete and there are no material unfunded benefit obligations that have not been accounted for by reserves, or otherwise properly footnoted in accordance with GAAP on the Purchaser Financials. Except as set forth on Schedule 3.19(a), neither the Purchaser nor any Subsidiary or has in the past been a member of a “controlled group” for purposes of Section 414(b), (c), (m) or (o) correct copies of the Code other than with current plan document (or a written description of material terms if no plan document exists) and, if required by applicable Law, the Purchaser or another Subsidiary, nor does the Purchaser or any Subsidiary have any Liability with respect to any collectively-bargained for plans, whether or not subject to the provisions of ERISA.
(ii) Benefit Plan’s summary plan description. Each Purchaser Benefit Plan and, if applicable, related trust has been established, maintained, funded and administered in all material respects is and has been operated in compliance with all applicable Laws complies in all material respects, with respect to any Business Employee, with its terms and all applicable Laws (including ERISA and and, the Code). Each Purchaser Benefit Plan which that is intended to be “qualified” within the meaning of qualified under Section 401(a) of the Code (ia “Qualified Benefit Plan”) has been determined by the IRS to be so qualified (or is based on a prototype plan which has received a favorable determination letter from the Internal Revenue Service, or with respect to a prototype or volume submitter plan, can rely on an opinion letter) during letter from the period from its adoption Internal Revenue Service to the date prototype or volume submitter plan sponsor, in each case a copy of this Agreement which has been made available to Purchaser, to the effect that such Qualified Benefit Plan is so qualified and (ii) is funded through a that the plan and the trust related thereto are exempt from taxation federal income Taxes under Sections 401(a) and 501(a), respectively, of the Code, and nothing has occurred that could reasonably be expected to cause the revocation of such determination letter from the Internal Revenue Service or the unavailability of reliance on such opinion letter from the Internal Revenue Service, as applicable or otherwise adversely affect the qualification of such Benefit Plan. With respect to any Benefit Plan and any Business Employee, to the knowledge of Seller, no event has occurred or is reasonably expected to occur that has resulted in or would subject Seller to a Tax under Section 501(a4971 of the Code. No event has occurred that would subject the Transferred Assets to a lien under Section 430(k) of the Code. To the Knowledge of the PurchaserAll contributions, no fact exists which could adversely affect the qualified status of such Purchaser Benefit Plans or the exempt status of such trusts.
(iii) With respect to each Purchaser Benefit Plandistributions, the Purchaser has made available to the Seller accurate reimbursements and complete copies, if applicable, of: (i) all Purchaser Benefit Plan documents and agreements and related trust agreements or annuity Contracts (including any amendments, modifications or supplements thereto); (ii) all summary plan descriptions and material modifications thereto; (iii) the three (3) most recent Forms 5500, if applicable, and annual report, including all schedules thereto; (iv) the most recent annual and periodic accounting of plan assets; (v) the three (3) most recent nondiscrimination testing reports; (vi) the most recent determination letter received from the IRS, if any; (vii) the most recent actuarial valuation; and (viii) all material written communications between the Purchaser or any Subsidiary or any Purchaser Benefit Plan and any Governmental Authority and relating to a Purchaser Benefit Plan within six (6) years preceding the date of this Agreement.
(iv) With respect to each Purchaser Benefit Plan: (i) such Purchaser Benefit Plan has been administered and enforced in all material respects in accordance with its terms, the Code and ERISA; (ii) neither the Purchaser nor any Subsidiary nor any employee, officer or director thereof that is a fiduciary (under ERISA) with respect to such Purchaser Benefit Plan has breached any of its fiduciary responsibilities, obligations or duties imposed on it by ERISA; (iii) no Action is pending or threatened in writing (other than routine claims for benefits arising in the ordinary course of administration); (iv) nothing has occurred premium payments due with respect to any Purchaser Business Employee under or pursuant to each Benefit Plan that has subjected prior to the Purchaser or any Subsidiary to any material penalty under Section 502 of ERISA or Section 4975 Closing will have been timely made as of the Code; and (v) all contributions and premiums due through the Closing Date have been made in all material respects as required under ERISA or have been fully accrued in all material respects on the Purchaser FinancialsClosing.
(vb) No Purchaser Benefit Plan is, and neither the Purchaser or any Subsidiary or Seller nor any of their respective ERISA its Affiliates sponsors, maintains, contributes to, is required to contribute to, or otherwise has or could reasonably be expected to have any current or contingent Liability liability or obligation under or with respect to, : (i) a “defined benefit plan” (as defined in plan that is or subject to the minimum funding standards of Section 414(j) 302 of ERISA or Section 412 of the Code), ; or (ii) a “multiemployer multi-employer plan” (as defined in Section 3(37) of ERISA). Neither Seller nor any of its Affiliates has: (A) withdrawn from any pension plan under circumstances resulting (or expected to result) in liability; or (B) engaged in any transaction which would give rise to a liability under Section 4069 or Section 4212(c) of ERISA.
(c) Except as set forth on Section 3.11(c) of the Seller Disclosure Schedule attached hereto and other than as required under Section 4980B of the Code or other similar applicable Law and for which the beneficiary pays the full premium cost, no Benefit Plan provides for any Business Employee benefits or coverage in the nature of health, life or disability insurance following retirement or other termination of employment or service (other than death benefits when termination occurs upon death).
(d) Except as set forth on Section 3.11(d) attached hereto, no Benefit Plan exists that could: (i) result in the payment to any Business Employee, director or consultant of the Business of any money or other property; or (ii) accelerate the payment, vesting of or provide any additional rights or benefits (including funding of compensation or benefits through a trust or otherwise) to any Business Employee, director or consultant of the Business, in each case, as a result of the execution of this Agreement or the consummation of the transactions contemplated hereby.
(e) The execution of this Agreement and the consummation of the transactions contemplated hereby, will not (alone or in conjunction with any other event) (i) result in any material payment becoming due to any Business Employee or Former Business Employee under any Benefit Plan or otherwise, (ii) materially increase any benefits or compensation otherwise payable to any Business Employee or Former Business Employee under any Benefit Plan or otherwise, or (iii) result in the acceleration of time of payment or vesting of, or require the material funding of, any such benefits or compensation.
(f) Each Benefit Plan that is a “multiple employer nonqualified deferred compensation plan” (within the meaning of Section 409A of the Code) complies with respect to the Business Employees in all material respects with the requirements of Section 409A of the Code and the regulations thereunder by its terms and has been operated with respect to the Business Employees in all material respects in accordance with such requirements such that no material additional Taxes are due with respect to any such arrangement under Section 409A of the Code.
(g) The Company is not a party to, nor is otherwise obligated under, any plan, policy, agreement or arrangement that provides for the gross-up or reimbursement of Taxes imposed under Section 409A or 4999 of the Code (or any corresponding provisions of state, local or foreign Taxes). No amount or other entitlement that could be received as described a result of the transactions contemplated hereby (alone or in conjunction with any other event, including any termination of employment) by any “disqualified individual” (as defined in Section 413(c280G(c) of the Code) or is otherwise subject to Title IV of ERISA or Section 412 of the Code. To the Purchaser’s Knowledge, no Purchaser Benefit Plan will become a multiple employer plan with respect to any Purchaser Entity immediately after the Closing Date. Neither the Purchaser nor any Subsidiary currently maintains or has ever maintained, or is required currently or has ever been required to contribute to or otherwise participate in, a multiple employer welfare arrangement or voluntary employees’ beneficiary association Company will constitute an “excess parachute payment” (as defined in Section 501(c)(9280G(b)(1) of the Code. For purposes of this Agreement, “ERISA Affiliate” means, with respect to any Person, any Person or entity (whether or not incorporated) that is under common control or treated as one employer under Section 4001(b)(1) of ERISA or Section 414(b), (c), (m) or (o) of the Code.
Appears in 2 contracts
Sources: Unit Purchase Agreement (Yelp Inc), Unit Purchase Agreement (GrubHub Inc.)
Benefit Plans. (i) Set forth on Schedule 3.19(a) is a true and complete list of each material Benefit Plan of the Purchaser and its Subsidiaries (each, a “Purchaser Benefit Plan”). With respect to each Purchaser Benefit Plan, there are no funded benefit obligations for which contributions have not been materially made or properly accrued and there are no material unfunded benefit obligations that have not been accounted for by reserves, or otherwise properly footnoted in accordance with GAAP on the Purchaser Financials. Except as set forth on Schedule 3.19(a), neither the Purchaser nor any Subsidiary or has in the past been a member of a “controlled group” for purposes of Section 414(b), (c), (m) or (o3.1(j)(i) of the Code other than with the Purchaser or another Subsidiary, nor does the Purchaser or any Subsidiary have any Liability with respect to any collectively-bargained for plans, whether or not subject to the provisions Company Disclosure Letter contains a list of ERISAall material Company Employee Benefit Plans.
(ii) Each Purchaser With respect to each material Company Employee Benefit Plan, the Company has made available to Parent a true and correct copy of such Plan, including any and all amendments thereto.
(iii) Section 3.1(j)(iii) of the Company Disclosure Letter identifies each Company Employee Benefit Plan in all material respects is and has been operated in compliance with all applicable Laws in all material respects, including ERISA and the Code. Each Purchaser Benefit Plan which that is intended to be a “qualifiedqualified plan” within the meaning of pursuant to Section 401(a) of the Code (i) “Company Qualified Plans”). The IRS has been determined by issued a favorable determination letter with respect to each Company Qualified Plan and the IRS to be so qualified related trust (or is based on a prototype plan which has received a favorable opinion letterletter upon which the Company or its applicable Subsidiary is entitled to rely, in the case of a prototype or volume submitter document for which a separate determination letter is not required) during the period from its adoption that has not been revoked, and there are no circumstances, and no events have occurred, that could reasonably be expected to the date of this Agreement and (ii) is funded through a trust exempt from taxation under Section 501(a) of the Code. To the Knowledge of the Purchaser, no fact exists which could adversely affect the qualified status of such Purchaser Benefit Plans any Company Qualified Plan or the exempt status of such trusts.
(iii) With respect to each Purchaser Benefit Plan, the Purchaser has made available to the Seller accurate and complete copies, if applicable, of: (i) all Purchaser related trust. No Company Employee Benefit Plan documents and agreements and related is or is required to be funded through a trust agreements or annuity Contracts (including any amendments, modifications or supplements thereto); (iithat is intended to meet the requirements of Section 501(c)(9) all summary plan descriptions and material modifications thereto; (iii) of the three (3) most recent Forms 5500, if applicable, and annual report, including all schedules thereto; (iv) the most recent annual and periodic accounting of plan assets; (v) the three (3) most recent nondiscrimination testing reports; (vi) the most recent determination letter received from the IRS, if any; (vii) the most recent actuarial valuation; and (viii) all material written communications between the Purchaser or any Subsidiary or any Purchaser Benefit Plan and any Governmental Authority and relating to a Purchaser Benefit Plan within six (6) years preceding the date of this AgreementCode.
(iv) With respect to each Purchaser Benefit Plan: (i) such Purchaser Company Employee Benefit Plan has been administered and enforced in all material respects in accordance with its terms, the Code and ERISA; (ii) neither the Purchaser nor any Subsidiary nor any employee, officer or director thereof that is not a fiduciary (under ERISA) with respect Non-US Company Plan, all contributions, premium payments, and other payments, expenses and reimbursements required to such Purchaser Benefit Plan has breached be made by the Company or any of its fiduciary responsibilitiesSubsidiaries by applicable Law or regulation or by any plan document or other contractual undertaking, obligations have been timely made (except where the Company’s failure to timely make such contributions or duties imposed on it by ERISA; (iii) no Action is pending or threatened pay such premiums would not result in writing (other than routine claims for benefits arising in the ordinary course of administration); (iv) nothing has occurred with respect to any Purchaser Benefit Plan that has subjected the Purchaser or any Subsidiary to any material liability, penalty under Section 502 of ERISA or Section 4975 of the Code; and (v) all contributions and premiums due through the Closing Date have been made in all material respects as required under ERISA tax), or have been fully properly accrued in all material respects and accurately reflected on the Purchaser FinancialsCompany’s financial statements.
(v) No Purchaser With respect to each employee benefit plan, program, policy, practice, agreement, or other arrangement maintained and/or operated by a Governmental Entity and subject to the applicable Laws of any jurisdiction outside the United States and Canada, all contributions, premium payments, and other payments, expenses and reimbursements required to be made by the Company or any of its Subsidiaries by applicable Law or regulation or by any plan document or other contractual undertaking, have been timely made (except where the Company’s failure to timely make such contributions or pay such premiums would not result in any material liability, penalty or tax), or have been properly accrued and accurately reflected on the Company’s financial statements.
(vi) Each Company Employee Benefit Plan ishas been established, maintained and administered in compliance, in all material respects, with all applicable provisions of ERISA, the Code, all other Laws and regulations applicable to such Company Employee Benefit Plan, and neither the Purchaser terms applicable to such Company Employee Benefit Plan. There is not now, nor do any circumstances exist that could give rise to, any requirement for the posting of security by the Company or any Subsidiary of its Subsidiaries with respect to a Company Employee Benefit Plan or the imposition of any lien on the assets of the Company or any of its Subsidiaries under ERISA, the Code or other applicable Law.
(vii) Neither the Company, nor any of its Subsidiaries, nor any of their respective ERISA Affiliates sponsorshas ever maintained, maintains, contributes sponsored or contributed to, is required or had an obligation to maintain, sponsor or contribute to, or otherwise has or could reasonably be expected to have had any current actual or contingent Liability under liability or obligation with respect to, and no Company Employee Benefit Plan currently is, (i) a “defined benefit plan” (as defined in Section 414(j) of the Code), a “multiemployer plan” (as defined in Section 3(373(35) of ERISA, (ii) or a “multiple employer plan” (as described in Section 413(c) of the Code) or is otherwise pension plan subject to the funding standards of Section 302 or Title IV of ERISA or Section 412 of the Code. To the Purchaser’s Knowledge, no Purchaser Benefit Plan will become (iii) a multiple employer plan with respect to any Purchaser Entity immediately after the Closing Date. Neither the Purchaser nor any Subsidiary currently maintains or has ever maintained, or is required currently or has ever been required to contribute to or otherwise participate in, a multiple employer welfare arrangement or voluntary employees’ beneficiary association “multiemployer plan” as defined in Section 501(c)(93(37) of ERISA or Section 414(f) of the Code or (iv) a “multiple employer plan” within the meaning of Section 210(a) of ERISA or Section 413(c) of the Code. For purposes Neither the Company nor any of its ERISA Affiliates has any actual or contingent liability under Title IV of ERISA, and no condition exists, other than as a result of the transactions contemplated by this Agreement, that presents a risk to the Company or any of its ERISA Affiliates of incurring any such liability.
(viii) With respect to any Company Employee Benefit Plan that is maintained for the benefit of employees, consultants or directors outside of the United States (each such Company Employee Benefit Plan, a “Non-US Company Plan”), (A) if intended to qualify for special tax treatment, the Non-US Company Plan meets the requirements for such treatment in all material respects, (B) the financial statements of the Company and its Subsidiaries accurately reflect in all material respects the Non-US Company Plan liabilities and accruals for contributions required to be paid to the Non-US Company Plans, in accordance with GAAP, and (C) there have not occurred, nor are there continuing, any transactions or breaches of fiduciary duty under any Law or regulation in connection with a Non-US Company Plan which could have a Material Adverse Effect on (1) any Non-US Company Plan or (2) the condition of the Company or any of its Subsidiaries.
(ix) Neither the Company nor any of its Subsidiaries, nor any of their respective ERISA AffiliateAffiliates, has engaged in any transaction described in Section 4069 or Section 4204 or 4212(c) of ERISA.
(x) Section 3.1(j)(x) of the Company Disclosure Letter sets forth each Company Employee Benefit Plan (or other arrangement) under which the execution and delivery of this Agreement or the consummation of the transactions contemplated hereby could (either alone or in connection with any other event, condition or circumstance): (i) result in, cause the accelerated vesting, funding or delivery of, or increase the amount or value of, any payment or benefit to any current or former employee, officer, consultant or director of the Company or any of its Subsidiaries, (ii) result in the payment or provision (whether in connection with any termination of employment or otherwise) of any “excess parachute payment” means, within the meaning of Section 280G of the Code with respect to any Personcurrent or former employee, consultant or contractor of the Company or any Person of its Subsidiaries; (iii) limit the right of the Company or entity (whether any of its Subsidiaries to amend, merge or not incorporated) that is under common control terminate any Company Employee Benefit Plan or treated as one employer under Section 4001(b)(1) of ERISA or Section 414(b), (c), (m) trust; or (oiv) give rise to the payment of any amount that would not be deductible by reason of Section 162(m) of the Code.
(xi) No Company Employee Benefit Plan provides for a tax gross-up or any similar payments or benefits with respect to the excise tax imposed under Section 4999 of the Code or the tax or penalties imposed under Section 409A of the Code.
(xii) To the Company’s knowledge, none of the Company, its Subsidiaries nor any other Person, including any fiduciary, has engaged in any “prohibited transaction” (as defined in Section 4975 of the Code or Section 406 of ERISA), which would reasonably be expected to subject any of the Company Employee Benefit Plans or their related trusts, the Company, any of its Subsidiaries or any Person that the Company or any of its Subsidiaries has an obligation to indemnify, to any material tax or penalty imposed under Section 4975 of the Code or Section 502 of ERISA.
(xiii) There are no pending or, to the Company’s knowledge, threatened, claims (other than routine claims for benefits in the ordinary course), lawsuits or arbitrations which have been asserted or instituted by any current or former employee or consultant of the Company or its Subsidiaries, and to the Company’s knowledge, no set of circumstances exists which may reasonably give rise to a claim or lawsuit against the Company Employee Benefit Plans, any fiduciaries thereof with respect to their duties to the Company Employee Benefit Plans or the assets of any of the trusts under any of the Company Employee Benefit Plans which could reasonably be expected to result in any material liability of the Company or any of its Subsidiaries. There are no outstanding assessments, penalties, fines, liens, charges, surcharges, or other amounts due or owing pursuant to any workplace safety and insurance legislation, and neither the Company nor any of its Subsidiaries have been reassessed in any material respect under such legislation during the past three (3) years and no audit of the Company or any of its Subsidiaries is currently being performed pursuant to any applicable workplace safety and insurance legislation. There are no pending claims or, to the knowledge of the Company, potential claims which may materially adversely affect the Company’s accident cost experience in respect of the business of the Company or any Subsidiary of the Company.
(xiv) Neither the Company nor any of its Subsidiaries has any liability for life insurance, death or medical benefits to current or former employees or beneficiaries or dependents thereof, except for health continuation coverage as required by Section 4980B of the Code or Part 6 of Title I of ERISA or other applicable Law.
(xv) Each Company Employee Benefit Plan that is a “nonqualified deferred compensation plan” (within the meaning of Section 409A(d)(1) of the Code) subject to Section 409A of the Code has been operated and administered, in all material respects, in compliance with Section 409A of the Code and any guidance issued by the Department of Treasury or the IRS thereunder, to the extent applicable to such plan.
(xvi) All Company Options were granted at an exercise price at least equal to the fair market value (within the meaning of Section 409A of the Code and the regulations promulgated thereunder) of a Company Share on the date of grant and no Company Option has been extended or amended, and no Company Option has been repriced, in each case since its original date of grant.
Appears in 2 contracts
Sources: Arrangement Agreement (Nabors Industries LTD), Arrangement Agreement (Tesco Corp)
Benefit Plans. (ia) Set forth on Schedule 3.19(a3.19
(a) is hereto lists all existing employee benefit plans (as defined in Section 3 (3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")), in which Employees or former employees of Superior currently participate (the "Plans"). Seller has provided or will provide to Purchaser a true and complete list summary description of each Plan.
(b) Each Plan is and has been in substantial compliance, in form and operation, in all material Benefit Plan of the Purchaser respects with all applicable laws and its Subsidiaries (each, a “Purchaser Benefit Plan”). With respect to each Purchaser Benefit Plan, there are no funded benefit obligations for which contributions have not has been materially made or properly accrued and there are no administered in all material unfunded benefit obligations that have not been accounted for by reserves, or otherwise properly footnoted respects in accordance with GAAP on its terms. Superior has not incurred any liability with respect to a Plan including, without limitation, under ERISA (including, without limitation, Title I or Title IV of ERISA, other than liability for premiums due to the Purchaser Financials. Except as set forth on Schedule 3.19(aPension Benefit Guaranty Corporation ("PBGC")), neither the Purchaser nor any Subsidiary Code or other applicable law, which has not been satisfied in full, and, to the knowledge of the respective managements of Seller and Superior, no event has occurred, and there exists no known condition or set of circumstances, which could result in the past been imposition of any liability with respect to a member Plan, including, without limitation, under ERISA (including, without limitation, Title I or Title IV of a “controlled group” for purposes of Section 414(bERISA), (c), (m) the Code or (o) other applicable law with respect to the Plan. To the knowledge of the Code other than with the Purchaser or another Subsidiaryrespective managements of Superior and Seller, nor does the Purchaser or any Subsidiary have any Liability no event has occurred and no condition exists with respect to any collectively-bargained for plans, whether or not subject to the provisions of ERISA.
(ii) Each Purchaser Benefit Plan in all material respects is and has been operated in compliance with all applicable Laws in all material respects, including ERISA and the Code. Each Purchaser Benefit Plan which is intended likely to be “qualified” subject Purchaser, directly or indirectly (through an indemnification agreement or otherwise), to any material liability (including, without limitation, liability for taxes, breach of fiduciary duty, or for a "prohibited transaction" within the meaning of Section 406 of ERISA or Section 4975 of the Code). There is no action, suit, or claim (other than routine claims for benefits in the ordinary course) with respect to any Plan pending or threatened which is reasonably likely to have a Material Adverse Effect. No Plan is currently under investigation or audit by any governmental agency and, to the knowledge of Seller's management, no such investigation or audit is contemplated or under consideration. Each Plan intended to be a qualified plan under Section 401(a) of the Code (iis so qualified and a favorable determination letter as to qualification under Section 401(a) of the Code has been issued and the related trust has been determined by the IRS to be so qualified (or is based on a prototype plan which has received a favorable opinion letter) during the period from its adoption to the date of this Agreement and (ii) is funded through a trust exempt from taxation under Section 501(a) of the Code. To the Knowledge of the Purchaser, no fact exists which could adversely affect the qualified status of such Purchaser Benefit Plans or the exempt status of such trusts.
(iiic) With respect Superior has no outstanding commitments to each Purchaser Benefit Planprovide or to cause to be provided any severance or other post-employment benefit, the Purchaser salary continuation, termination, disability, death, retirement, health or medical benefit or similar benefit to any person (including, without limitation, any Employee or former employee) that either has made available to the Seller accurate and complete copies, if applicable, of: (i) all Purchaser Benefit Plan documents and agreements and related trust agreements or annuity Contracts (including any amendments, modifications or supplements thereto); (ii) all summary plan descriptions and material modifications thereto; (iii) the three (3) most recent Forms 5500, if applicable, and annual report, including all schedules thereto; (iv) the most recent annual and periodic accounting of plan assets; (v) the three (3) most recent nondiscrimination testing reports; (vi) the most recent determination letter received from the IRS, if any; (vii) the most recent actuarial valuation; and (viii) all material written communications between the Purchaser or any Subsidiary or any Purchaser Benefit Plan and any Governmental Authority and relating to a Purchaser Benefit Plan within six (6) years preceding the date of this Agreement.
(iv) With respect to each Purchaser Benefit Plan: (i) such Purchaser Benefit Plan has not been administered and enforced in all material respects in accordance with its terms, the Code and ERISA; (ii) neither the Purchaser nor any Subsidiary nor any employee, officer or director thereof that is a fiduciary (under ERISA) with respect to such Purchaser Benefit Plan has breached any of its fiduciary responsibilities, obligations or duties imposed on it by ERISA; (iii) no Action is pending or threatened in writing (other than routine claims for benefits arising reflected in the ordinary course of administrationSuperior Financial Statements or is not included in any Plan disclosed in Schedule 3.19(a); (iv) nothing has occurred . All contributions and premium payments required to have been made or accrued under or with respect to any Purchaser Benefit Plan that has subjected have been timely made or accrued. Except as set forth in Schedules 3.19(c) and 5.4(e), the Purchaser or any Subsidiary consummation of the transactions contemplated hereby will not give rise to any material penalty under Section 502 of ERISA right to severance, separation or Section 4975 of the Code; and (v) all contributions and premiums due through the Closing Date have been made in all material respects as required under ERISA similar pay or have been fully accrued in all material respects on the Purchaser Financialsbenefits.
(vd) No Purchaser Benefit Plan isSuperior has never maintained, and neither the Purchaser adopted or any Subsidiary established, contributed or any of their respective ERISA Affiliates sponsors, maintains, contributes to, is been required to contribute to, or otherwise has participated or could reasonably be expected been required to have any current or contingent Liability under or with respect toparticipate in, a “defined benefit "multiemployer plan” " (as defined in Section 414(j3(37) of the CodeERISA), . No amount is due as owing from Superior on account of a “"multiemployer plan” " (as defined in Section 3(37) of ERISA) or a “multiple employer plan” (as described in Section 413(c) on account of the Code) or is otherwise subject to Title IV of ERISA or Section 412 of the Code. To the Purchaser’s Knowledge, no Purchaser Benefit Plan will become a multiple employer plan with respect to any Purchaser Entity immediately after the Closing Date. Neither the Purchaser nor any Subsidiary currently maintains or has ever maintained, or is required currently or has ever been required to contribute to or otherwise participate in, a multiple employer welfare arrangement or voluntary employees’ beneficiary association as defined in Section 501(c)(9) of the Code. For purposes of this Agreement, “ERISA Affiliate” means, with respect to any Person, any Person or entity (whether or not incorporated) that is under common control or treated as one employer under Section 4001(b)(1) of ERISA or Section 414(b), (c), (m) or (o) of the Codewithdrawal therefrom.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Superior Financial Corp /Ar/), Stock Purchase Agreement (Superior Financial Corp /Ar/)
Benefit Plans. (a) Section 4.9(a) of the Company Disclosure Schedule sets forth a complete and accurate list of all material Benefit Plans. The Company has delivered or made available to Parent, with respect to each such Benefit Plan (to the extent applicable thereto) copies of (i) Set forth on Schedule 3.19(a) is a true and complete list of each material the plan document, as currently in effect, or, if such Benefit Plan of the Purchaser and its Subsidiaries (eachis not in writing, a “Purchaser written description of such Benefit Plan”). With ; (ii) the most recent annual report (Form 5500 series and all schedules thereto) filed with respect to each Purchaser 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 determination, opinion or advisory letter issued by the IRS with respect to such Benefit Plan; and (v) any governmental advisory opinions, rulings, compliance statements and closing agreements (other than determination, opinion or advisory letters issued by the IRS) issued during the last three (3) years with respect to such Benefit Plan, there are no funded benefit obligations for which contributions and pending requests related to any such advisory opinion, rulings, compliance statements or closing agreements.
(b) Except as would not, individually or in the aggregate, have not a Company Material Adverse Effect: (i) each Benefit Plan has been materially made or properly accrued maintained and there are no material unfunded benefit obligations that have not been accounted for by reserves, or otherwise properly footnoted administered in accordance with GAAP on its terms and in compliance with applicable Law; (ii) to the Purchaser Financials. Except as set forth on Schedule 3.19(a)knowledge of Company, neither none of the Purchaser nor Company, any Subsidiary of its Subsidiaries or any other Person has engaged in a prohibited transaction, within the past been a member of a “controlled group” for purposes meaning of Section 414(b), (c), (m) 406 of ERISA or (o) Section 4975 of the Code other than with the Purchaser or another SubsidiaryCode, nor does the Purchaser or any Subsidiary have any Liability for which an exemption is not available with respect to any collectively-bargained for plans, whether Benefit Plan; (iii) all contributions due from the Company or not subject any of its Subsidiaries to the provisions Benefit Plans on or before the Closing Date have been timely paid or properly accrued for on the Company’s financial statements; and (iv) neither the Company nor any of its Subsidiaries has incurred a Tax or penalty imposed by Section 4980F of the Code or Section 502 of ERISA.
(iic) Each Purchaser Benefit Plan in all material respects is and has been operated in compliance with all applicable Laws in all material respects, including ERISA and the Code. Each Purchaser Benefit Plan which that is intended to be “qualified” within the meaning of Section qualified under section 401(a) of the Code (i) is the subject of an unrevoked favorable determination letter from the IRS, (ii) has been determined a request for such a letter pending with the IRS or has remaining a period of time under the Code or applicable Treasury regulations or IRS pronouncements in which to request, and make any amendments necessary to obtain, such a letter from the IRS, or (iii) is a prototype or volume submitter plan entitled, under applicable IRS guidance, to rely on the favorable opinion or advisory letter issued by the IRS to be so qualified (the sponsor of such prototype or is based on a prototype plan volume submitter plan. To the knowledge of the Company, nothing has occurred which has received a favorable opinion letter) during resulted or which could reasonably be expected to result in the period from its adoption to loss of the date qualification of this Agreement and (ii) is funded through a trust exempt from taxation any such Benefit Plan under Section 501(a401(a) of the Code. To Code or which requires or would reasonably be expected to require action under the Knowledge employee plans compliance resolution programs of the Purchaser, no fact exists which could adversely affect the qualified status of IRS to preserve such Purchaser Benefit Plans or the exempt status of such trustsqualification.
(iiid) No Benefit Plan is subject to Section 412 of the Code or Section 302 or Title IV of ERISA, and neither the Company nor any ERISA Affiliate has any material liability with respect to any “employee benefit plan” within the meaning of Section 3(3) of ERISA that is subject to Section 412 of the Code or Section 302 or Title IV of ERISA. No Benefit Plan is a “multiemployer plan” within the meaning of Section 3(37) of ERISA (a “Multiemployer Plan”) and neither the Company nor any ERISA Affiliate has any material liability with respect to any Multiemployer Plan.
(e) With respect to each Purchaser Benefit Plan, the Purchaser has made available to the Seller accurate and complete copies, if applicable, of: (i) all Purchaser Benefit Plan documents and agreements and related trust agreements or annuity Contracts (including any amendments, modifications or supplements thereto); (ii) all summary plan descriptions and material modifications thereto; (iii) the three (3) most recent Forms 5500, if applicable, and annual report, including all schedules thereto; (iv) the most recent annual and periodic accounting of plan assets; (v) the three (3) most recent nondiscrimination testing reports; (vi) the most recent determination letter received from the IRS, if any; (vii) the most recent actuarial valuation; and (viii) all material written communications between the Purchaser or any Subsidiary or any Purchaser Benefit Plan and any Governmental Authority and relating to a Purchaser Benefit Plan within six (6) years preceding the date of this Agreement.
(iv) With respect to each Purchaser Benefit Plan: (i) such Purchaser Benefit Plan has been administered and enforced in all material respects in accordance with its terms, the Code and ERISA; (ii) neither the Purchaser nor any Subsidiary nor any employee, officer or director thereof that is a fiduciary (under ERISA) with respect to such Purchaser Benefit Plan has breached any of its fiduciary responsibilities, obligations or duties imposed on it by ERISA; (iii) no Action is pending or threatened in writing (other than routine claims for benefits arising in the ordinary course of administration); (iv) nothing has occurred with respect to any Purchaser Benefit Plan that has subjected the Purchaser or any Subsidiary to any material penalty under Section 502 of ERISA or Section 4975 of the Code; and (v) all contributions and premiums due through the Closing Date have been made in all material respects as required under ERISA or have been fully accrued in all material respects on the Purchaser Financials.
(v) No Purchaser Benefit Plan is, and neither the Purchaser or any Subsidiary or any of their respective ERISA Affiliates sponsors, maintains, contributes to, is required to contribute to, or otherwise has or could reasonably be expected to have any current or contingent Liability under or with respect to, a “defined benefit plan” (as defined in Section 414(j) of the Code), a “multiemployer plan” (as defined in Section 3(37) of ERISA) or a “multiple employer plan” (as described in Section 413(c) of the Code) or is otherwise subject to Title IV of ERISA or Section 412 of the Code. To : (i) no application for a funding waiver or an extension of any amortization period pursuant to Section 412, Section 430 or Section 431 of the Purchaser’s Knowledge, no Purchaser Benefit Plan will become a multiple employer plan Code has been made with respect to such Benefit Plan; (ii) the Pension Benefit Guaranty Corporation (“PBGC”) has not instituted proceedings nor, to the knowledge of the Company, is there a reasonable basis for the commencement of any Purchaser Entity immediately after such proceeding by the Closing DatePBGC; and (iii) neither the Company nor any ERISA Affiliate has incurred any liability to the PBGC that will not be satisfied prior to the Effective Time, other than required premium payments to the PBGC that are not yet due.
(f) There is no pending or, to the knowledge of the Company, threatened Action relating to the Benefit Plans which is reasonably likely to result in material liability, and, to the knowledge of the Company, there is no reasonable basis for any such Action. Neither the Purchaser Company nor any Subsidiary currently maintains of its Subsidiaries has any material obligations for medical or life insurance benefits subsequent to termination of employment to employees or their beneficiaries under any Benefit Plan or collective bargaining agreement except (i) as required by applicable Laws, (ii) the continuation of coverage through the month of termination if required pursuant to such Benefit Plan, (iii) disability benefits attributable to disabilities occurring prior to termination of employment with the Company and its Subsidiaries, and (iv) conversion rights.
(g) Neither the execution of this Agreement, the adoption of this Agreement by the Company’s stockholders, nor the consummation of the transactions contemplated hereby, whether individually or in combination with any other event (regardless of whether that other event has ever maintainedoccurred or will occur), will (i) entitle any employees of the Company or is required currently any of its Subsidiaries to severance pay or has ever been required any increase in severance pay upon any termination of employment after the date hereof, (ii) accelerate the time of payment or vesting or result in any payment or funding (through a grantor trust or otherwise) of or increase in compensation or benefits under any of the Benefit Plans, (iii) result in payments under any of the Benefit Plans or any Contract or arrangement that would not be deductible or which deduction will be deferred under Section 162, Section 404 or Section 280G of the Code or would reimburse any Person for any excise or additional Taxes under Section 4999 or (iv) result in the payment of any “excess parachute payments” within the meaning of Section 280G of the Code (without regard to contribute to or otherwise participate in, a multiple employer welfare arrangement or voluntary employees’ beneficiary association as defined the exception set forth in Section 501(c)(9280G(b)(4) of the Code. For purposes ).
(h) Except as would not, individually or in the aggregate, have a Company Material Adverse Effect, each Benefit Plan subject to the laws of this Agreementany jurisdiction outside of the United States (i) if intended to qualify for special tax treatment, “meets all requirements for such treatment, (ii) does not have any unfunded liabilities determined in accordance with GAAP that have not been properly accrued on the Company’s financial statements or that will not be offset by insurance, and (iii) if required to be registered, has been registered with the appropriate regulatory authorities and has been maintained in good standing with the appropriate regulatory authorities.
(i) Each Employee Benefit Plan that constitutes a nonqualified deferred compensation plan within the meaning of Section 409A of the Code has been timely amended to comply with Section 409A of the Code and applicable guidance thereunder, including but not limited the final regulations promulgated thereunder.
(j) None of the assets of any Benefit Plan include any capital stock or other securities issued by the Company or any ERISA Affiliate” means, with respect to any Person, any Person or entity (whether or not incorporated) that is under common control or treated as one employer under Section 4001(b)(1) of ERISA or Section 414(b), (c), (m) or (o) of the Code.
Appears in 1 contract
Sources: Merger Agreement (Intermec, Inc.)
Benefit Plans. (ia) Set forth on Schedule 3.19(a4.19(a) is a true and complete list of each material Benefit Plan of the Purchaser and its Subsidiaries a Target Company (each, a “Purchaser Company Benefit Plan”). With respect to each Purchaser Target Company Benefit Plan, there are no funded benefit obligations for which contributions have not been materially made or properly accrued and there are no material unfunded benefit obligations that have not been accounted for by reserves, or otherwise properly footnoted in accordance with GAAP on the Purchaser Company Financials. Except as set forth on Schedule 3.19(a), neither the Purchaser nor any Subsidiary No Target Company is or has in the past been a member of a “controlled group” for purposes of Section 414(b), (c), (m) or (o) of the Code other than with the Purchaser or another SubsidiaryCode, nor does the Purchaser or any Subsidiary Target Company have any Liability with respect to any collectively-bargained for plans, whether or not subject to the provisions of ERISA. No statement, either written or oral, has been made by any Target Company to any Person with regard to any Company Benefit Plan that was not in accordance with the Company Benefit Plan in any material respect.
(iib) Each Purchaser Company Benefit Plan in all material respects is and has been operated at all times in compliance with all applicable Laws in all material respects, including ERISA and the Code. Each Purchaser Company Benefit Plan which is intended to be “qualified” within the meaning of Section 401(a) of the Code (i) has been determined by the IRS to be so qualified (or is based on a prototype plan which has received a favorable TABLE OF CONTENTS opinion letter) during the period from its adoption to the date of this Agreement and (ii) is funded through a its related trust has been determined to be exempt from taxation under Section 501(a) of the CodeCode or the Target Companies have requested an initial favorable IRS determination of qualification and/or exemption within the period permitted by applicable Law. To the Knowledge of the Purchaser, no No fact exists which could adversely affect the qualified status of such Purchaser Company Benefit Plans or the exempt status of such trusts.
(iiic) With respect to each Purchaser Target Company Benefit PlanPlan which covers any current or former officer, director, consultant or employee (or beneficiary thereof) of a Target Company, the Company has provided to Purchaser has made available to the Seller accurate and complete copies, if applicable, of: (i) all Purchaser Company Benefit Plan documents texts and agreements and related trust agreements or annuity Contracts (including any amendments, modifications or supplements thereto); (ii) all summary plan descriptions and material modifications thereto; (iii) the three (3) most recent Forms 5500, if applicable, and annual report, including all schedules thereto; (iv) the most recent annual and periodic accounting of plan assets; (v) the three (3) most recent nondiscrimination testing reports; (vi) the most recent determination letter received from the IRS, if any; (vii) the most recent actuarial valuation; and (viii) all material written communications between the Purchaser or any Subsidiary or any Purchaser Benefit Plan and with any Governmental Authority and relating to a Purchaser Benefit Plan within six (6) years preceding the date of this AgreementAuthority.
(ivd) With respect to each Purchaser Target Company Benefit Plan: (i) such Purchaser Company Benefit Plan has been administered and enforced in all material respects in accordance with its terms, the Code and ERISA; (ii) neither the Purchaser nor any Subsidiary nor any employee, officer or director thereof that is a no breach of fiduciary (under ERISA) with respect to such Purchaser Benefit Plan duty has breached any of its fiduciary responsibilities, obligations or duties imposed on it by ERISAoccurred; (iii) no Action is pending pending, or to the Company’s Knowledge, threatened in writing (other than routine claims for benefits arising in the ordinary course of administration); (iv) nothing has occurred with respect to any Purchaser Benefit Plan that has subjected the Purchaser or any Subsidiary to any material penalty under no prohibited transaction, as defined in Section 502 406 of ERISA or Section 4975 of the Code, has occurred, excluding transactions effected pursuant to a statutory or administration exemption; and (v) all contributions and premiums due through the Closing Date have been made in all material respects as required under ERISA or have been fully accrued in all material respects on the Purchaser Company Financials.
(ve) No Purchaser Company Benefit Plan is, and neither the Purchaser or any Subsidiary or any of their respective ERISA Affiliates sponsors, maintains, contributes to, is required to contribute to, or otherwise has or could reasonably be expected to have any current or contingent Liability under or with respect to, a “defined benefit plan” (as (as defined in Section 414(j) of the Code), a “multiemployer plan” (as (as defined in Section 3(37) of ERISA) or a “multiple employer plan” (as (as described in Section 413(c) of the Code) or is otherwise subject to Title IV of ERISA or Section 412 of the Code, and no Target Company has incurred any Liability or otherwise could have any Liability, contingent or otherwise, under Title IV of ERISA and no condition presently exists that is expected to cause such Liability to be incurred. To the Purchaser’s Knowledge, no Purchaser No Company Benefit Plan will become a multiple employer plan with respect to any Purchaser Entity Target Company immediately after the Closing Date. Neither the Purchaser nor any Subsidiary No Target Company currently maintains or has ever maintained, or is required currently or has ever been required to contribute to or otherwise participate in, a multiple employer welfare arrangement or voluntary employees’ beneficiary association as defined in Section 501(c)(9) of the Code. For purposes of this Agreement, “ERISA Affiliate” means, .
(f) There is no arrangement under any Company Benefit Plan with respect to any Person, employee that would result in the payment of any Person amount that by operation of Sections 280G or entity (whether or not incorporated) that is under common control or treated as one employer under Section 4001(b)(1162(m) of the Code would not be deductible by the Target Companies and no arrangement exists pursuant to which a Target Company will be required to “gross up” or otherwise compensate any person because of the imposition of any excise tax on a payment to such person.
(g) With respect to each Target Company Benefit Plan which is a “welfare plan” (as described in Section 3(1) of ERISA): (i) no such plan provides medical or death benefits with respect to current or former employees of a Target Company beyond their termination of employment (other than coverage mandated by Law, which is paid solely by such employees); and (ii) there are no reserves, assets, surplus or prepaid premiums under any such plan. Each Target Company has complied with the provisions of Section 601 et seq. of ERISA or and Section 414(b), (c), (m) or (o) 4980B of the Code.
(h) The consummation of the transactions contemplated by this Agreement and the Ancillary Documents will not: (i) entitle any individual to severance pay, unemployment compensation or other benefits or compensation; (ii) accelerate the time of payment or vesting, or increase the amount of any compensation due, or in respect of, any individual; or (iii) result in or satisfy a condition to the payment of compensation that would, in combination with any other payment, result in an “excess parachute payment” within the meaning of Section 280G of the Code. No Target Company has incurred any Liability for any Tax imposed under Chapter 43 of the Code or civil liability under Section 502(i) or (l) of ERISA.
Appears in 1 contract
Sources: Merger Agreement (Integrated Wellness Acquisition Corp)
Benefit Plans. (a) Schedule 4.6(a) lists: (i) Set forth on Schedule 3.19(aeach Employee Benefit Plan contributed to, sponsored or maintained by Seller as of the date hereof, or for which it has any Liability, in each case, for the benefit of any Prospective Employee; and (ii) is a true and complete list of each material Benefit Plan of the Purchaser and its Subsidiaries employment agreement, including any material individual benefit arrangement or policy (each, a “Purchaser Benefit Plan”). With respect to each Purchaser Benefit Plan, there are no funded benefit obligations for which contributions have not been materially made other than any arrangement or properly accrued and there are no material unfunded benefit obligations policy that have not been accounted for by reserves, or otherwise properly footnoted in accordance with GAAP on the Purchaser Financials. Except as set forth on Schedule 3.19(ais mandatory under applicable Legal Requirements), neither the Purchaser nor any Subsidiary or has in the past been a member of a “controlled group” for purposes of Section 414(b), (c), (m) or (o) of the Code other than with the Purchaser or another Subsidiary, nor does the Purchaser or any Subsidiary have any Liability with respect to any Prospective Employee (collectively, the “Seller Plans”). Seller has delivered to Purchaser, with respect to each Seller Plan, correct and complete copies, where applicable, of (i) the most recent Summary Plan Description (including all Summaries of Material Modification), and (ii) the most recent IRS determination or opinion letter applicable to any tax-bargained for plans, whether or not subject to the provisions of ERISAqualified plan from which Purchaser’s 401(k) Plan will accept an eligible rollover distribution.
(iib) Each Purchaser Benefit Plan Neither the execution and delivery of this Agreement nor the consummation of the Transactions will result in all material respects is and has been operated in compliance with all applicable Laws in all material respectsany payment (including severance, including ERISA and the Code. Each Purchaser Benefit Plan which is intended golden parachute, bonus or otherwise) becoming due to any Prospective Employee, other than any such payments to be borne by Seller, in each case assuming compliance by Purchaser and its applicable Affiliates with Article 7 (Employees). There is no amount paid or payable by Seller in connection with the Transactions (either solely as a result thereof or as a result of such Transactions in conjunction with any other event), that has resulted or would reasonably be expected to result, separately or in the aggregate, in the payment of any “qualifiedexcess parachute payment” within the meaning of Section 401(a) 280G of the Code (i) has been determined by the IRS to be so qualified (or is based on a prototype plan which has received a favorable opinion letter) during the period from its adoption to the date any corresponding provisions of this Agreement and (ii) is funded through a trust exempt from taxation under Section 501(a) of the Code. To the Knowledge of the Purchaserstate, no fact exists which could adversely affect the qualified status of such Purchaser Benefit Plans local or the exempt status of such trustsforeign Tax Law).
(iiic) With respect to each Purchaser Benefit Plan, the Purchaser has made available to the Neither Seller accurate and complete copies, if applicable, of: (i) all Purchaser Benefit Plan documents and agreements and related trust agreements nor any other Person that would be or annuity Contracts (including any amendments, modifications or supplements thereto); (ii) all summary plan descriptions and material modifications thereto; (iii) the three (3) most recent Forms 5500, if applicable, and annual report, including all schedules thereto; (iv) the most recent annual and periodic accounting of plan assets; (v) the three (3) most recent nondiscrimination testing reports; (vi) the most recent determination letter received from the IRS, if any; (vii) the most recent actuarial valuation; and (viii) all material written communications between the Purchaser or any Subsidiary or any Purchaser Benefit Plan and any Governmental Authority and relating to a Purchaser Benefit Plan within six (6) years preceding the date of this Agreement.
(iv) With respect to each Purchaser Benefit Plan: (i) such Purchaser Benefit Plan has been administered and enforced in all material respects in accordance considered a single employer with its terms, Seller under the Code and ERISA; (ii) neither the Purchaser nor or ERISA has at any Subsidiary nor any employee, officer or director thereof that is a fiduciary (under ERISA) with respect to such Purchaser Benefit Plan has breached any of its fiduciary responsibilities, obligations or duties imposed on it by ERISA; (iii) no Action is pending or threatened in writing (other than routine claims for benefits arising in the ordinary course of administration); (iv) nothing has occurred with respect to any Purchaser Benefit Plan that has subjected the Purchaser or any Subsidiary to any material penalty under Section 502 of ERISA or Section 4975 of the Code; and (v) all contributions and premiums due through the Closing Date have been made in all material respects as required under ERISA or have been fully accrued in all material respects on the Purchaser Financials.
(v) No Purchaser Benefit Plan is, and neither the Purchaser or any Subsidiary or any of their respective ERISA Affiliates sponsors, maintains, contributes time contributed to, is been required to contribute toto or had any Liability whatsoever (whether direct, indirect, contingent or otherwise has or could reasonably be expected otherwise) pursuant to have a plan subject to Title IV of ERISA, including any current or contingent Liability under or with respect to, a “defined benefit plan” (as defined in Section 414(j) of the Code), a “multiemployer plan” (as defined in Section 3(37) of ERISAERISA that in any such case could result in any Liability to Purchaser.
(d) or a “multiple employer plan” Each Seller Plan that is intended to be qualified under Section 401 (as described in Section 413(ca) of the Code) Code has received a favorable determination letter, or is otherwise subject entitled to Title IV of ERISA or Section 412 of rely on an opinion letter, from the Code. To the PurchaserUnited States Internal Revenue Service with respect to its initial qualification, and, to Seller’s Knowledge, no Purchaser Benefit fact or event has occurred since the date of such determination or opinion letter or letters that would reasonably be expected to adversely affect the qualified status of any such Seller Plan will become a multiple employer plan with respect to or the exempt status of any Purchaser Entity immediately after the Closing Date. Neither the Purchaser nor any Subsidiary currently maintains or has ever maintained, or is related trust.
(e) Except as required currently or has ever been required to contribute to or otherwise participate in, a multiple employer welfare arrangement or voluntary employees’ beneficiary association as defined in Section 501(c)(9) of the Code. For purposes of this Agreement, “ERISA Affiliate” means, with respect to any Person, any Person or entity (whether or not incorporated) that is under common control or treated as one employer under Section 4001(b)(1) 601 et seq. of ERISA ERISA, no Seller Plan covering Prospective Employees located in the United States provides material health, life or Section 414(b), (c), (m) disability insurance following retirement or (o) other termination of the Codeemployment.
Appears in 1 contract
Sources: Asset Purchase Agreement (Forma Therapeutics Holdings, Inc.,)
Benefit Plans. (ia) Set forth on Schedule 3.19(a) is a true and complete list of each material Benefit Plan of the Purchaser and its Subsidiaries (eachNeither REIT I nor any REIT I Subsidiary has ever maintained, a “Purchaser sponsored or contributed to any Benefit Plan”). With respect to each Purchaser Benefit Plan, there are no funded benefit obligations for which contributions have not been materially made or properly accrued and there are no material unfunded benefit obligations that have not been accounted for by reserves, or otherwise properly footnoted in accordance with GAAP on the Purchaser Financials. Except as set forth on Schedule 3.19(a), neither the Purchaser Neither REIT I nor any REIT I Subsidiary has any contract, plan or has in the past been a member of a “controlled group” for purposes of Section 414(b), (c), (m) or (o) of the Code other than with the Purchaser or another Subsidiary, nor does the Purchaser or any Subsidiary have any Liability with respect to any collectively-bargained for planscommitment, whether or not subject legally binding, to the provisions of ERISAcreate any Benefit Plan.
(iib) Each Purchaser Benefit Plan in all material respects is and has been operated in compliance with all applicable Laws in all material respects, including ERISA and the Code. Each Purchaser Benefit Plan which is intended to be “qualified” within the meaning of Section 401(a) of the Code (i) has been determined by the IRS to be so qualified (Except as individually or is based on a prototype plan which has received a favorable opinion letter) during the period from its adoption to the date of this Agreement and (ii) is funded through a trust exempt from taxation under Section 501(a) of the Code. To the Knowledge of the Purchaser, no fact exists which could adversely affect the qualified status of such Purchaser Benefit Plans or the exempt status of such trusts.
(iii) With respect to each Purchaser Benefit Plan, the Purchaser has made available to the Seller accurate and complete copies, if applicable, of: (i) all Purchaser Benefit Plan documents and agreements and related trust agreements or annuity Contracts (including any amendments, modifications or supplements thereto); (ii) all summary plan descriptions and material modifications thereto; (iii) the three (3) most recent Forms 5500, if applicable, and annual report, including all schedules thereto; (iv) the most recent annual and periodic accounting of plan assets; (v) the three (3) most recent nondiscrimination testing reports; (vi) the most recent determination letter received from the IRS, if any; (vii) the most recent actuarial valuation; and (viii) all material written communications between the Purchaser or any Subsidiary or any Purchaser Benefit Plan and any Governmental Authority and relating to a Purchaser Benefit Plan within six (6) years preceding the date of this Agreement.
(iv) With respect to each Purchaser Benefit Plan: (i) such Purchaser Benefit Plan has been administered and enforced in all material respects in accordance with its terms, the Code and ERISA; (ii) neither the Purchaser nor any Subsidiary nor any employee, officer or director thereof that is a fiduciary (under ERISA) with respect to such Purchaser Benefit Plan has breached any of its fiduciary responsibilities, obligations or duties imposed on it by ERISA; (iii) no Action is pending or threatened in writing (other than routine claims for benefits arising in the ordinary course aggregate, have not had and would not reasonably be expected to have REIT I Material Adverse Effect, none of administration); (iv) nothing has occurred with respect to REIT I, any Purchaser Benefit Plan that has subjected the Purchaser or any Subsidiary to any material penalty under Section 502 of ERISA or Section 4975 of the Code; and (v) all contributions and premiums due through the Closing Date have been made in all material respects as required under ERISA or have been fully accrued in all material respects on the Purchaser Financials.
(v) No Purchaser Benefit Plan is, and neither the Purchaser or any REIT I Subsidiary or any of their respective ERISA Affiliates sponsorshas incurred or could incur any obligation or liability with respect to or under any Benefit Plan or other employee benefit plan, maintainsprogram or arrangement (including any agreement, contributes program, policy or other arrangement under which any current or former employee, director or consultant has any present or future right to benefits) which has created or will create any obligation with respect to, is required or has resulted in or will result in any liability to contribute NNN REIT, Merger Sub or any of their respective subsidiaries.
(c) None of REIT I, any REIT I Subsidiaries or any of their respective ERISA Affiliates has ever maintained, contributed to, or participated in, or otherwise has or could reasonably be expected to have any current obligation or contingent Liability under or with respect to, liability in connection with: (i) a “defined benefit pension plan” (as defined in under Section 414(j3(2) of ERISA that is subject to Title IV or Section 302 of ERISA or Section 412 or 4971 of the Code), (ii) a “multiemployer plan” (as defined in Section 3(37) of ERISA), (iii) a “multiple employer welfare arrangement” (as defined in Section 3(40) of ERISA), or (iv) a “multiple employer plan” (as described defined in Section 413(c) of the Code).
(d) No amount that could be received (whether in cash or is otherwise subject to Title IV property or the vesting of ERISA or Section 412 property) as a result of the Code. To Merger or any of the Purchaser’s Knowledge, no Purchaser Benefit Plan will become other transactions contemplated hereby (alone or in combination with any other event) by any Person who is a multiple employer plan with respect to “disqualified individual” (as such term is defined in Treasury Regulation Section 1.280G-1) under any Purchaser Entity immediately after the Closing Date. Neither the Purchaser nor any Subsidiary currently maintains or has ever maintained, or compensation arrangement could be characterized as a “parachute payment” (as such term is required currently or has ever been required to contribute to or otherwise participate in, a multiple employer welfare arrangement or voluntary employees’ beneficiary association as defined in Section 501(c)(9280G(b)(1) of the Code. For purposes of this Agreement, “ERISA Affiliate” means, with respect ).
(e) Neither REIT I nor any REIT I Subsidiary is a party to or has any Person, obligation under any Contract otherwise to compensate any Person for excise taxes payable pursuant to Section 4999 of the Code or entity (whether or not incorporated) that is under common control or treated as one employer under for additional taxes payable pursuant to Section 4001(b)(1) of ERISA or Section 414(b), (c), (m) or (o) 409A of the Code.
(f) Neither REIT I nor any REIT I Subsidiary has, or has ever had, any employees.
Appears in 1 contract
Benefit Plans. (ia) Set forth on Schedule 3.19(a) Buyer has performed all obligations required to be performed by it under, is a true not in default or violation of, and complete list has no knowledge of any default or violation by any other party to, each material Benefit Plan of the Purchaser and its Subsidiaries (eachemployee compensation, a “Purchaser Benefit Plan”). With respect to each Purchaser Benefit Planincentive, there are no funded fringe or benefit obligations for which contributions have not been materially made or properly accrued and there are no material unfunded benefit obligations that have not been accounted for by reserves, or otherwise properly footnoted in accordance with GAAP on the Purchaser Financials. Except as set forth on Schedule 3.19(a), neither the Purchaser nor any Subsidiary or has in the past been a member of a “controlled group” for purposes of Section 414(b), (c), (m) or (o) of the Code other than with the Purchaser or another Subsidiary, nor does the Purchaser or any Subsidiary have any Liability with respect to any collectively-bargained for plans, programs, policies, practices, contracts, agreements, commitments or other arrangements (whether or not subject to the provisions of ERISA.
(ii) Each Purchaser Benefit Plan set forth in a written document and including, without limitation, all material respects is and has been operated in compliance with all applicable Laws in all material respects, including ERISA and the Code. Each Purchaser Benefit Plan which is intended to be “qualified” "employee benefit plans" within the meaning of Section 401(a3(3) of the Code (iERISA) has been determined by the IRS to be so qualified (covering any active or is based on a prototype plan which has received a favorable opinion letter) during the period from its adoption to the date former employee, director or consultant of this Agreement and (ii) is funded through a trust exempt from taxation under Section 501(a) of the Code. To the Knowledge of the PurchaserBuyer, no fact exists which could adversely affect the qualified status of such Purchaser Benefit Plans or the exempt status of such trusts.
(iii) With respect to each Purchaser Benefit Plan, the Purchaser has made available to the Seller accurate and complete copies, if applicable, of: (i) all Purchaser Benefit Plan documents and agreements and related trust agreements or annuity Contracts (including any amendments, modifications or supplements thereto); (ii) all summary plan descriptions and material modifications thereto; (iii) the three (3) most recent Forms 5500, if applicable, and annual report, including all schedules thereto; (iv) the most recent annual and periodic accounting of plan assets; (v) the three (3) most recent nondiscrimination testing reports; (vi) the most recent determination letter received from the IRS, if any; (vii) the most recent actuarial valuation; and (viii) all material written communications between the Purchaser or any Buyer Subsidiary or any Purchaser trade or business (whether or not incorporated) which is a Buyer Affiliate (the "Buyer Employee Benefit Plan Plans"), except for such failures to perform, defaults and any Governmental Authority and relating to violations as would not have a Purchaser Benefit Plan within six (6) years preceding the date of this Agreement.
(iv) With respect to each Purchaser Benefit Plan: (i) Buyer Material Adverse Effect. Each such Purchaser Buyer Employee Benefit Plan has been established, maintained and administered and enforced in all material respects in accordance with its termsterms and with the requirements prescribed by any and all statutes, orders, rules and regulations (foreign or domestic), including but not limited to ERISA and the Code and ERISA; (ii) neither the Purchaser nor any Subsidiary nor any employeeCode, officer or director thereof that is a fiduciary (under ERISA) with respect which are applicable to such Purchaser Buyer Employee Benefit Plan has breached any of its fiduciary responsibilitiesPlans, obligations except for such violations as would not have a Buyer Material Adverse Effect. No suit, action, claim or duties imposed on it by ERISA; other litigation (iii) no Action is pending or threatened in writing (other than routine excluding claims for benefits arising incurred in the ordinary course of administration); (ivBuyer Employee Benefit Plan activities) nothing has occurred been brought, or to the knowledge of Buyer is threatened, against or with respect to any Purchaser such Buyer Employee Benefit Plan that has subjected and there are no audits, inquiries or proceedings pending or, to the Purchaser knowledge of Buyer, threatened by the Internal Revenue Service or any Subsidiary United States Department of Labor with respect to any material penalty under Section 502 of ERISA or Section 4975 of the Code; and (v) all contributions and premiums due through the Closing Date Buyer Employee Benefit Plans that would have been made in all material respects as required under ERISA or have been fully accrued in all material respects on the Purchaser Financialsa Buyer Material Adverse Effect.
(vb) No Purchaser Benefit Plan isNone of Buyer, and neither the Purchaser any Buyer Subsidiary, or any Subsidiary Buyer Affiliate maintains or has at any of their respective ERISA Affiliates sponsorstime ever maintained, maintainsestablished, contributes tosponsored, is required to contribute toparticipated in, or otherwise has or could reasonably be expected contributed to have any current or contingent Liability under or with respect to, a “defined benefit plan” (as defined in Section 414(j) of the Code), a “multiemployer plan” (as defined in Section 3(37) of ERISA) or a “multiple employer plan” (as described in Section 413(c) of the Code) or is otherwise plan subject to Title IV of ERISA or Section 412 of the Code. To the Purchaser’s Knowledge, Code and at no Purchaser Benefit Plan will become a multiple employer plan with respect time has Buyer or any Buyer Subsidiary contributed to any Purchaser Entity immediately after the Closing Date. Neither the Purchaser nor any Subsidiary currently maintains or has ever maintained, or is required currently or has ever been required requested to contribute to or otherwise participate in, a multiple employer welfare arrangement or voluntary employees’ beneficiary association any "multiemployer plan," as such term is defined in ERISA Section 501(c)(93(37) or to any plan described in Section 413 of the Code. For purposes None of this AgreementBuyer, “ERISA Affiliate” means, with respect any Buyer Subsidiary or any officer or director of Buyer or any Buyer Subsidiary is subject to any Personliability or penalty under Section 4975 through 4980B of the Code or Title I of ERISA.
(c) None of the Buyer Employee Benefit Plans promises or provides retiree medical or other retiree welfare benefits to any person except as required by applicable law, and neither Buyer nor any Person Buyer Subsidiary has represented, promised or entity contracted (whether in oral or not incorporatedwritten form) that is under common control to provide such retiree benefits to any employee, former employee, director, consultant or treated as one employer under Section 4001(b)(1) of ERISA or Section 414(b)other person, (c), (m) or (o) of except to the Codeextent required by statute.
Appears in 1 contract
Sources: Agreement and Plan of Merger and Reorganization (Spectrian Corp /Ca/)
Benefit Plans. (ia) Set forth on Schedule 3.19(a4.19(a) is a true and complete list of each material Benefit Plan of the Purchaser and its Subsidiaries a Target Company (each, a “Purchaser Company Benefit Plan”). .
(b) With respect to each Purchaser Company Benefit Plan, there are no funded benefit obligations for which contributions have not been materially made or properly accrued and there are no material unfunded benefit obligations that have not been accounted for by reserves, or otherwise properly footnoted footnoted, in accordance with Italian GAAP or GAAP (as applicable) on the Purchaser Company Financials. Except as set forth on Schedule 3.19(a), neither the Purchaser nor any Subsidiary No Target Company is or has in the past been a member of a “controlled group” for purposes of Section 414(b), (c), (m) or (o) of the Code other than with the Purchaser or another SubsidiaryCode, nor does the Purchaser or any Subsidiary Target Company have any Liability with respect to any collectively-bargained for plans, whether or not subject to the provisions of ERISA. No statement, either written or oral, has been made by any Target Company to any Person with regard to any Company Benefit Plan that was not in accordance with the Company Benefit Plan in any material respect.
(iic) Each Purchaser Company Benefit Plan in all material respects is and has been operated and administered in all material respects in accordance with its terms and in compliance with all applicable Laws in all material respectsLaws, including ERISA and the Code. Each Purchaser Company Benefit Plan which is intended to be “qualified” within the meaning of Section 401(a) of the Code (i) has been determined by the IRS to be so qualified (or is based on a prototype plan which has received a favorable opinion letter) during the period from its adoption to the date of this Agreement and (ii) its related trust is funded through a trust exempt from taxation under Section 501(a) of the CodeCode or the Target Companies have requested an initial favorable IRS determination of qualification and/or exemption within the period permitted by applicable Law. To the Knowledge of the PurchaserCompany’s Knowledge, no fact exists which could reasonably be expected to adversely affect the qualified status of such Purchaser Company Benefit Plans or the exempt status of such trusts.
(iiid) With respect to each Purchaser Company Benefit PlanPlan which covers any current or former officer, director, consultant or employee (or beneficiary thereof) of a Target Company, the Purchaser Company has made available provided to the Seller SPAC accurate and complete copies, if applicable, of: (i) all Purchaser the Company Benefit Plan documents texts and agreements and agreements, including related trust agreements or annuity Contracts (including any amendments, modifications or supplements thereto); (ii) all the most recent summary plan descriptions and material modifications thereto; (iii) the three (3) most recent Forms 5500, if applicable, and annual report, including all schedules thereto; (iv) the most recent annual and periodic accounting of plan assets; (v) the three (3) most recent nondiscrimination testing reports; (vi) the most recent determination or opinion letter received from the IRS, if any; (vii) the most recent actuarial valuation; and (viii) all material written communications between the Purchaser correspondence or any Subsidiary or any Purchaser Benefit Plan and notices with any Governmental Authority and relating to a Purchaser Benefit Plan received within six the last three (63) years preceding the date of this Agreementyears.
(ive) With respect to each Purchaser Company Benefit Plan: (i) such Purchaser Benefit Plan no breach of fiduciary duty has been administered and enforced in all material respects in accordance with its terms, the Code and ERISAoccurred; (ii) neither the Purchaser nor any Subsidiary nor any employee, officer or director thereof that is a fiduciary (under ERISA) with respect to such Purchaser Benefit Plan has breached any of its fiduciary responsibilities, obligations or duties imposed on it by ERISA; (iii) no Action is pending pending, or to the Company’s Knowledge, threatened in writing (other than routine claims for benefits arising in the ordinary course of administration); (iviii) nothing has occurred with respect to any Purchaser Benefit Plan that has subjected the Purchaser or any Subsidiary to any material penalty under no prohibited transaction, as defined in Section 502 406 of ERISA or Section 4975 of the Code, has occurred, excluding transactions effected pursuant to a statutory or administration exemption; and (viv) all contributions and premiums due through the Closing Date have been made in all material respects as required under ERISA or have been fully accrued in all material respects on the Purchaser Company Financials.
(vf) No Purchaser Company Benefit Plan is, and neither the Purchaser or any Subsidiary or any of their respective ERISA Affiliates sponsors, maintains, contributes to, is required to contribute to, or otherwise has or could reasonably be expected to have any current or contingent Liability under or with respect to, a “defined benefit plan” (as defined in Section 414(j) of the Code), a “multiemployer plan” (as defined in Section 3(37) of ERISA) or a “multiple employer plan” (as described in Section 413(c) of the Code) or is otherwise subject to Title IV of ERISA or Section 412 of the Code. To , and no Target Company has incurred any Liability or otherwise could have any Liability, contingent or otherwise, under Title IV of ERISA and, to the PurchaserCompany’s Knowledge, no Purchaser condition presently exists that is reasonably expected to cause such Liability to be incurred. No Company Benefit Plan will become a multiple employer plan with respect to any Purchaser Entity Target Company immediately after the Closing Date. Neither the Purchaser nor any Subsidiary No Target Company currently maintains or has ever in the past three (3) years maintained, or is required currently or has ever in the past three (3) years been required to contribute to or otherwise participate in, a multiple employer welfare arrangement or voluntary employees’ beneficiary association as defined in Section 501(c)(9) of the Code. For purposes of this Agreement, “ERISA Affiliate” means, .
(g) There is no arrangement under any Company Benefit Plan with respect to any Personemployee that would result in the payment of any amount that by operation of Sections 280G or 162(m) of the Code would not be deductible by the Target Companies and no arrangement exists pursuant to which a Target Company will be required to “gross up” or otherwise compensate any person because of the imposition of any excise tax under Sections 409A or 4999 of the Code on a payment to such person.
(h) With respect to each Company Benefit Plan which is a “welfare plan” (as described in Section 3(1) of ERISA): (i) no such plan provides medical or death benefits with respect to current or former employees of a Target Company beyond their termination of employment (other than group health plan continuing coverage mandated by Law, which is paid solely by such employees, which is a part of the Target Company’s severance plans or arrangements or which is provided under the Target Company’s long-term or short-term disability benefit plans); and (ii) there are no reserves, assets, surplus or prepaid premiums under any such plan. Each Target Company has complied in all material respects with the provisions of Section 601 et seq. of ERISA and Section 4980B of the Code.
(i) The consummation of the transactions contemplated by this Agreement and the Ancillary Documents will not: (i) entitle any individual to severance pay, unemployment compensation or other benefits or compensation; (ii) accelerate the time of payment or vesting, or increase the amount of any compensation due, or in respect of, any Person individual; or entity (whether iii) result in or not incorporated) satisfy a condition to the payment of compensation that is would, in combination with any other payment, result in an “excess parachute payment” within the meaning of Section 280G of the Code. No Target Company has incurred any Liability for any Tax imposed under common control Chapter 43 of the Code or treated as one employer civil liability under Section 4001(b)(1) of ERISA or Section 414(b), (c), (m502(i) or (ol) of ERISA.
(j) Except to the extent required by Section 4980B of the Code or similar state Law, no Target Company provides health or welfare benefits to any former or retired employee or is obligated to provide such benefits to any active employee following such employee’s retirement or other termination of employment or service.
(k) Each Company Benefit Plan that is subject to Section 409A of the Code (each, a “Section 409A Plan”) is indicated as such on Schedule 4.19(k). Each Section 409A Plan has been administered in compliance, and is in documentary compliance with the applicable provisions of Section 409A of the Code, the regulations thereunder and other official guidance issued thereunder, in each case, in all material respects. No Company Options or other equity-based awards have been issued or granted by the Company that are, or are subject to, a Section 409A Plan. No Target Company has any obligation to any employee or other service provider with respect to any Section 409A Plan that may be subject to any Tax under Section 409A of the Code. No payment to be made under any Section 409A Plan is, or to the Knowledge of the Company will be, subject to the penalties of Section 409A(a)(1) of the Code. There is no Contract or plan to which any Target Company is a party or by which it is bound to compensate any employee, consultant or director for penalty taxes paid pursuant to Section 409A of the Code.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Melar Acquisition Corp. I/Cayman)
Benefit Plans. (ia) Set Section 3.17(a) of the Seller Disclosure Schedules sets forth on Schedule 3.19(a) is a true and complete list of each material Purchased Entity Benefit Plan. The VDR Storage Device contains correct and complete copies of each Purchased Entity Benefit Plan of the Purchaser and its Subsidiaries (eachor, if no such copy exists, a “Purchaser written description thereof) and, to the extent applicable, any related trust agreement or other funding instrument and the most recent audited financial statements and actuarial valuation reports relating to such Purchased Entity Benefit Plan”). With respect to each Purchaser Benefit Plan, there are no funded benefit obligations for which contributions have not been materially made or properly accrued and there are no material unfunded benefit obligations that have not been accounted for by reserves, or otherwise properly footnoted in accordance with GAAP on the Purchaser Financials. Except as set forth on Schedule 3.19(a), neither the Purchaser nor any Subsidiary or has in the past been a member of a “controlled group” for purposes of Section 414(b), (c), (m) or (o) of the Code other than with the Purchaser or another Subsidiary, nor does the Purchaser or any Subsidiary have any Liability with respect to any collectively-bargained for plans, whether or not subject to the provisions of ERISA.
(iib) Each Purchaser No Purchased Entity Benefit Plan in all material respects is and has been operated in compliance with all applicable Laws in all material respects, including subject to Title IV of ERISA and the Code. Each Purchaser Benefit Plan which is or intended to be “qualified” qualified within the meaning of Section 401(a) of the Code. Except as would not reasonably be expected, individually or in the aggregate, to be material to the Business and the Purchased Entities, taken as a whole, each Seller Benefit Plan that is intended to be qualified under Section 401(a) of the Code is subject to a favorable determination letter from the IRS, and no event has occurred and no condition exists that could reasonably be expected to adversely affect or result in the revocation of any such determination.
(c) Except as would not reasonably be expected, individually or in the aggregate, to be material to the Business and the Purchased Entities, taken as a whole, (i) each Seller Benefit Plan has been determined by the IRS to be so qualified (or is based on a prototype plan which has received a favorable opinion letter) during the period from established, maintained, funded and operated in compliance with its adoption to the date of this Agreement terms and (ii) is funded through a trust exempt from taxation under Section 501(a) of the Code. To the Knowledge of the Purchaser, no fact exists which could adversely affect the qualified status of such Purchaser Benefit Plans or the exempt status of such trusts.
(iii) With respect to each Purchaser Benefit Plan, the Purchaser has made available to the Seller accurate and complete copies, if applicable, of: (i) all Purchaser Benefit Plan documents and agreements and related trust agreements or annuity Contracts (including any amendments, modifications or supplements thereto)applicable Law; (ii) all summary plan descriptions contributions, distributions, premiums and material modifications theretoexpenses required to be made by Law or by the terms of a Seller Benefit Plan have been timely made; and (iii) there is no pending or, to the three (3) most recent Forms 5500Knowledge of Seller, if applicable, and annual report, including all schedules thereto; (iv) the most recent annual and periodic accounting of plan assets; (v) the three (3) most recent nondiscrimination testing reports; (vi) the most recent determination letter received from the IRS, if any; (vii) the most recent actuarial valuation; and (viii) all material written communications between the Purchaser threatened Proceeding or audit relating to any Subsidiary or any Purchaser Seller Benefit Plan and any Governmental Authority and relating (other than routine claims for benefits).
(d) No Purchased Entity has Liability with respect to (i) a Purchaser Multiemployer Plan, (ii) a plan that is subject to Section 302 or Title IV of ERISA or Section 412, 430 or 4971 of the Code or (iii) a “multiple employer welfare arrangement” (as defined in Section 3(40) of ERISA). No Seller Benefit Plan within six (6) years preceding provides for post-employment or retiree welfare benefits, except to the date extent required by applicable Law. Following the Closing, neither Purchaser nor any Purchased Entity shall have any Liability in respect of any Seller Benefit Plan that is not a Purchased Entity Benefit Plan, except expressly assumed in accordance with Article VI of this Agreement.
(ive) With respect to each Purchaser Benefit Plan: Neither the execution of this Agreement nor the consummation of the Transaction will (either alone or in conjunction with any other event) (i) such Purchaser Benefit Plan result in any payment becoming due to any Business Employee, Former Business Employee or other service provider of the Business with respect to which a Purchased Entity has been administered and enforced in all material respects in accordance with its termsany liability, the Code and ERISA; (ii) neither increase any benefits payable to any Business Employee, Former Business Employee or other service provider of the Purchaser nor any Subsidiary nor any employee, officer or director thereof that is a fiduciary (under ERISA) Business with respect to such Purchaser Benefit Plan which a Purchased Entity has breached any of its fiduciary responsibilitiesliability, obligations or duties imposed on it by ERISA; (iii) no Action is pending or threatened in writing (other than routine claims for benefits arising result in the ordinary course acceleration of administration); the time of payment, funding or vesting of any compensation or benefits to any Business Employee, Former Business Employee or other service provider of the Business with respect to which a Purchased Entity has any liability, (iv) nothing has occurred limit or restrict the right of any Purchased Entity to merge, amend, or terminate any Purchased Entity Benefit Plan or (v) result in any forgiveness of indebtedness to any Business Employee, Former Business Employee or other service provider of the Business with respect to which a Purchased Entity has any Purchaser Benefit Plan that has subjected the Purchaser or any Subsidiary to any material penalty under Section 502 of ERISA or Section 4975 of the Code; and (v) all contributions and premiums due through the Closing Date have been made in all material respects as required under ERISA or have been fully accrued in all material respects on the Purchaser Financialsliability.
(vf) No Purchaser Benefit Plan isamount that could be received (whether in cash or property or the vesting of property), and neither as a result of the Purchaser consummation of the Transaction contemplated hereby (either alone or upon the occurrence of any Subsidiary additional or any of their respective ERISA Affiliates sponsors, maintains, contributes to, is required to contribute to, or otherwise subsequent event) (i) has resulted or could reasonably be expected to have result, individually or in the aggregate (but excluding any current payment pursuant to any Contract or contingent Liability other arrangement entered into by Purchaser or any of its Affiliates), in the payment of any “excess parachute payment” within the meaning of Section 280G of the Code (or any corresponding provision of state, local or foreign income Tax Law) in connection with the Transaction, or (ii) would not be deductible by reason of Section 280G of the Code or would be subject to an excise tax under Section 4999 of the Code.
(g) Except as would not reasonably be expected, individually or with respect toin the aggregate, to be material to the Business and the Purchased Entities, taken as a whole, each Seller Benefit Plan that is subject to the Laws of a jurisdiction outside of the United States or that covers any Business Employee, Former Business Employee or other service provider of the Business residing or working outside the United States (a “Foreign Benefit Plan”), that is required to be registered or approved by any Governmental Entity has been so registered and approved and has been maintained in good standing with applicable requirements of Law, and, if intended to qualify for special Tax treatment, has so qualified for special Tax treatment. No Foreign Benefit Plan is a defined benefit plan” plan (as defined in Section 414(j) of the CodeERISA, whether or not subject to ERISA), seniority premium, termination indemnity, provident fund, gratuity or similar plan or arrangement or has any material unfunded or underfunded liabilities. Except as would not reasonably be expected, individually or in the aggregate, to be material to the Business and the Purchased Entities, taken as a “multiemployer plan” (as defined in Section 3(37) of ERISA) or a “multiple employer plan” (as described in Section 413(c) of the Code) or is otherwise subject whole, all Foreign Benefit Plans that are required to Title IV of ERISA or Section 412 of the Code. To the Purchaser’s Knowledgebe funded, no Purchaser Benefit Plan will become a multiple employer plan are fully funded, and adequate reserves have been established with respect to any Purchaser Entity immediately after the Closing Date. Neither the Purchaser nor any Subsidiary currently maintains or has ever maintained, or Foreign Benefit Plan that is required currently or has ever been not required to contribute to or otherwise participate in, a multiple employer welfare arrangement or voluntary employees’ beneficiary association as defined in Section 501(c)(9) of the Code. For purposes of this Agreement, “ERISA Affiliate” means, with respect to any Person, any Person or entity (whether or not incorporated) that is under common control or treated as one employer under Section 4001(b)(1) of ERISA or Section 414(b), (c), (m) or (o) of the Codebe funded.
Appears in 1 contract
Benefit Plans. (a) Commencing at 12:00 a.m. Houston, Texas time on the calendar day immediately following any Closing Date and continuing for a period of at least 12 months thereafter (or such longer period as required by applicable Law), Purchaser shall (i) Set forth continue (or cause its applicable Affiliate to continue) to sponsor and maintain each Sponsored Plan on Schedule 3.19(a) is a true and complete list of each material Benefit Plan of substantially the Purchaser and its Subsidiaries (each, a “Purchaser Benefit Plan”). With respect to each Purchaser Benefit Plan, there are no funded benefit obligations for which contributions have not been materially made or properly accrued and there are no material unfunded benefit obligations that have not been accounted for by reserves, or otherwise properly footnoted same terms as in accordance with GAAP on the Purchaser Financials. Except as set forth on Schedule 3.19(a), neither the Purchaser nor any Subsidiary or has in the past been a member of a “controlled group” for purposes of Section 414(b), (c), (m) or (o) of the Code other than with the Purchaser or another Subsidiary, nor does the Purchaser or any Subsidiary have any Liability with respect to any collectively-bargained for plans, whether or not subject effect immediately prior to the provisions of ERISA.
applicable Closing, and/or (ii) Each Purchaser Benefit Plan in all material respects is cover the Transferring Employees (and, to the extent appropriate, their dependents and has been operated in compliance with all applicable Laws in all material respectsother beneficiaries) under its existing employee benefit or fringe benefit plans, including ERISA and the Code. Each Purchaser Benefit Plan which is intended to be “qualified” within the meaning funds or programs; or (iii) provide any combination of Section 401(a) of the Code clauses (i) has been determined by the IRS to be so qualified (or is based on a prototype plan which has received a favorable opinion letter) during the period from its adoption to the date of this Agreement and (ii) is funded through a trust exempt from taxation above, whichever approach provides the Transferring Employees with benefits that, in the aggregate, are substantially the same as the benefits provided to the Transferring Employee immediately prior to the applicable Closing Date (provided that Purchaser or its Designated Affiliates shall not be required to recognize all service accrued by each Transferring Employee whilst employed by Seller or any of its Affiliates (other than for those Transferring Employees which continue to be employed by the Joint Venture) nor shall it be required to offer any profit sharing, stock bonus, stock option, stock purchase, phantom or stock equivalent type bonus, except in each case to the extent required by applicable Law), and in any event, as required by applicable Law. The Parties agree that nothing in this Section 10.2(a) modifies Section 5.16 and Section 10.1(f) 428928/HOUDMS
(b) Notwithstanding any other provision in this Agreement to the contrary, except as otherwise provided under Section 501(a) any Transition Services Agreement between the Parties, as of the Code. To the Knowledge of the Purchaserapplicable Closing Date, no fact exists which could adversely affect the qualified status of such Purchaser Benefit Plans Transferring Employee (or the exempt status of such trustshis or her beneficiary or dependent) shall accrue additional benefits under, remain covered by, or participate in any Seller Plan or any other employee benefits plan, program or arrangement sponsored, maintained or established by Seller or its Affiliates that are not Sponsored Plans.
(iiic) With respect to each Purchaser Benefit Plan, the Purchaser has made available to the Seller accurate and complete copies, if applicable, of: (i) all Purchaser Benefit Plan documents and agreements and related trust agreements or annuity Contracts (including Notwithstanding any amendments, modifications or supplements thereto); (ii) all summary plan descriptions and material modifications thereto; (iii) the three (3) most recent Forms 5500, if applicable, and annual report, including all schedules thereto; (iv) the most recent annual and periodic accounting of plan assets; (v) the three (3) most recent nondiscrimination testing reports; (vi) the most recent determination letter received from the IRS, if any; (vii) the most recent actuarial valuation; and (viii) all material written communications between the Purchaser or any Subsidiary or any Purchaser Benefit Plan and any Governmental Authority and relating to a Purchaser Benefit Plan within six (6) years preceding the date of this Agreement.
(iv) With respect to each Purchaser Benefit Plan: (i) such Purchaser Benefit Plan has been administered and enforced in all material respects in accordance with its terms, the Code and ERISA; (ii) neither the Purchaser nor any Subsidiary nor any employee, officer or director thereof that is a fiduciary (under ERISA) with respect to such Purchaser Benefit Plan has breached any of its fiduciary responsibilities, obligations or duties imposed on it by ERISA; (iii) no Action is pending or threatened in writing (other than routine claims for benefits arising in the ordinary course of administration); (iv) nothing has occurred with respect to any Purchaser Benefit Plan that has subjected the Purchaser or any Subsidiary to any material penalty under Section 502 of ERISA or Section 4975 of the Code; and (v) all contributions and premiums due through the Closing Date have been made in all material respects as required under ERISA or have been fully accrued in all material respects on the Purchaser Financials.
(v) No Purchaser Benefit Plan is, and neither the Purchaser or any Subsidiary or any of their respective ERISA Affiliates sponsors, maintains, contributes to, is required to contribute to, or otherwise has or could reasonably be expected to have any current or contingent Liability under or with respect to, a “defined benefit plan” (as defined in Section 414(j) of the Code), a “multiemployer plan” (as defined in Section 3(37) of ERISA) or a “multiple employer plan” (as described in Section 413(c) of the Code) or is otherwise subject to Title IV of ERISA or Section 412 of the Code. To the Purchaser’s Knowledge, no Purchaser Benefit Plan will become a multiple employer plan with respect to any Purchaser Entity immediately after the Closing Date. Neither the Purchaser nor any Subsidiary currently maintains or has ever maintained, or is required currently or has ever been required to contribute to or otherwise participate in, a multiple employer welfare arrangement or voluntary employees’ beneficiary association as defined in Section 501(c)(9) of the Code. For purposes provision of this Agreement, “ERISA nothing contained in this Agreement, express or implied, is intended to or shall be construed to amend, modify or terminate any Seller Plan or to affect Seller’s, Purchaser’s or each of their Affiliate” means’s ability to amend, with respect to modify or terminate any PersonSeller Plan. The provisions of this Agreement, any Person or entity (whether or not incorporated) that is under common control or treated as one employer under Section 4001(b)(1) of ERISA or Section 414(b)in particular this Article 10, (c), (m) or (o) are for the sole benefit of the CodeParties hereto and their respective Affiliates and are not for the benefit of any Third Party.
Appears in 1 contract
Sources: Sale and Purchase Agreement (Weatherford International PLC)
Benefit Plans. (i) Set Schedule 3.1(ii) sets forth on Schedule 3.19(a) is a true and complete list of each material the Benefit Plan of the Purchaser and its Subsidiaries (each, a “Purchaser Benefit Plan”). With respect to each Purchaser Benefit Plan, there are no funded benefit obligations for which contributions have not been materially made or properly accrued and there are no material unfunded benefit obligations that have not been accounted for by reserves, or otherwise properly footnoted in accordance with GAAP on the Purchaser Financials. Except as set forth on Schedule 3.19(a), neither the Purchaser nor any Subsidiary or has in the past been a member of a “controlled group” for purposes of Section 414(b), (c), (m) or (o) of the Code other than with the Purchaser or another Subsidiary, nor does the Purchaser or any Subsidiary have any Liability with respect to any collectively-bargained for plans, whether or not subject to the provisions of ERISAPlans.
(ii) Each Purchaser Current, correct and complete copies of all written Benefit Plan in all material respects is and has been operated in compliance with all applicable Laws in all material respectsPlans as amended to date or, including ERISA and the Code. Each Purchaser Benefit Plan which is intended to be “qualified” within the meaning of Section 401(a) where oral, written summaries of the Code (i) has terms thereof, have been determined by the IRS to be so qualified (delivered or is based on a prototype plan which has received a favorable opinion letter) during the period from its adoption made available to the date Buyer together with current and complete copies of this Agreement and all documents (iiincluding, where indicated herein, historical documents) is funded through a trust exempt from taxation under Section 501(a) of relating to the Code. To the Knowledge of the PurchaserBenefit Plans, no fact exists which could adversely affect the qualified status of such Purchaser Benefit Plans or the exempt status of such trustsas amended.
(iii) With Each Benefit Plan is, and has been, established, registered, qualified, administered, funded, and invested, as applicable, in compliance with the terms of such Benefit Plan including the terms of any documents in respect to each Purchaser of, such Benefit Plan, the Purchaser has made available to the Seller accurate all Applicable Laws and complete copiesany agreements, if applicable, of: (i) all Purchaser Benefit Plan documents and agreements and related trust agreements written or annuity Contracts (including any amendments, modifications or supplements thereto); (ii) all summary plan descriptions and material modifications thereto; (iii) the three (3) most recent Forms 5500, if applicable, and annual report, including all schedules thereto; (iv) the most recent annual and periodic accounting of plan assets; (v) the three (3) most recent nondiscrimination testing reports; (vi) the most recent determination letter received from the IRS, if any; (vii) the most recent actuarial valuation; and (viii) all material written communications oral between the Purchaser or any Subsidiary or any Purchaser Benefit Plan Corporation and any Governmental Authority and relating to a Purchaser Benefit Plan within six (6) years preceding the date of this Agreementother party, as applicable.
(iv) With The Corporation has complied with all of its obligations in respect of the Benefit Plans.
(v) Except as disclosed, the Corporation has no formal or informal plan and have made no promise or commitment, whether legally binding or not, to create any additional Benefit Plan or to improve or change the benefits provided under any Benefit Plan.
(vi) Except as expressly provided under this Agreement or as set out in Schedule 3.1(ii), neither the entering into of this Agreement, nor the completion of the transaction contemplated herein will (either alone or in conjunction with any additional or subsequent events) constitute an event under any Benefit Plan that will or may result in any payment (whether severance pay or otherwise), acceleration of payment or vesting of benefits, forgiveness of indebtedness, acceleration or increase in funding obligations, vesting, distribution, restriction of funds, increase or acceleration in benefits or obligation to fund benefits with respect to any Employee of the Corporation.
(vii) All employer and employee payments, contributions or premiums required to be remitted, paid to or in respect of each Purchaser Benefit Plan: (i) such Purchaser Benefit Plan has have been administered and enforced paid or remitted in all material respects a timely fashion in accordance with its termsterms and all Applicable Laws. Other than amounts which may be payable as contemplated by the Authorized Pre-Closing Transactions, or premiums not yet due and payable by the Code and ERISA; (ii) neither Corporation in the Purchaser nor ordinary course of business, no taxes, penalties or fees are owing or exigible under or in relation to any Subsidiary nor any employee, officer or director thereof that is a fiduciary (under ERISA) with respect to such Purchaser Benefit Plan by or from the Corporation and there are no liabilities or contingent liabilities of the Corporation in respect of any Person, benefit or compensation plan that has breached any of its fiduciary responsibilitiesbeen discontinued.
(viii) There is no investigation by a Governmental Authority, obligations or duties imposed on it by ERISA; (iii) no Action is pending or threatened in writing Claim (other than routine claims for benefits arising in the ordinary course payment of administration); (ivbenefits) nothing has occurred with respect to pending or threatened involving any Purchaser Benefit Plan that has subjected the Purchaser or any Subsidiary to any material penalty under Section 502 of ERISA or Section 4975 of the Code; and (v) all contributions and premiums due through the Closing Date have been made in all material respects as required under ERISA or have been fully accrued in all material respects on the Purchaser Financials.
(v) No Purchaser Benefit Plan istheir assets, and neither the Purchaser or any Subsidiary or any of their respective ERISA Affiliates sponsors, maintains, contributes to, is required to contribute to, or otherwise has or no facts exist which could reasonably be expected to give rise to any such investigation or Claim (other than routine claims for benefits).
(ix) No Benefit Plan provides pension or retirement benefits except pension benefits which are, and have any current or contingent Liability under or with respect toalways been, provided on a “defined benefit plan” contribution basis only.
(as defined in Section 414(jx) All liabilities of the Code)Corporation (whether accrued, a “multiemployer plan” (as defined absolute, contingent or otherwise) related to the Benefit Plans have been fully and accurately accrued and disclosed, and reported in Section 3(37) of ERISA) or a “multiple employer plan” (as described accordance with Canadian Generally Accepted Accounting Principles in Section 413(c) the financial statements of the Code) Corporation. No changes have occurred or is otherwise subject are expected to Title IV of ERISA or Section 412 occur to any of the Code. To Benefit Plans which would materially affect the Purchaser’s Knowledge, no Purchaser most recent financial statement prepared in respect of the applicable Benefit Plan will become a multiple employer plan and required to be provided pursuant to this Agreement. All bonuses and commission relating to the business of the Corporation and its Employees are accurately reflected in all material respects and have been appropriately accrued in the Books and Records of the Corporation, in accordance with good bookkeeping practices and, where applicable, Generally Accepted Accounting Principles. The Corporation does not accrue vacation pay on its Books and Records notwithstanding that the same may not amount to good bookkeeping practices and may not be in accordance with Generally Accepted Accounting Principles. The vacation policy of the Corporation with respect to any Purchaser Entity immediately after unused vacation time applicable to the Closing Date. Neither Employees is set forth in Schedule 3.1(ii).
(xi) There are no Proceedings pending or, to the Purchaser nor any Subsidiary currently maintains or has ever maintained, or is required currently or has ever been required to contribute to or otherwise participate in, a multiple employer welfare arrangement or voluntary employees’ beneficiary association as defined in Section 501(c)(9) Knowledge of the Code. For purposes of this AgreementSellers, “ERISA Affiliate” means, threatened with respect to the Benefit Plans against the Corporation or the insurer, under such Benefit Plans, where applicable, other than claims for benefits in the ordinary course. No order has been made or notice given pursuant to any PersonApplicable Law requiring (or proposing to require) the Corporation to take (or refrain from taking) any action in respect of any Benefit Plan.
(xii) The Benefit Plan applicable to the Employees of the Corporation is part of a group plan which applies to the Employees of Arrow Pharmaceuticals Inc. and Cobalt as well. Save as aforesaid, there are no entities, other than the Corporation, Arrow Pharmaceuticals Inc. or Cobalt, participating in any Person Benefit Plan.
(xiii) All Employee data necessary to administer each Benefit Plan is in the possession of Cobalt who administers the Benefit Plan of the Corporation on behalf of the Corporation under the Services and Cost Sharing Agreement, which data is in a form which is sufficient for the proper administration of the Benefit Plan in accordance with its terms and all Applicable Laws and to the Knowledge of the Sellers such data is complete and correct and which data will be provided to the Corporation at the Closing Time.
(xiv) None of the Benefit Plans provide benefits beyond retirement or entity other termination of service to Employees or former employees or to the beneficiaries or dependants of such employees.
(whether xv) No Benefit Plan provides benefits to any individual who is not an Employee, officer or director of the Corporation or the dependents or other beneficiaries of any such Employee, officer or director.
(xvi) Save as contemplated above, the Corporation does not incorporatedsponsor, administer or contribute to a multi-employer plan.
(xvii) that Nothing has been done or omitted to be done by the Corporation which could make any policy or insurance contract void or voidable. None of the Benefit Plans, or any insurance contact relating thereto, require or permit a retroactive increase in premiums or payments due under, or require additional premiums or payments on termination of the Benefit Plan, or any insurance contact relating thereto. The level of insurance reserves under each insured Benefit Plan is under common control or treated reasonable and sufficient to provide for all incurred but unreported claims.
(xviii) Except as one employer under Section 4001(b)(1) of ERISA or Section 414(bset forth in Schedule 3.1(ii), (c), (m) or (o) the execution of this Agreement and the consummation of the Codetransactions contemplated hereby will not cause the payment or acceleration of any benefit or amount payable under any Benefit Plan or change in control agreement between the Corporation and any Employee, director or officer.
Appears in 1 contract
Benefit Plans. (ia) Set forth on Schedule 3.19(a) 3.18 is a true and complete list of each material Benefit Plan of the Purchaser and its Subsidiaries Company (each, a “Purchaser Company Benefit Plan”). With respect to each Purchaser Company Benefit Plan, there are no funded benefit obligations for which contributions have not been materially made or properly accrued and there are no material unfunded benefit obligations that have not been accounted for by reserves, or otherwise properly footnoted in accordance with GAAP on the Purchaser Company Financials. Except as set forth on Schedule 3.19(a), neither the Purchaser The Company is not nor any Subsidiary or has in the past been a member of a “controlled group” for purposes of Section 414(b), (c), (m) or (o) of the Code other than with the Purchaser or another SubsidiaryCode, nor does the Purchaser or any Subsidiary Company have any Liability with respect to any collectively-bargained for plans, whether or not subject to the provisions of ERISA. No statement, either written or oral, has been made by the Company to any Person with regard to any Company Benefit Plan that was not in accordance with the Company Benefit Plan in any material respect.
(iib) Each Purchaser Company Benefit Plan in all material respects is and has been operated at all times in compliance with all applicable Laws in all material respects, including ERISA and the Code. Each Purchaser Company Benefit Plan which is intended to be “qualified” within the meaning of Section 401(a) of the Code (i) has been determined by the IRS to be so qualified (or is based on a prototype plan which has received a favorable opinion letter) during the period from its adoption to the date of this Agreement and (ii) is funded through a its related trust has been determined to be exempt from taxation under Section 501(a) of the CodeCode or the Company have requested an initial favorable IRS determination of qualification and/or exemption within the period permitted by applicable Law. To the Knowledge of the Purchaser, no No fact exists which could adversely affect the qualified status of such Purchaser Company Benefit Plans or the exempt status of such trusts.
(iiic) With respect to each Purchaser Benefit Plan, the Purchaser has made available to the Seller accurate and complete copies, if applicable, of: (i) all Purchaser Benefit Plan documents and agreements and related trust agreements or annuity Contracts (including any amendments, modifications or supplements thereto); (ii) all summary plan descriptions and material modifications thereto; (iii) the three (3) most recent Forms 5500, if applicable, and annual report, including all schedules thereto; (iv) the most recent annual and periodic accounting of plan assets; (v) the three (3) most recent nondiscrimination testing reports; (vi) the most recent determination letter received from the IRS, if any; (vii) the most recent actuarial valuation; and (viii) all material written communications between the Purchaser or any Subsidiary or any Purchaser Benefit Plan and any Governmental Authority and relating to a Purchaser Benefit Plan within six (6) years preceding the date of this Agreement.
(iv) With respect to each Purchaser Company Benefit Plan: (i) such Purchaser Company Benefit Plan has been administered and enforced in all material respects in accordance with its terms, the Code and ERISA; (ii) neither the Purchaser nor any Subsidiary nor any employee, officer or director thereof that is a no breach of fiduciary (under ERISA) with respect to such Purchaser Benefit Plan duty has breached any of its fiduciary responsibilities, obligations or duties imposed on it by ERISAoccurred; (iii) no Action is pending pending, or to the Company’s Knowledge, threatened in writing (other than routine claims for benefits arising in the ordinary course of administration); (iv) nothing has occurred with respect to any Purchaser Benefit Plan that has subjected the Purchaser or any Subsidiary to any material penalty under no prohibited transaction, as defined in Section 502 406 of ERISA or Section 4975 of the Code, has occurred, excluding transactions effected pursuant to a statutory or administration exemption; and (v) all contributions and premiums due through the Closing Date have been made in all material respects as required under ERISA or have been fully accrued in all material respects on the Purchaser Company Financials.
(vd) No Purchaser Company Benefit Plan is, and neither the Purchaser or any Subsidiary or any of their respective ERISA Affiliates sponsors, maintains, contributes to, is required to contribute to, or otherwise has or could reasonably be expected to have any current or contingent Liability under or with respect to, a “defined benefit plan” (as defined in Section 414(j) of the Code), a “multiemployer plan” (as defined in Section 3(37) of ERISA) or a “multiple employer plan” (as described in Section 413(c) of the Code) or is otherwise subject to Title IV of ERISA or Section 412 of the Code, and no Target Company has incurred any Liability or otherwise could have any Liability, contingent or otherwise, under Title IV of ERISA and no condition presently exists that is expected to cause such Liability to be incurred. To the Purchaser’s Knowledge, no Purchaser No Company Benefit Plan will become a multiple employer plan with respect to any Purchaser Entity the Company immediately after the Closing Date. Neither the Purchaser nor any Subsidiary No Target Company currently maintains or has ever maintained, or is required currently or has ever been required to contribute to or otherwise participate in, a multiple employer welfare arrangement or voluntary employees’ beneficiary association as defined in Section 501(c)(9) of the Code. For purposes of this Agreement, “ERISA Affiliate” means, .
(e) There is no arrangement under any Company Benefit Plan with respect to any Personemployee that would result in the payment of any amount that by operation of Sections 280G or 162(m) of the Code would not be deductible by the Company and no arrangement exists pursuant to which the Company will be required to “gross up” or otherwise compensate any person because of the imposition of any excise tax on a payment to such person.
(f) The consummation of the transactions contemplated by this Agreement and the Ancillary Documents will not: (i) entitle any individual to severance pay, unemployment compensation or other benefits or compensation; (ii) accelerate the time of payment or vesting, or increase the amount of any compensation due, or in respect of, any Person individual; or entity (whether iii) result in or satisfy a condition to the payment of compensation that would, in combination with any other payment, result in an “excess parachute payment” within the meaning of Section 280G of the Code. The Company has not incorporated) that is incurred any Liability for any Tax imposed under common control Chapter 43 of the Code or treated as one employer civil liability under Section 4001(b)(1) of ERISA or Section 414(b), (c), (m502(i) or (ol) of ERISA.
(g) Except to the Codeextent required by Section 4980B of the Code or similar state Law, the Company does not provide health or welfare benefits to any former or retired employee or is obligated to provide such benefits to any active employee following such employee’s retirement or other termination of employment or service.
Appears in 1 contract
Sources: Merger Agreement (Spherix Inc)
Benefit Plans. (i) Set forth on Schedule 3.19(aSection 4.2(l)(i) of the OPCH Disclosure Letter is a true complete and complete correct list of each material Benefit Plan of the Purchaser and its Subsidiaries (each, a “Purchaser OPCH Benefit Plan”). With respect to each Purchaser material OPCH Benefit Plan, there are no funded benefit obligations for which contributions have not been materially OPCH has made or properly accrued available, upon request, to Amedisys complete and there are no material unfunded benefit obligations that have not been accounted for by reserves, or otherwise properly footnoted in accordance with GAAP on the Purchaser Financials. Except as set forth on Schedule 3.19(a), neither the Purchaser nor any Subsidiary or has in the past been a member correct copies of a “controlled group” for purposes of Section 414(b), (c), (m) or (o) of the Code other than with the Purchaser or another Subsidiary, nor does the Purchaser or any Subsidiary have any Liability with respect to any collectively-bargained for plans, whether or not subject to the provisions of ERISAsuch OPCH Benefit Plan.
(ii) Each Purchaser Except as, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect on OPCH, (A) each of the OPCH Benefit Plans has been established, maintained, operated and administered in accordance with its terms and in compliance with Applicable Laws, including ERISA, the Code and in each case the regulations thereunder, (B) no OPCH Benefit Plan provides post-employment or retiree welfare benefits, including death or medical benefits (whether or not insured), other than coverage mandated by COBRA, or comparable U.S. state or foreign law, (C) all contributions, distributions or other amounts payable by OPCH or its subsidiaries as of the Effective Time pursuant to each OPCH Benefit Plan in all material respects respect of current or prior plan years have been timely paid in accordance with Applicable Laws or, to the extent not yet due, have been accrued in accordance with GAAP, (D) neither OPCH nor any of its subsidiaries has engaged in a transaction in connection with which OPCH or its subsidiaries could be subject to either a civil penalty assessed pursuant to Section 409 or 502(i) of ERISA or a tax imposed pursuant to Section 4975 or 4976 of the Code and (E) there are no pending or, to the knowledge of OPCH, threatened in writing or anticipated claims, actions, investigations or audits (other than routine claims for benefits) by, on behalf of or against any of the OPCH Benefit Plans or any trusts related thereto.
(iii) None of OPCH or any of its subsidiaries or any of their respective ERISA Affiliates contributes to or is and obligated to contribute to or has been operated in compliance any liability with all applicable Laws in all material respectsrespect to a plan subject to Title IV of ERISA or a Multiemployer Plan, including ERISA and as a result of any complete or partial withdrawal from any Multiemployer Plan.
(iv) Each of the Code. Each Purchaser OPCH Benefit Plan which is Plans intended to be “qualified” within the meaning of Section 401(a) of the Code Code, (iA) has been determined by the IRS to be is so qualified (or is based on a prototype plan which has received a favorable opinion letter) during the period from its adoption and, to the date knowledge of this Agreement and (ii) is funded through a trust exempt from taxation under Section 501(a) of the Code. To the Knowledge of the PurchaserAmedisys, there are no fact exists which could existing circumstances or any events that have occurred that would reasonably be expected to adversely affect the qualified status of any such Purchaser Benefit Plans plan and (B) has received a favorable determination letter or the exempt status of such trustsopinion letter as to its qualification.
(iiiv) With respect Except as, individually or in the aggregate, would not reasonably be expected to each Purchaser have a Material Adverse Effect on OPCH, all OPCH Benefit Plan, the Purchaser has made available Plans subject to the Seller accurate laws of any jurisdiction outside of the United States (A) have been maintained in accordance with all applicable requirements, (B) that are intended to qualify for special tax treatment meet all requirements for such treatment and complete copies(C) that are intended to be funded or book-reserved are fully funded or book reserved, if applicableas appropriate, of: (i) all Purchaser Benefit Plan documents and agreements and related trust agreements or annuity Contracts (including any amendments, modifications or supplements thereto); (ii) all summary plan descriptions and material modifications thereto; (iii) the three (3) most recent Forms 5500, if applicable, and annual report, including all schedules thereto; (iv) the most recent annual and periodic accounting of plan assets; (v) the three (3) most recent nondiscrimination testing reports; based upon reasonable actuarial assumptions.
(vi) Except as, individually or in the most recent determination letter received from aggregate, would not reasonably be expected to have a Material Adverse Effect on OPCH, (A) each OPCH Benefit Plan maintained by OPCH on behalf of current or former directors, officers, managers, employees or other service providers who reside or work primarily outside of the IRSUnited States (each, if anyan “OPCH Foreign Plan”) required by any Applicable Law to be registered or approved by a Governmental Entity has been so registered or approved and has been maintained in good standing with the applicable Governmental Entity; (viiB) the most recent actuarial valuation; and each OPCH Foreign Plan required under any Applicable Law to be funded, is either (viii1) all material written communications between the Purchaser or any Subsidiary or any Purchaser Benefit Plan and any Governmental Authority and relating to a Purchaser Benefit Plan within six (6) years preceding the date of this Agreement.
(iv) With respect to each Purchaser Benefit Plan: (i) such Purchaser Benefit Plan has been administered and enforced funded in all material respects in accordance with its terms, the Code and ERISA; (ii) neither the Purchaser nor any Subsidiary nor any employee, officer or director thereof that is a fiduciary (under ERISA) such law to an extent sufficient to provide for accrued benefit obligations with respect to such Purchaser Benefit Plan has breached any of its fiduciary responsibilitiesall affected employees or (2) is fully insured, obligations or duties imposed on it by ERISA; (iii) no Action is pending or threatened in writing (other than routine claims for benefits arising in the ordinary course of administration); (iv) nothing has occurred with respect to any Purchaser Benefit Plan that has subjected the Purchaser or any Subsidiary to any material penalty under Section 502 of ERISA or Section 4975 each case based upon generally accepted local accounting and actuarial practices and procedures, and none of the Code; and (v) all contributions and premiums due through the Closing Date have been made in all material respects as required under ERISA or have been fully accrued in all material respects on the Purchaser Financials.
(v) No Purchaser Benefit Plan is, and neither the Purchaser or any Subsidiary or any of their respective ERISA Affiliates sponsors, maintains, contributes to, is required to contribute totransactions contemplated by this Agreement will, or otherwise has or could would reasonably be expected to have any current or contingent Liability under or with respect to, cause such funding or insurance obligations to be materially less than such benefit obligations; (C) no OPCH Foreign Plan is a “defined benefit plan” (as defined in Section 414(j) of the CodeERISA, whether or not subject to ERISA), a “multiemployer plan” seniority premium, termination indemnity, gratuity or similar plan or arrangement; and (as defined in Section 3(37D) of ERISA) no unfunded or a “multiple employer plan” (as described in Section 413(c) of the Code) or is otherwise subject to Title IV of ERISA or Section 412 of the Code. To the Purchaser’s Knowledge, no Purchaser Benefit Plan will become a multiple employer plan underfunded liabilities exist with respect to any Purchaser Entity immediately after the Closing Date. Neither the Purchaser nor any Subsidiary currently maintains or has ever maintained, or is required currently or has ever been required to contribute to or otherwise participate in, a multiple employer welfare arrangement or voluntary employees’ beneficiary association as defined in Section 501(c)(9) of the Code. For purposes of this Agreement, “ERISA Affiliate” means, with respect to any Person, any Person or entity (whether or not incorporated) that is under common control or treated as one employer under Section 4001(b)(1) of ERISA or Section 414(b), (c), (m) or (o) of the Code.OPCH Foreign Plan.
Appears in 1 contract
Sources: Merger Agreement
Benefit Plans. (ia) Set SCHEDULE 2.18(a) hereto sets forth on Schedule 3.19(a) is a true and complete list of each all material Benefit Plan employee benefit plans and arrangements of the Purchaser and its Subsidiaries any type (eachincluding, a “Purchaser Benefit Plan”). With respect to each Purchaser Benefit Planbut not limited to, there are no funded benefit obligations for which contributions have not been materially made or properly accrued and there are no material unfunded benefit obligations that have not been accounted for by reserves, or otherwise properly footnoted plans described in accordance with GAAP on the Purchaser Financials. Except as set forth on Schedule 3.19(aSections 3(1), neither the Purchaser nor any Subsidiary or has in the past been a member of a “controlled group” for purposes of Section 414(b), (c), (m3(2) or (oand 3(3) of the Code Employee Retirement Income Security Act of 1974, as amended ("ERISA")) maintained by the Seller or Subsidiaries for the benefit of any Employees (the "BENEFIT PLANS"). SCHEDULE 2.18(a) hereto sets forth a complete list of the Benefit Plans which are sponsored by the Seller or an Affiliate of Seller (other than with the Purchaser or another a Subsidiary, nor does the Purchaser or any Subsidiary ) and which have any Liability with respect either provided coverage and benefits directly to any collectively-bargained employees of the Seller or been adopted and participated in or contributed to by a Subsidiary for plans, whether or not subject to the provisions benefit of ERISA.
any employees of such Subsidiary (ii) Each Purchaser Benefit Plan in all material respects is and has been operated in compliance with all applicable Laws in all material respects, including ERISA and the Code"CYRK BENEFIT PLANS"). Each Purchaser Any Benefit Plan which is intended to be “qualified” within the meaning of Section 401(a) not a Cyrk Benefit Plan is a benefit plan or arrangement provided by one of the Code (i) has been determined by the IRS to be so qualified (or is based on a prototype plan which has received a favorable opinion letter) during the period from its adoption to the date of this Agreement and (ii) is funded through a trust exempt from taxation under Section 501(a) of the Code. To the Knowledge of the Purchaser, no fact exists which could adversely affect the qualified status of such Purchaser Benefit Plans or the exempt status of such trustsSubsidiaries.
(iiib) With respect to each Purchaser Benefit Plan, the Purchaser Seller has made available to the Seller accurate Buyer true and complete copies, if applicable, copies of: (i) any and all Purchaser Benefit Plan documents plan texts and agreements and related trust agreements or annuity Contracts (including any amendments, modifications or supplements thereto)agreements; (ii) any and all summary plan descriptions and material modifications thereto; (iii) the three (3) most recent Forms 5500annual report, if applicable, and annual report, including all schedules thereto; (iv) the most recent annual and periodic accounting of plan assets, if applicable; and (v) the three (3) most recent nondiscrimination testing reports; (vi) the most recent determination letter received from the IRSInternal Revenue Service (the "SERVICE"), if any; (vii) the most recent actuarial valuation; and (viii) all material written communications between the Purchaser or any Subsidiary or any Purchaser Benefit Plan and any Governmental Authority and relating to a Purchaser Benefit Plan within six (6) years preceding the date of this Agreementapplicable.
(ivc) With respect to each Purchaser Benefit Plan: (i) such Purchaser Benefit Plan plan has been administered and enforced in all material respects in accordance with its terms, the Code terms and ERISAall applicable laws in all material respects; (ii) neither the Purchaser nor any Subsidiary nor any employee, officer or director thereof that is a no breach of fiduciary (under ERISA) duty has occurred with respect to such Purchaser which the Seller, or any Subsidiary of either or any Benefit Plan has breached may be liable or otherwise damaged in any of its fiduciary responsibilities, obligations or duties imposed on it by ERISAmaterial respect; (iii) no Action is material disputes are pending or threatened in writing (other than routine claims for benefits arising in or, to the ordinary course knowledge of administration)the Seller, threatened; and (iv) nothing to the knowledge of the Seller, no "prohibited transaction" (within the meaning of either Section 4975(c) of the Code or Section 406 of ERISA) has occurred with respect to any Purchaser Benefit Plan that has subjected which the Purchaser Seller or any Subsidiary to may be liable or otherwise damaged in any material penalty under Section 502 of ERISA or Section 4975 of the Code; and (v) all contributions and premiums due through the Closing Date have been made in all material respects as required under ERISA or have been fully accrued in all material respects on the Purchaser Financialsrespect.
(vd) No Purchaser Benefit Plan is, and neither the Purchaser or any Subsidiary or any of their respective ERISA Affiliates sponsors, maintains, contributes to, is required to contribute to, or otherwise has or could reasonably be expected to have any current or contingent Liability under or with respect to, a “defined benefit plan” (as defined in Section 414(j) of the Code), a “multiemployer plan” (as defined in Section 3(37) of ERISA) or a “multiple employer plan” (as described in Section 413(c) of the Code) or is otherwise subject to Title IV of ERISA or Section 412 of the Code. To the Purchaser’s Knowledge, no Purchaser No Benefit Plan will become is a multiple employer plan "multiemployer plan" within the meaning of Section 3(37) of ERISA and the Seller and the Subsidiaries have never been participating employers in any "multiemployer plan". No reportable event, or event or condition which presents a material risk of termination by the Pension Benefits Guaranty Corporation, has occurred with respect to any Purchaser Entity immediately after the Closing Date. Neither the Purchaser nor any Subsidiary currently maintains or has ever maintained, or Benefit Plan which is required currently or has ever been required subject to contribute to or otherwise participate in, a multiple employer welfare arrangement or voluntary employees’ beneficiary association as defined in Section 501(c)(9) Title IV of the Code. For purposes of this Agreement, “ERISA Affiliate” means, with respect to any Person, any Person or entity (whether or not incorporated) that is under common control or treated as one employer under Section 4001(b)(1) of ERISA or Section 414(b), (c), (m) or (o) of the CodeERISA.
Appears in 1 contract
Sources: Purchase Agreement (Cyrk Inc)
Benefit Plans. (ia) Set forth on Schedule 3.19(a) 5.19 is a true and complete list of each material Company Benefit Plan of the Purchaser and its Subsidiaries (each, a “Purchaser Benefit Plan”)Target Company. With respect to each Purchaser Company Benefit Plan, there are no funded benefit obligations for which contributions have not been materially made or properly accrued and there are no material unfunded benefit obligations that have not been accounted for by reserves, or otherwise properly footnoted in accordance with GAAP on the Purchaser Company Financials. Except as set forth on Schedule 3.19(a), neither the Purchaser nor any Subsidiary No Target Company is or has in the past been a member of a “controlled group” for purposes of Section 414(b), (c), (m) or (o) of the Code other than with the Purchaser or another SubsidiaryCode, nor does the Purchaser or any Subsidiary Target Company have any Liability with respect to any collectively-bargained for plans, whether or not subject to the provisions of ERISA. No statement, either written or oral, has been made by any Target Company to any Person with regard to any Company Benefit Plan that was not in accordance with the Company Benefit Plan in any material respect.
(iib) Each Purchaser Company Benefit Plan in all material respects is and has been operated at all times in compliance with all applicable Laws in all material respects, including ERISA and the Code. Each Purchaser Company Benefit Plan which is intended to be “qualified” within the meaning of Section 401(a) of the Code (i) has been determined by the IRS to be so qualified (or is based on a prototype plan which has received a favorable opinion letter) during the period from its adoption to the date of this Agreement and (ii) is funded through a its related trust has been determined to be exempt from taxation under Section 501(a) of the CodeCode or the Target Companies have requested an initial favorable IRS determination of qualification and/or exemption within the period permitted by applicable Law. To the Knowledge of the Purchaser, no No fact exists which could adversely affect the qualified status of such Purchaser Company Benefit Plans or the exempt status of such trusts.
(iiic) With respect to each Purchaser Company Benefit PlanPlan which covers any current or former officer, director, consultant or employee (or beneficiary thereof) of a Target Company, the Purchaser Company has made available provided to the Seller ParentCo accurate and complete copies, if applicable, of: (i) all Purchaser Company Benefit Plan documents texts and agreements and related trust agreements or annuity Contracts (including any amendments, modifications or supplements thereto); (ii) all summary plan descriptions and material modifications thereto; (iii) the three (3) most recent Forms 5500, if applicable, and annual report, including all schedules thereto; (iv) the most recent annual and periodic accounting of plan assets; (v) the three (3) most recent nondiscrimination testing reports; (vi) the most recent determination letter received from the IRS, if any; (vii) the most recent actuarial valuation; and (viii) all material written communications between the Purchaser or any Subsidiary or any Purchaser Benefit Plan and with any Governmental Authority and relating to a Purchaser Benefit Plan within six (6) years preceding the date of this AgreementAuthority.
(ivd) With respect to each Purchaser Company Benefit Plan: (i) such Purchaser Company Benefit Plan has been administered and enforced in all material respects in accordance with its terms, the Code and ERISA; (ii) neither the Purchaser nor any Subsidiary nor any employee, officer or director thereof that is a no breach of fiduciary (under ERISA) with respect to such Purchaser Benefit Plan duty has breached any of its fiduciary responsibilities, obligations or duties imposed on it by ERISAoccurred; (iii) no Action is pending pending, or to the Company’s Knowledge, threatened in writing (other than routine claims for benefits arising in the ordinary course of administration); (iv) nothing has occurred with respect to any Purchaser Benefit Plan that has subjected the Purchaser or any Subsidiary to any material penalty under no prohibited transaction, as defined in Section 502 406 of ERISA or Section 4975 of the Code, has occurred, excluding transactions effected pursuant to a statutory or administration exemption; and (v) all contributions and premiums due through the Closing Date have been made in all material respects as required under ERISA or have been fully accrued in all material respects on the Purchaser Company Financials.
(ve) No Purchaser Company Benefit Plan is, and neither the Purchaser or any Subsidiary or any of their respective ERISA Affiliates sponsors, maintains, contributes to, is required to contribute to, or otherwise has or could reasonably be expected to have any current or contingent Liability under or with respect to, a “defined benefit plan” (as defined in Section 414(j) of the Code), a “multiemployer plan” (as defined in Section 3(37) of ERISA) or a “multiple employer plan” (as described in Section 413(c) of the Code) or is otherwise subject to Title IV of ERISA or Section 412 of the Code, and no Target Company has incurred any Liability or otherwise could have any Liability, contingent or otherwise, under Title IV of ERISA and no condition presently exists that is expected to cause such Liability to be incurred. To the Purchaser’s Knowledge, no Purchaser No Company Benefit Plan will become a multiple employer plan with respect to any Purchaser Entity Target Company immediately after the Closing Date. Neither the Purchaser nor any Subsidiary No Target Company currently maintains or has ever maintained, or is required currently or has ever been required to contribute to or otherwise participate in, a multiple employer welfare arrangement or voluntary employees’ beneficiary association as defined in Section 501(c)(9) of the Code. For purposes of this Agreement, “ERISA Affiliate” means, .
(f) There is no arrangement under any Company Benefit Plan with respect to any Personemployee that would result in the payment of any amount that by operation of Sections 280G or 162(m) of the Code would not be deductible by the Target Companies and no arrangement exists pursuant to which a Target Company will be required to “gross up” or otherwise compensate any person because of the imposition of any excise tax on a payment to such person.
(g) With respect to each Company Benefit Plan which is a “welfare plan” (as described in Section 3(1) of ERISA): (i) no such plan provides medical or death benefits with respect to current or former employees of a Target Company beyond their termination of employment (other than coverage mandated by Law, which is paid solely by such employees); and (ii) there are no reserves, assets, surplus or prepaid premiums under any such plan. Each Target Company has complied with the provisions of Section 601 et seq. of ERISA and Section 4980B of the Code.
(h) Except as set forth in Schedule 5.19(g), the consummation of the transactions contemplated by this Agreement and the Ancillary Documents will not: (i) entitle any individual to severance pay, unemployment compensation or other benefits or compensation; (ii) accelerate the time of payment or vesting, or increase the amount of any compensation due, or in respect of, any Person individual; or entity (whether iii) result in or not incorporated) satisfy a condition to the payment of compensation that is would, in combination with any other payment, result in an “excess parachute payment” within the meaning of Section 280G of the Code. No Target Company has incurred any Liability for any Tax imposed under common control Chapter 43 of the Code or treated as one employer civil liability under Section 4001(b)(1) of ERISA or Section 414(b), (c), (m502(i) or (ol) of ERISA.
(i) Except to the extent required by Section 4980B of the Code or similar state Law, no Target Company provides health or welfare benefits to any former or retired employee or is obligated to provide such benefits to any active employee following such employee’s retirement or other termination of employment or service.
(j) All Company Benefit Plans can be terminated at any time as of or after the Closing Date without resulting in any Liability to the Surviving Corporation or ParentCo or their respective Affiliates for any additional contributions, penalties, premiums, fees, fines, excise taxes or any other charges or liabilities.
(k) Each Company Benefit Plan that is subject to Section 409A of the Code (each, a “Section 409A Plan”) as of the Closing Date is indicated as such on Schedule 5.19(j). No options or other equity-based awards have been issued or granted by the Company that are, or are subject to, a Section 409A Plan. Each Section 409A Plan has been administered in compliance, and is in documentary compliance, with the applicable provisions of Section 409A of the Code, the regulations thereunder and other official guidance issued thereunder. No Target Company has any obligation to any employee or other service provider with respect to any Section 409A Plan that may be subject to any Tax under Section 409A of the Code. No payment to be made under any Section 409A Plan is, or to the Knowledge of the Company will be, subject to the penalties of Section 409A(a)(1) of the Code. There is no Contract or plan to which any Target Company is a party or by which it is bound to compensate any employee, consultant or director for penalty taxes paid pursuant to Section 409A of the Code.
Appears in 1 contract
Sources: Business Combination Agreement (Kernel Group Holdings, Inc.)
Benefit Plans. (ia) Set forth on Schedule 3.19(a4.19(a) is a true and complete list of each material Company Benefit Plan of the Purchaser and its Subsidiaries (each, a “Purchaser Benefit Plan”)Target Company. With respect to each Purchaser Company Benefit Plan, there are no funded benefit obligations for which contributions have not been materially made or properly accrued and there are no material unfunded benefit obligations that have not been accounted for by reserves, or otherwise properly footnoted in accordance with GAAP on the Purchaser Company Financials. Except as set forth on Schedule 3.19(a), neither the Purchaser nor any Subsidiary No Target Company is or has in the past been a member of a “controlled group” for purposes of Section 414(b), (c), (m) or (o) of the Code other than with the Purchaser or another SubsidiaryCode, nor does the Purchaser or any Subsidiary Target Company have any Liability with respect to any collectively-bargained for plans, whether or not subject to the provisions of ERISA. No statement, either written or oral, has been made by any Target Company to any Person with regard to any Company Benefit Plan that was not in accordance with the Company Benefit Plan in any material respect.
(iib) Each Purchaser Company Benefit Plan in all material respects is and has been operated at all times in compliance with all applicable Laws in all material respects, including ERISA and the Code. Each Purchaser Company Benefit Plan which is intended to be “qualified” within the meaning of Section 401(a) of the Code (i) has been determined by the IRS to be so qualified (or is based on a prototype plan which has received a favorable opinion letter) during the period from its adoption to the date of this Agreement and (ii) is funded through a its related trust has been determined to be exempt from taxation under Section 501(a) of the CodeCode or the Target Companies have requested an initial favorable IRS determination of qualification and/or exemption within the period permitted by applicable Law. To the Knowledge of the Purchaser, no No fact exists which could adversely affect the qualified status of such Purchaser Company Benefit Plans or the exempt status of such trusts.
(iiic) With respect to each Purchaser Company Benefit PlanPlan which covers any current or former officer, director, consultant or employee (or beneficiary thereof) of a Target Company, the Company has provided to Purchaser has made available to the Seller accurate and complete copies, if applicable, of: (i) all Purchaser Company Benefit Plan documents texts and agreements and related trust agreements or annuity Contracts (including any amendments, modifications or supplements thereto); (ii) all summary plan descriptions and material modifications thereto; (iii) the three (3) most recent Forms 5500, if applicable, and annual report, including all schedules thereto; (iv) the most recent annual and periodic accounting of plan assets; (v) the three (3) most recent nondiscrimination testing reports; (vi) the most recent determination letter received from the IRS, if any; (vii) the most recent actuarial valuation; and (viii) all material written communications between the Purchaser or any Subsidiary or any Purchaser Benefit Plan and with any Governmental Authority and relating to a Purchaser Benefit Plan within six (6) years preceding the date of this AgreementAuthority.
(ivd) With respect to each Purchaser Company Benefit Plan: (i) such Purchaser Company Benefit Plan has been administered and enforced in all material respects in accordance with its terms, the Code and ERISA; (ii) neither the Purchaser nor any Subsidiary nor any employee, officer or director thereof that is a no breach of fiduciary (under ERISA) with respect to such Purchaser Benefit Plan duty has breached any of its fiduciary responsibilities, obligations or duties imposed on it by ERISAoccurred; (iii) no Action is pending pending, or to the Company’s Knowledge, threatened in writing (other than routine claims for benefits arising in the ordinary course of administration); (iv) nothing has occurred with respect to any Purchaser Benefit Plan that has subjected the Purchaser or any Subsidiary to any material penalty under no prohibited transaction, as defined in Section 502 406 of ERISA or Section 4975 of the Code, has occurred, excluding transactions effected pursuant to a statutory or administration exemption; and (v) all contributions and premiums due through the Closing Date have been made in all material respects as required under ERISA or have been fully accrued in all material respects on the Purchaser Company Financials.
(ve) No Purchaser Company Benefit Plan is, and neither the Purchaser or any Subsidiary or any of their respective ERISA Affiliates sponsors, maintains, contributes to, is required to contribute to, or otherwise has or could reasonably be expected to have any current or contingent Liability under or with respect to, a “defined benefit plan” (as defined in Section 414(j) of the Code), a “multiemployer plan” (as defined in Section 3(37) of ERISA) or a “multiple employer plan” (as described in Section 413(c) of the Code) or is otherwise subject to Title IV of ERISA or Section 412 of the Code, and no Target Company has incurred any Liability or otherwise could have any Liability, contingent or otherwise, under Title IV of ERISA and no condition presently exists that is expected to cause such Liability to be incurred. To the Purchaser’s Knowledge, no Purchaser No Company Benefit Plan will become a multiple employer plan with respect to any Purchaser Entity Target Company immediately after the Closing Date. Neither the Purchaser nor any Subsidiary No Target Company currently maintains or has ever maintained, or is required currently or has ever been required to contribute to or otherwise participate in, a multiple employer welfare arrangement or voluntary employees’ beneficiary association as defined in Section 501(c)(9) of the Code. For purposes of this Agreement, “ERISA Affiliate” means, .
(f) There is no arrangement under any Company Benefit Plan with respect to any Personemployee that would result in the payment of any amount that by operation of Sections 280G or 162(m) of the Code would not be deductible by the Target Companies and no arrangement exists pursuant to which a Target Company will be required to “gross up” or otherwise compensate any person because of the imposition of any excise tax on a payment to such person.
(g) With respect to each Company Benefit Plan which is a “welfare plan” (as described in Section 3(1) of ERISA): (i) no such plan provides medical or death benefits with respect to current or former employees of a Target Company beyond their termination of employment (other than coverage mandated by Law, which is paid solely by such employees); and (ii) there are no reserves, assets, surplus or prepaid premiums under any such plan. Each Target Company has complied with the provisions of Section 601 et seq. of ERISA and Section 4980B of the Code.
(h) Except as set forth in Schedule 4.19(h), the consummation of the transactions contemplated by this Agreement and the Ancillary Documents will not: (i) entitle any individual to severance pay, unemployment compensation or other benefits or compensation; (ii) accelerate the time of payment or vesting, or increase the amount of any compensation due, or in respect of, any Person individual; or entity (whether iii) result in or not incorporated) satisfy a condition to the payment of compensation that is would, in combination with any other payment, result in an “excess parachute payment” within the meaning of Section 280G of the Code. No Target Company has incurred any Liability for any Tax imposed under common control Chapter 43 of the Code or treated as one employer civil liability under Section 4001(b)(1) of ERISA or Section 414(b), (c), (m502(i) or (ol) of ERISA.
(i) Except to the extent required by Section 4980B of the Code or similar state Law, no Target Company provides health or welfare benefits to any former or retired employee or is obligated to provide such benefits to any active employee following such employee’s retirement or other termination of employment or service.
(j) All Company Benefit Plans can be terminated at any time as of or after the Closing Date without resulting in any Liability to the Surviving Corporation or Purchaser or their respective Affiliates for any additional contributions, penalties, premiums, fees, fines, excise taxes or any other charges or liabilities.
(k) Each Company Benefit Plan that is subject to Section 409A of the Code (each, a “Section 409A Plan”) as of the Closing Date is indicated as such on Schedule 4.19(k). No options or other equity-based awards have been issued or granted by the Company that are, or are subject to, a Section 409A Plan. Each Section 409A Plan has been administered in compliance, and is in documentary compliance, with the applicable provisions of Section 409A of the Code, the regulations thereunder and other official guidance issued thereunder. No Target Company has any obligation to any employee or other service provider with respect to any Section 409A Plan that may be subject to any Tax under Section 409A of the Code. No payment to be made under any Section 409A Plan is, or to the Knowledge of the Company will be, subject to the penalties of Section 409A(a)(1) of the Code. There is no Contract or plan to which any Target Company is a party or by which it is bound to compensate any employee, consultant or director for penalty taxes paid pursuant to Section 409A of the Code.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Aesther Healthcare Acquisition Corp.)
Benefit Plans. (ia) Set forth on Schedule 3.19(a4.14(a) is contains a true and complete list of each material Benefit Plan of the Purchaser and its Subsidiaries (eachpension, a “Purchaser Benefit Plan”). With respect to each Purchaser Benefit Planbenefit, there are no funded retirement, profit-sharing, deferred compensation, welfare, employment, severance, termination, bonus, incentive, retention, change in control, equity, equity-linked, fringe-benefit obligations for which contributions have not been materially made or properly accrued and there are no material unfunded other compensation, benefit obligations that have not been accounted for by reservesor perquisite agreement, plan, policy, or otherwise properly footnoted in accordance with GAAP on program, whether or not written, including each “employee benefit plan” within the Purchaser Financials. Except as set forth on Schedule 3.19(a), neither the Purchaser nor any Subsidiary or has in the past been a member of a “controlled group” for purposes meaning of Section 414(b), (c), (m) or (o3(3) of the Code other than with the Purchaser or another SubsidiaryEmployee Retirement Income Security Act of 1974, nor does the Purchaser or any Subsidiary have any Liability with respect to any collectively-bargained for plansas amended (“ERISA”), whether or not subject to ERISA, which is maintained, sponsored, contributed to, or required to be contributed to by the provisions Seller for the benefit of ERISAany current or former employee or other service provider of the Seller or any spouse or dependent of such individual or as to which the Seller has any obligation or liability, contingent or otherwise (each, a “Benefit Plan”).
(iib) Each Purchaser Benefit Plan in all material respects is and related trust agreement, annuity contract or other funding instrument complies with, and has been established, administered, operated and maintained in material compliance with all its terms and any applicable Laws Laws. There are no pending or, to the Seller’s Knowledge, threatened: (i) Actions, by or on behalf of any of the Benefit Plans, by any employee or beneficiary covered under any such Benefit Plans, or otherwise involving any such Benefit Plans or the assets thereof (other than routine claims for benefits) or (ii) Actions by any Governmental Authority with respect to any Benefit Plan. All benefits accrued under any unfunded Benefit Plan have been paid, accrued or otherwise adequately reserved to the extent required by, and in all material respectsaccordance with, including ERISA and the CodeCommonly Accepted Accounting Principles. Each Purchaser Benefit Plan which that is intended to be meet the requirements of a “qualifiedqualified plan” within under Section 401(a) of the meaning Code has received a favorable determination letter from the Internal Revenue Service (or, if it is a prototype plan, is the subject of a favorable opinion letter issued by the Internal Revenue Service) to the effect that such Benefit Plan meets the requirements of Section 401(a) of the Code (i) has been determined by the IRS to be so qualified (or is based on a prototype plan which has received a favorable opinion letter) during the period from its adoption to the date of this Agreement and (ii) is funded through a trust exempt from taxation under Section 501(a) of the Code. To the Knowledge of the Purchaser, no fact exists which could adversely affect the qualified status of such Purchaser Benefit Plans or the exempt status of such trusts.
(iii) With respect to each Purchaser Benefit Plan, the Purchaser has made available to the Seller accurate and complete copies, if applicable, of: (i) all Purchaser Benefit Plan documents and agreements and related trust agreements or annuity Contracts (including any amendments, modifications or supplements thereto); (ii) all summary plan descriptions and material modifications thereto; (iii) the three (3) most recent Forms 5500, if applicable, and annual report, including all schedules thereto; (iv) the most recent annual and periodic accounting of plan assets; (v) the three (3) most recent nondiscrimination testing reports; (vi) the most recent determination letter received from the IRS, if any; (vii) the most recent actuarial valuation; and (viii) all material written communications between the Purchaser or any Subsidiary or any Purchaser Benefit Plan and any Governmental Authority and relating to a Purchaser Benefit Plan within six (6) years preceding the date of this Agreement.
(iv) With respect to each Purchaser Benefit Plan: (i) such Purchaser Benefit Plan has been administered and enforced in all material respects in accordance with its terms, the Code and ERISA; (ii) neither the Purchaser nor any Subsidiary nor any employee, officer or director thereof no events have occurred that is a fiduciary (under ERISA) with respect to such Purchaser Benefit Plan has breached any of its fiduciary responsibilities, obligations or duties imposed on it by ERISA; (iii) no Action is pending or threatened in writing (other than routine claims for benefits arising in the ordinary course of administration); (iv) nothing has occurred with respect to any Purchaser Benefit Plan that has subjected the Purchaser or any Subsidiary to any material penalty under Section 502 of ERISA or Section 4975 of the Code; and (v) all contributions and premiums due through the Closing Date have been made in all material respects as required under ERISA or have been fully accrued in all material respects on the Purchaser Financials.
(v) No Purchaser Benefit Plan is, and neither the Purchaser or any Subsidiary or any of their respective ERISA Affiliates sponsors, maintains, contributes to, is required to contribute to, or otherwise has or could reasonably be expected to have any current or contingent Liability under or adversely affect such qualified status. The Seller has no liability with respect to, a to any “defined employee benefit plan” (as defined in Section 414(j) of the Code), a “multiemployer plan” (as defined in Section 3(373(3) of ERISA) or a “multiple employer plan” (as described in Section 413(c) of the Code) or is otherwise subject to Title IV of ERISA or Section 412 ERISA, including by reason of the Code. To the Purchaser’s Knowledge, no Purchaser Benefit Plan will become a multiple employer plan with respect to any Purchaser Entity immediately after the Closing Date. Neither the Purchaser nor any Subsidiary currently maintains or has ever maintained, or is required currently or has ever been required to contribute to or otherwise participate in, a multiple employer welfare arrangement or voluntary employees’ beneficiary association as defined in Section 501(c)(9) of the Code. For purposes of this Agreement, “ERISA Affiliate” means, with respect to any Person, any Person or entity (whether or not incorporated) that is under common control or being treated as one a single employer under Section 4001(b)(1) 414 of ERISA the Code with any person or entity other than the Seller. The Seller has no current or potential obligation to provide postemployment health, life or other welfare benefits other than as required under Section 414(b4980B of the Code or any similar applicable Law. Except as set forth on Schedule 4.14(b), (c), (m) or (o) the consummation of the Code.transactions contemplated by this Agreement and any other transfer instrument, certificate, document, agreement, writing or instrument delivered pursuant to this Agreement (collectively, “Ancillary Documents”) will not (A) entitle any current
Appears in 1 contract
Sources: Asset Purchase Agreement (Comstock Holding Companies, Inc.)
Benefit Plans. (ia) Set forth on Schedule 3.19(a7.19(a) is a true and complete list of each material Benefit Plan of the Purchaser and its Subsidiaries a Target Company (each, a “Purchaser Company Benefit Plan”). With respect to each Purchaser Company Benefit Plan, there are no funded benefit obligations for which contributions have not been materially made or properly accrued and there are no material unfunded benefit obligations that have not been accounted for by reserves, or otherwise properly footnoted in accordance with GAAP on the Purchaser Company Financials. Except as set forth on Schedule 3.19(a), neither the Purchaser nor any Subsidiary No Target Company is or has in the past been a member of a “controlled group” for purposes of Section 414(b), (c), (m) or (o) of the Code other than with the Purchaser or another SubsidiaryCode, nor does the Purchaser or any Subsidiary Target Company have any Liability with respect to any collectively-bargained for plans, whether or not subject to the provisions of ERISA. No statement, either written or oral, has been made by any Target Company to any Person with regard to any Company Benefit Plan that was not in accordance with the Company Benefit Plan in any material respect.
(iib) Each Purchaser Company Benefit Plan in all material respects is and has been operated at all times in compliance with all applicable Laws in all material respects, including ERISA and the Code. Each Purchaser Company Benefit Plan which is intended to be “qualified” within the meaning of Section 401(a) of the Code (i) has been determined by the IRS to be so qualified (or is based on a prototype plan which has received a favorable opinion letter) during the period from its adoption to the date of this Agreement and (ii) is funded through a its related trust has been determined to be exempt from taxation under Section 501(a) of the CodeCode or the Target Companies have requested an initial favorable IRS determination of qualification and/or exemption within the period permitted by applicable Law. To the Knowledge of the Purchaser, no No fact exists which could adversely affect the qualified status of such Purchaser Company Benefit Plans or the exempt status of such trusts.
(iiic) With respect to each Purchaser Company Benefit PlanPlan which covers any current or former officer, director, consultant or employee (or beneficiary thereof) of a Target Company, the Company has provided to Purchaser has made available to the Seller accurate and complete copies, if applicable, of: (i) all Purchaser Company Benefit Plan documents texts and agreements and related trust agreements or annuity Contracts (including any amendments, modifications or supplements thereto); (ii) all summary plan descriptions and material modifications thereto; (iii) the three (3) most recent Forms 5500, if applicable, and annual report, including all schedules thereto; (iv) the most recent annual and periodic accounting of plan assets; (v) the three (3) most recent nondiscrimination testing reports; (vi) the most recent determination letter received from the IRS, if any; (vii) the most recent actuarial valuation; and (viii) all material written communications between the Purchaser or any Subsidiary or any Purchaser Benefit Plan and with any Governmental Authority and relating to a Purchaser Benefit Plan within six (6) years preceding the date of this AgreementAuthority.
(ivd) With respect to each Purchaser Company Benefit Plan: (i) such Purchaser Company Benefit Plan has been administered and enforced in all material respects in accordance with its terms, the Code and ERISA; (ii) neither the Purchaser nor any Subsidiary nor any employee, officer or director thereof that is a no breach of fiduciary (under ERISA) with respect to such Purchaser Benefit Plan duty has breached any of its fiduciary responsibilities, obligations or duties imposed on it by ERISAoccurred; (iii) no Action is pending pending, or to the Company’s Knowledge, threatened in writing (other than routine claims for benefits arising in the ordinary course of administration); (iv) nothing has occurred with respect to any Purchaser Benefit Plan that has subjected the Purchaser or any Subsidiary to any material penalty under no prohibited transaction, as defined in Section 502 406 of ERISA or Section 4975 of the Code, has occurred, excluding transactions effected pursuant to a statutory or administration exemption; and (v) all contributions and premiums due through the Closing Date have been made in all material respects as required under ERISA or have been fully accrued in all material respects on the Purchaser Company Financials.
(ve) No Purchaser Company Benefit Plan is, and neither the Purchaser or any Subsidiary or any of their respective ERISA Affiliates sponsors, maintains, contributes to, is required to contribute to, or otherwise has or could reasonably be expected to have any current or contingent Liability under or with respect to, a “defined benefit plan” (as defined in Section 414(j) of the Code), a “multiemployer plan” (as defined in Section 3(37) of ERISA) or a “multiple employer plan” (as described in Section 413(c) of the Code) or is otherwise subject to Title IV of ERISA or Section 412 of the Code, and no Target Company has incurred any Liability or otherwise could have any Liability, contingent or otherwise, under Title IV of ERISA and no condition presently exists that is expected to cause such Liability to be incurred. To the Purchaser’s Knowledge, no Purchaser No Company Benefit Plan will become a multiple employer plan with respect to any Purchaser Entity Target Company immediately after the Closing Date. Neither the Purchaser nor any Subsidiary No Target Company currently maintains or has ever maintained, or is required currently or has ever been required to contribute to or otherwise participate in, a multiple employer welfare arrangement or voluntary employees’ beneficiary association as defined in Section 501(c)(9) of the Code. For purposes of this Agreement, “ERISA Affiliate” means, .
(f) There is no arrangement under any Company Benefit Plan with respect to any Personemployee that would result in the payment of any amount that by operation of Sections 280G or 162(m) of the Code would not be deductible by the Target Companies and no arrangement exists pursuant to which a Target Company will be required to “gross up” or otherwise compensate any person because of the imposition of any excise tax on a payment to such person.
(g) With respect to each Company Benefit Plan which is a “welfare plan” (as described in Section 3(1) of ERISA): (i) no such plan provides medical or death benefits with respect to current or former employees of a Target Company beyond their termination of employment (other than coverage mandated by Law, which is paid solely by such employees); and (ii) there are no reserves, assets, surplus or prepaid premiums under any such plan. Each Target Company has complied with the provisions of Section 601 et seq. of ERISA and Section 4980B of the Code.
(h) The consummation of the transactions contemplated by this Agreement and the Ancillary Documents will not: (i) entitle any individual to severance pay, unemployment compensation or other benefits or compensation; (ii) accelerate the time of payment or vesting, or increase the amount of any compensation due, or in respect of, any Person individual; or entity (iii) result in or satisfy a condition to the payment of compensation that would, in combination with any other payment, result in an “excess parachute payment” within the meaning of Section 280G of the Code. No Target Company has incurred any Liability for any Tax imposed under Chapter 43 of the Code or civil liability under Section 502(i) or (l) of ERISA.
(i) To the extent applicable, the present value of the accrued benefit liabilities (whether or not incorporatedvested) under each Company Benefit Plan, determined as of the end of the Company’s most recently ended fiscal year on the basis of reasonable actuarial assumptions, each of which is reasonable, did not exceed the current value of the assets of such Company Benefit Plan allocable to such benefit liabilities.
(j) Except to the extent required by Section 4980B of the Code or similar state Law, no Target Company provides health or welfare benefits to any former or retired employee or is obligated to provide such benefits to any active employee following such employee’s retirement or other termination of employment or service.
(k) All Company Benefit Plans can be terminated at any time as of or after the Closing Date without resulting in any Liability to Pubco or any Surviving Subsidiary or their respective Affiliates for any additional contributions, penalties, premiums, fees, fines, excise taxes or any other charges or liabilities.
(l) Each Company Benefit Plan that is under common control subject to Section 409A of the Code (each, a “Section 409A Plan”) as of the Closing Date is indicated as such on Schedule 7.19(l). Except as set forth on Schedule 7.19(l)), no Company Options or treated other equity-based awards have been issued or granted by the Company that are, or are subject to, a Section 409A Plan. Except as one employer set forth on Schedule 7.19(l), the Company is not aware of any violation of Section 409A of the Code, the regulations thereunder and other official guidance issued thereunder with respect to any Section 409A Plan. Except as set forth on Schedule 7.19(l)), no Target Company has any obligation to any employee or other service provider with respect to any Section 409A Plan that may be subject to any Tax under Section 4001(b)(1) 409A of ERISA or Section 414(bthe Code. Except as set forth on Schedule 7.19(l)), (c)no payment to be made under any Section 409A Plan is, (m) or (oto the Knowledge of the Company will be, subject to the penalties of Section 409A(a)(1) of the Code. Except as set forth on Schedule 7.19(l), there is no Contract or plan to which any Target Company is a party or by which it is bound to compensate any employee, consultant or director for penalty taxes paid pursuant to Section 409A of the Code.
Appears in 1 contract
Sources: Business Combination Agreement (Healthwell Acquisition Corp. I)
Benefit Plans. (ia) Set forth on Schedule 3.19(a) is a true and complete list of With respect to each material Benefit Plan of the Purchaser and its Subsidiaries a Target Company (each, a “Purchaser Company Benefit Plan”). With respect to each Purchaser Benefit Plan, there are no funded benefit obligations for which contributions have not been materially made or properly accrued and there are no material unfunded benefit obligations that have not been accounted for by reserves, or otherwise properly footnoted in accordance with GAAP on the Purchaser Company Financials. Except as set forth on Schedule 3.19(a), neither the Purchaser nor any Subsidiary No Target Company is or has in the past been a member of a “controlled group” for purposes of Section 414(b), (c), (m) or (o) of the Code other than with the Purchaser or another SubsidiaryCode, nor does the Purchaser or any Subsidiary Target Company have any Liability with respect to any collectively-bargained for plans, whether or not subject to the provisions of ERISA.
(iib) Each Purchaser Except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect with respect to the Target Companies, each Company Benefit Plan in all material respects is and has been operated at all times in compliance with all applicable Laws in all material respects, including ERISA and the Code. Each Purchaser Company Benefit Plan which is intended to be “qualified” within the meaning of Section 401(a) of the Code (i) has been determined by the IRS to be so qualified (or is based on a prototype plan which has received a favorable opinion letter) during the period from its adoption to the date of this Agreement and (ii) is funded through a its related trust has been determined to be exempt from taxation under Section 501(a) of the CodeCode or the Target Companies have requested an initial favorable IRS determination of qualification and/or exemption within the period permitted by applicable Law. To the Knowledge of the PurchaserCompany’s Knowledge, no fact exists which could would reasonably be expected to materially and adversely affect the qualified status of such Purchaser Company Benefit Plans or the exempt status of such trusts.
(iiic) With Except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect with respect to the Target Companies, with respect to each Purchaser Benefit Plan, the Purchaser has made available to the Seller accurate and complete copies, if applicable, of: (i) all Purchaser Benefit Plan documents and agreements and related trust agreements or annuity Contracts (including any amendments, modifications or supplements thereto); (ii) all summary plan descriptions and material modifications thereto; (iii) the three (3) most recent Forms 5500, if applicable, and annual report, including all schedules thereto; (iv) the most recent annual and periodic accounting of plan assets; (v) the three (3) most recent nondiscrimination testing reports; (vi) the most recent determination letter received from the IRS, if any; (vii) the most recent actuarial valuation; and (viii) all material written communications between the Purchaser or any Subsidiary or any Purchaser Benefit Plan and any Governmental Authority and relating to a Purchaser Benefit Plan within six (6) years preceding the date of this Agreement.
(iv) With respect to each Purchaser Company Benefit Plan: (i) such Purchaser Company Benefit Plan has been administered and enforced in all material respects in accordance with its terms, the Code and ERISA; (ii) neither the Purchaser nor no breach of fiduciary duty has occurred in any Subsidiary nor any employee, officer or director thereof that is a fiduciary (under ERISA) with respect to such Purchaser Benefit Plan has breached any of its fiduciary responsibilities, obligations or duties imposed on it by ERISArespect; (iii) no Action is pending pending, or to the Company’s Knowledge, threatened in writing (other than routine claims for benefits arising in the ordinary course of administration); (iv) nothing has occurred with respect to any Purchaser Benefit Plan that has subjected the Purchaser or any Subsidiary to any material penalty under no prohibited transaction, as defined in Section 502 406 of ERISA or Section 4975 of the Code, has occurred, excluding transactions effected pursuant to a statutory or administration exemption; and (v) all contributions and premiums due through the Closing Date have been made in all material respects as required under ERISA or have been fully accrued for by the Target Companies in all material respects on the Purchaser Company Financials.
(v) No Purchaser Benefit Plan is, and neither the Purchaser or any Subsidiary or any of their respective ERISA Affiliates sponsors, maintains, contributes to, is required to contribute to, or otherwise has or could reasonably be expected to have any current or contingent Liability under or with respect to, a “defined benefit plan” (as defined in Section 414(j) of the Code), a “multiemployer plan” (as defined in Section 3(37) of ERISA) or a “multiple employer plan” (as described in Section 413(c) of the Code) or is otherwise subject to Title IV of ERISA or Section 412 of the Code. To the Purchaser’s Knowledge, no Purchaser Benefit Plan will become a multiple employer plan with respect to any Purchaser Entity immediately after the Closing Date. Neither the Purchaser nor any Subsidiary currently maintains or has ever maintained, or is required currently or has ever been required to contribute to or otherwise participate in, a multiple employer welfare arrangement or voluntary employees’ beneficiary association as defined in Section 501(c)(9) of the Code. For purposes of this Agreement, “ERISA Affiliate” means, with respect to any Person, any Person or entity (whether or not incorporated) that is under common control or treated as one employer under Section 4001(b)(1) of ERISA or Section 414(b), (c), (m) or (o) of the Code.
Appears in 1 contract
Sources: Merger Agreement (Forum Merger Corp)
Benefit Plans. (ia) Set forth on Schedule 3.19(a4.19(a) is a true and complete list of each material Benefit Plan of the Purchaser and its Subsidiaries Company (each, a “Purchaser Company Benefit Plan”). With respect to each Purchaser Company Benefit Plan, there are no funded benefit obligations for which contributions have not been materially made or properly accrued and there are no material unfunded benefit obligations that have not been accounted for by reserves, or otherwise properly footnoted in accordance with GAAP on the Purchaser Company Financials. Except as set forth on Schedule 3.19(a), neither the Purchaser The Company is not nor any Subsidiary or has it in the past six (6) years been a member of a “controlled group” for purposes of Section 414(b), (c), (m) or (o) of the Code other than with the Purchaser or another SubsidiaryCode, nor does the Purchaser or any Subsidiary have Company has any Liability with respect to any collectively-bargained for plans, whether or not subject to the provisions of ERISA. No statement, either written or oral, has been made by the Company to any Person with regard to any Company Benefit Plan that was not in accordance with the Company Benefit Plan in any material respect.
(iib) Each Purchaser Company Benefit Plan in all material respects is and has been operated and administered at all times in compliance with all applicable Laws in all material respects, including ERISA and the Code. Each Purchaser Company Benefit Plan which is intended to be “qualified” within the meaning of Section 401(a) of the Code (i) has been determined by the IRS to be so qualified (or is based on a prototype plan which has received a favorable opinion letter) during the period from its adoption to the date of this Agreement and (ii) is funded through a its related trust has been determined to be exempt from taxation under Section 501(a) of the CodeCode or the Company has requested an initial favorable IRS determination of qualification and/or exemption within the period permitted by applicable Law. To the Knowledge of the PurchaserCompany’s Knowledge, no fact exists which could would reasonably be expected to adversely affect the qualified status of such Purchaser Company Benefit Plans or the exempt status of such trusts.
(iiic) With respect to each Purchaser Company Benefit PlanPlan which covers any current or former officer, director, consultant or employee (or beneficiary thereof) of the Company, the Company has provided to Purchaser has made available to the Seller accurate and complete copies, if applicable, of: (i) all Purchaser Company Benefit Plan documents texts and agreements and related trust agreements or annuity Contracts (including any amendments, modifications or supplements thereto); (ii) all summary plan descriptions and material modifications thereto; (iii) the three (3) most recent Forms 5500, if applicable, and annual report, including all schedules thereto; (iv) the most recent annual and periodic accounting of plan assets; (v) the three (3) most recent nondiscrimination testing reports; (vi) the most recent determination letter received from the IRS, if any; (vii) the most recent actuarial valuation; and (viii) all material written communications between the Purchaser or any Subsidiary or any Purchaser Benefit Plan and with any Governmental Authority and relating to a Purchaser Benefit Plan within six (6) years preceding the date of this AgreementAuthority.
(ivd) With respect to each Purchaser Company Benefit Plan: (i) such Purchaser Company Benefit Plan has been administered and enforced in all material respects in accordance with its terms, the Code and ERISA; (ii) neither the Purchaser nor any Subsidiary nor any employee, officer or director thereof that is a no breach of fiduciary (under ERISA) with respect to such Purchaser Benefit Plan duty has breached any of its fiduciary responsibilities, obligations or duties imposed on it by ERISAoccurred; (iii) no Action is pending pending, or to the Company’s Knowledge, threatened in writing (other than routine claims for benefits arising in the ordinary course of administration); (iv) nothing has occurred with respect to any Purchaser Benefit Plan that has subjected the Purchaser or any Subsidiary to any material penalty under no prohibited transaction, as defined in Section 502 406 of ERISA or Section 4975 of the Code, has occurred, excluding transactions effected pursuant to a statutory or administration exemption; and (v) all contributions and premiums due through the Closing Date have been made in all material respects as required under ERISA or have been fully accrued in all material respects on the Purchaser Company Financials.
(ve) No Purchaser Company Benefit Plan is, and neither the Purchaser or any Subsidiary or any of their respective ERISA Affiliates sponsors, maintains, contributes to, is required to contribute to, or otherwise has or could reasonably be expected to have any current or contingent Liability under or with respect to, a “defined benefit plan” (as defined in Section 414(j) of the Code), a “multiemployer plan” (as defined in Section 3(37) of ERISA) or a “multiple employer plan” (as described in Section 413(c) of the Code) or is otherwise subject to Title IV of ERISA or Section 412 of the Code, and the Company has no Liability or otherwise could reasonably be expected to have any Liability, contingent or otherwise, under Title IV of ERISA and no condition presently exists that is expected to cause such Liability to be incurred. To the Purchaser’s Knowledge, no Purchaser No Company Benefit Plan will become a multiple employer plan with respect to any Purchaser Entity the Company immediately after the Closing Date. Neither The Company does not currently maintain nor has in the Purchaser nor any Subsidiary currently maintains or has ever past six (6) years maintained, or nor is required currently or and has ever in the past six (6) years never been required to contribute to or otherwise participate in, a multiple employer welfare arrangement or voluntary employees’ beneficiary association as defined in Section 501(c)(9) of the Code. For purposes of this Agreement, “ERISA Affiliate” means, .
(f) There is no arrangement under any Company Benefit Plan with respect to any Person, employee that would result in the payment of any Person amount that by operation of Sections 280G of the Code would not be deductible by the Company and no arrangement exists pursuant to which the Company will be required to “gross up” or entity otherwise compensate any person because of the imposition of any excise tax on a payment to such person.
(whether or not incorporatedg) that With respect to each Company Benefit Plan which is under common control or treated a “welfare plan” (as one employer under described in Section 4001(b)(13(1) of ERISA): (i) no such plan provides medical or death benefits with respect to current or former employees (or a dependent or beneficiary thereof) of the Company beyond their termination of employment (other than coverage mandated by Law, which is paid solely by such employees, dependents or beneficiaries); and (ii) there are no reserves, assets, surplus or prepaid premiums under any such plan. The Company has complied in all material respects with the provisions of Section 601 et seq. of ERISA or and Section 414(b), (c), (m) or (o) 4980B of the Code.
(h) The Company and each Company Benefit Plan that is a “group health plan” as defined in Section 733(a)(1) of ERISA (each, a “Health Plan”) is and has been for the past six (6) years in compliance, in all material respects, with the Patient Protection and Affordable Care Act of 2010, and, to the Knowledge of the Company, no event has occurred, and no condition or circumstance exists, that would subject the Company or any Health Plan to any material Liability for penalties or excise Taxes under Sections 4980D or 4980H of the Code.
(i) The consummation of the transactions contemplated by this Agreement and the Ancillary Documents will not: (i) entitle any individual to severance pay, unemployment compensation or other benefits or compensation; (ii) accelerate the time of payment or vesting, or increase the amount of any compensation due, or in respect of, any individual; or (iii) result in or satisfy a condition to the payment of compensation that would, in combination with any other payment, result in an “excess parachute payment” within the meaning of Section 280G of the Code. The Company has not incurred any Liability for any Tax imposed under Chapter 43 of the Code or civil liability under Section 502(i) or (l) of ERISA.
(j) Except to the extent required by Section 4980B of the Code or similar state Law, the Company provides no health or welfare benefits to any former or retired employee or is obligated to provide such benefits to any active employee following such employee’s retirement or other termination of employment or service.
(k) Each Company Benefit Plan subject to Section 409A of the Code has been operated, administered and is in documentary compliance with the applicable provisions of Section 409A of the Code, the regulations thereunder and other official guidance issued thereunder. There is no Contract or plan to which the Company is a party or by which it is bound to compensate any employee, consultant or director for penalty taxes paid pursuant to Section 409A of the Code.
Appears in 1 contract
Benefit Plans. (ia) Set forth on Schedule 3.19(a4.19(a) is a true and complete list of each material Benefit Plan which is sponsored, maintained, contributed to, or required to be contributed to by the Company and, with respect to any such Benefit Plans which are subject to Section 401(a) of the Purchaser Code, any trade or business (whether or not incorporated) which is or at any relevant time was treated as a single employer with the Company within the meaning of Section 414 of the Code (an “ERISA Affiliate”), for the benefit of any Person who performs or who has performed services for the Company and its Subsidiaries with respect to which the Company or any ERISA Affiliate has any material liability or obligation (each, a “Purchaser Company Benefit Plan”). With respect to each Purchaser Company Benefit Plan, there are no funded benefit obligations for which contributions have not been materially made or properly accrued and there are no material unfunded benefit obligations that have not been accounted for by reserves, or otherwise properly footnoted in accordance with GAAP on the Purchaser Company Financials. Except as set forth on Schedule 3.19(a), neither the Purchaser nor any Subsidiary or The Company is not and has not in the past been a member of a “controlled group” for purposes of Section 414(b), (c), (m) or (o) of the Code other than with the Purchaser or another SubsidiaryCode, nor does the Purchaser or any Subsidiary Company have any Liability with respect to any collectively-bargained for plansBenefit Plans, whether or not subject to the provisions of ERISA. No statement, either written or oral, has been made by the Company to any Person with regard to any Company Benefit Plan that was not in accordance with the terms of the Company Benefit Plan in any material respect.
(iib) Each Purchaser Company Benefit Plan in all material respects is and has been operated at all times in compliance with all applicable Laws in all material respects, including ERISA and the Code. Each Purchaser Company Benefit Plan which is intended to be “qualified” within the meaning of Section 401(a) of the Code (i) has been determined by the IRS to be so qualified (or is based on a prototype plan which has received a favorable IRS opinion letter) during the period from its adoption to the date of this Agreement and (ii) is funded through a its related trust has been determined to be exempt from taxation under Section 501(a) of the CodeCode or the Company has requested an initial favorable IRS determination of qualification and/or exemption within the period permitted by applicable Law. To the Knowledge of the Purchaser, no No fact exists which could adversely affect the qualified status of such Purchaser Company Benefit Plans or the exempt status of such trusts.
(iiic) With respect to each Purchaser Company Benefit Plan, the Company has provided to Purchaser has made available to the Seller accurate and complete copies, if applicable, of: (i) all Purchaser Company Benefit Plan documents texts and agreements and related trust agreements or annuity Contracts (including any amendments, modifications or supplements thereto); (ii) all summary plan descriptions and summaries of material modifications thereto; (iii) the three (3) most recent Forms annual reports (Form 5500), if applicable, and annual report, including all schedules thereto; (iv) the most recent annual and periodic accounting of plan assets; (v) the three (3) most recent nondiscrimination testing reports; (vi) the most recent determination or opinion letter received from the IRS, if any; (vii) the most recent actuarial valuation; and (viii) all material written communications between the Purchaser or any Subsidiary or any Purchaser Benefit Plan and with any Governmental Authority and relating to a Purchaser Benefit Plan within six (6) years preceding the date of this AgreementAuthority.
(ivd) With respect to each Purchaser Company Benefit Plan: (i) such Purchaser Company Benefit Plan has been administered and enforced in all material respects in accordance with its terms, the Code and ERISA; (ii) neither the Purchaser nor any Subsidiary nor any employee, officer or director thereof that is a no breach of fiduciary (under ERISA) with respect to such Purchaser Benefit Plan duty has breached any of its fiduciary responsibilities, obligations or duties imposed on it by ERISAoccurred; (iii) no Action is pending pending, or to the Company’s Knowledge, threatened in writing (other than routine claims for benefits arising in the ordinary course of administration); (iv) nothing has occurred with respect to any Purchaser Benefit Plan that has subjected the Purchaser or any Subsidiary to any material penalty under no prohibited transaction, as defined in Section 502 406 of ERISA or and/or Section 4975 of the Code, has occurred; and (v) all contributions and premiums due through the Closing Date have been made in all material respects as required under ERISA or have been fully accrued in all material respects on the Purchaser Company Financials.
(ve) No Purchaser Company Benefit Plan is, and neither the Purchaser or any Subsidiary or any of their respective ERISA Affiliates sponsors, maintains, contributes to, is required to contribute to, or otherwise has or could reasonably be expected to have any current or contingent Liability under or with respect to, a “defined benefit plan” (as defined in Section 414(j) of the Code), a “multiemployer plan” (as defined in Section 3(37) of ERISA) or a “multiple employer plan” (as described in Section 413(c) of the Code) or is otherwise subject to Title IV of ERISA or Section 412 of the Code, and the Company has not incurred any Liability or otherwise could not have any Liability, contingent or otherwise, under Title IV of ERISA and no condition presently exists that is expected to cause such Liability to be incurred. To the Purchaser’s Knowledge, no Purchaser No Company Benefit Plan will become a multiple employer plan with respect to any Purchaser Entity the Company immediately after the Closing Date. Neither the Purchaser nor any Subsidiary The Company does not currently maintains or maintain and has ever never maintained, or and is currently not required currently or and has ever never been required to contribute to or otherwise participate in, a multiple employer welfare arrangement (as defined in Section 3(40) of ERISA) or voluntary employees’ beneficiary association as defined in Section 501(c)(9) of the Code. For purposes of this Agreement, “ERISA Affiliate” means, .
(f) There is no arrangement under any Company Benefit Plan with respect to any PersonCompany employee that would result in the payment of any amount that by operation of Section 280G or 162(m) of the Code would not be deductible by the Company, and no arrangement exists pursuant to which the Company will be required to “gross up” or otherwise compensate any person because of the imposition of any excise or penalty tax on a payment to such person.
(g) With respect to each Company Benefit Plan which is a “welfare plan” (as defined in Section 3(1) of ERISA): (i) no such plan provides benefits with respect to current or former employees of the Company beyond their termination of employment (other than coverage mandated by Law, which is paid solely by such employees); and (ii) except as set forth in Schedule 4.19(g), there are no reserves, assets, surplus or prepaid premiums under any such plan. The Company has complied with the provisions of Sections 601 et seq. of ERISA and Section 4980B of the Code.
(h) The consummation of the transactions contemplated by this Agreement and the Ancillary Documents will not: (i) entitle any individual to severance pay, unemployment compensation or other benefits or compensation; (ii) accelerate the time of payment or vesting, or increase the amount of any compensation due, or in respect of, any Person individual; or entity (iii) result in or satisfy a condition to the payment of compensation that would, in combination with any other payment, result in an “excess parachute payment” within the meaning of Section 280G of the Code. The Company has not incurred any Liability for any Tax imposed under Chapter 43 of the Code or civil liability under Section 502(i) or (l) of ERISA.
(i) To the extent applicable, the present value of the accrued benefit liabilities (whether or not incorporatedvested) under each Company Benefit Plan, determined as of the end of the Company’s most recently ended fiscal year on the basis of actuarial assumptions, each of which is reasonable, did not exceed the current value of the assets of such Company Benefit Plan allocable to such benefit liabilities.
(j) All Company Benefit Plans can be terminated at any time as of or after the Closing Date without resulting in any Liability to Pubco or any Surviving Subsidiary or their respective Affiliates for any additional contributions, penalties, premiums, fees, fines, excise taxes or any other charges or liabilities.
(k) Each Company Benefit Plan that provides deferred compensation subject to Section 409A of the Code (each, a “Section 409A Plan”) as of the Closing Date is under common control indicated as such on Schedule 4.19(k). No Company Profits Interest Units or treated as one employer other equity-based awards have been issued or granted by the Company that are, or are subject to, a Section 409A Plan. Each Section 409A Plan has been administered in compliance, and is in documentary compliance, with the applicable provisions of Section 409A of the Code and the official guidance issued thereunder. The Company has no obligations to any employee or other service provider with respect to any Section 409A Plan that may be subject to any Tax under Section 4001(b)(1) 409A of ERISA the Code. No payment to be made under any Section 409A Plan is, or to the Knowledge of the Company will be, subject to the penalties of Section 414(b), (c), (m) or (o409A(a)(1) of the Code. There is no Contract or plan to which the Company is a party or by which it is bound to compensate any service provider for penalty taxes paid pursuant to Section 409A of the Code.
Appears in 1 contract
Benefit Plans. (ia) Set forth on Schedule 3.19(a4.19(a) of the Company Disclosure Schedules is a true and complete list of each material Benefit Plan of the Purchaser and its Subsidiaries a Target Company (each, a “Purchaser Company Benefit Plan”). With respect to each Purchaser Company Benefit Plan, there are no funded benefit obligations for which contributions have not been materially made or properly accrued and there are no material unfunded benefit obligations that have not been accounted for by reserves, or otherwise properly footnoted in accordance with GAAP on the Purchaser Company Financials. Except as set forth on Schedule 3.19(a), neither the Purchaser nor any Subsidiary No Target Company is or has in the past ever been a member of a “controlled group” for purposes of Section 414(b), (c), (m) or (o) of the Code other than with the Purchaser or another SubsidiaryCode, nor does the Purchaser or any Subsidiary Target Company have any Liability with respect to any collectively-bargained for plans, whether or not subject to the provisions of ERISA. No statement, either written or oral, has been made by any Target Company to any Person with regard to any Company Benefit Plan that was not in accordance with the terms of such Company Benefit Plan in any material respect.
(iib) Each Purchaser Company Benefit Plan in all material respects is and has been operated at all times in compliance with all applicable Laws in all material respects, including ERISA and the Code. Each Purchaser Company Benefit Plan which is intended to be “qualified” within the meaning of Section 401(a) of the Code (i) has been determined by the IRS to be so qualified (or is based on a prototype plan which has received a favorable opinion letter) during the period from since its adoption to the date of this Agreement and (ii) is funded through a its related trust has been determined to be exempt from taxation under Section 501(a) of the CodeCode or the Target Companies have requested an initial favorable IRS determination of qualification and/or exemption within the period permitted by applicable Law. To the Knowledge of the Purchaser, no No fact exists which could adversely affect the qualified status of such Purchaser Company Benefit Plans or the exempt status of such trusts.
(iiic) With respect to each Purchaser Company Benefit Plan, the Company has provided to Purchaser has made available to the Seller accurate and complete copies, if applicable, of: (i) all Purchaser Company Benefit Plan documents texts and agreements and related trust agreements or annuity Contracts (including any amendments, modifications or supplements thereto); (ii) all summary plan descriptions and material modifications thereto; (iii) the three (3) most recent Forms 5500, if applicable, and annual report, including all schedules thereto; (iv) the most recent annual and periodic accounting of plan assets; (v) the three (3) most recent nondiscrimination testing reports; (vi) the most recent determination letter received from the IRS, if any; (vii) the most recent actuarial valuation; and (viii) all non-routine correspondence or other material written communications between the Purchaser or any Subsidiary or any Purchaser Benefit Plan and with any Governmental Authority and relating to a Purchaser Benefit Plan within six (6) years preceding the date of this AgreementAuthority.
(ivd) With respect to each Purchaser Company Benefit Plan: (i) such Purchaser Company Benefit Plan has been administered and enforced in all material respects in accordance with its terms, the Code and ERISA; (ii) neither the Purchaser nor any Subsidiary nor any employee, officer or director thereof that is a no breach of fiduciary (under ERISA) with respect to such Purchaser Benefit Plan duty has breached any of its fiduciary responsibilities, obligations or duties imposed on it by ERISAoccurred; (iii) no Action is pending pending, or to the Company’s Knowledge, threatened in writing (other than routine claims for benefits arising in the ordinary course of administration); (iv) nothing has occurred with respect to any Purchaser Benefit Plan that has subjected the Purchaser or any Subsidiary to any material penalty under no prohibited transaction, as defined in Section 502 406 of ERISA or Section 4975 of the Code, has occurred, excluding transactions effected pursuant to a statutory or administration exemption; and (v) all contributions and premiums due through the Closing Date have been made in all material respects as required under ERISA or have been fully accrued in all material respects on the Purchaser Company Financials.
(ve) No Purchaser Company Benefit Plan is, and neither the Purchaser or any Subsidiary or any of their respective ERISA Affiliates sponsors, maintains, contributes to, is required to contribute to, or otherwise has or could reasonably be expected to have any current or contingent Liability under or with respect to, a “defined benefit plan” (as defined in Section 414(j) of the Code), a “multiemployer plan” (as defined in Section 3(37) of ERISA) or a “multiple employer plan” (as described in Section 413(c) of the Code) or is otherwise subject to Title IV of ERISA, Section 302 of ERISA or Section 412 of the Code, and no Target Company has ever incurred any Liability or otherwise could have any Liability, contingent or otherwise, under Title IV of ERISA and no condition exists that could be expected to cause such Liability to be incurred. To the Purchaser’s Knowledge, no Purchaser No Company Benefit Plan will become a multiple employer plan with respect to any Purchaser Entity Target Company immediately after the Closing Date. Neither the Purchaser nor any Subsidiary No Target Company currently maintains or has ever maintained, or is required currently or has ever been required to contribute to or otherwise participate in, a multiple employer welfare arrangement or voluntary employees’ beneficiary association as defined in Section 501(c)(9) of the Code. For purposes of this Agreement, “ERISA Affiliate” means, .
(f) There is no arrangement under any Company Benefit Plan with respect to any Personemployee or service provider that would result in the payment of any amount that by operation of Sections 280G or 162(m) of the Code would not be deductible by the Target Companies and no arrangement exists pursuant to which a Target Company will be required to “gross up” or otherwise compensate any person because of the imposition of any tax or related interest or penalties incurred by such person, any Person or entity (whether or not incorporated) that is under common control or treated as one employer including under Section 4001(b)(1) of ERISA or Section 414(b), (c), (m) or (o) 409A and 4999 of the Code.
(g) With respect to each Company Benefit Plan which is a “welfare plan” (as described in Section 3(1) of ERISA): (i) no such plan provides medical or death benefits with respect to current or former employees or service provider of a Target Company beyond their termination of employment (other than coverage mandated by Law, which is paid solely by such employees); and (ii) there are no reserves, assets, surplus or prepaid premiums under any such plan. Each Target Company has complied with the provisions of Section 601 et seq. of ERISA and Section 4980B of the Code.
(h) The consummation of the transactions contemplated by this Agreement and the Ancillary Documents (alone or in combination with another event) will not: (i) entitle any individual to severance pay, unemployment compensation or other benefits or compensation; (ii) accelerate the time of payment, funding or
Appears in 1 contract
Sources: Merger Agreement (First Light Acquisition Group, Inc.)
Benefit Plans. (ia) Set forth on Schedule 3.19(aSection 5.13(a) is of the Company Disclosure Letter contains a true and complete list of each material Benefit Plan under which (i) any current or former employee, director or consultant of the Purchaser Company (other than any portfolio company of the Funds) (the “Company Employees”) has any present or future right to benefits and its Subsidiaries which are contributed to, sponsored by or maintained by the Company (each, a other than any portfolio company of the Funds) or (ii) the Company (other than any portfolio company of the Funds) has had or has any present or future liability. All such Benefit Plans shall be collectively referred to as the “Purchaser Company Benefit PlanPlans”). .
(b) With respect to each Purchaser Company Benefit Plan, there are no funded benefit obligations for which contributions have not been materially Plan the Company has made or properly accrued and there are no material unfunded benefit obligations that have not been accounted for by reserves, or otherwise properly footnoted in accordance with GAAP on available to the Purchaser Financials. Except as set forth on Schedule 3.19(a)a current, neither accurate and complete copy (or, to the Purchaser nor extent no such copy exists, an accurate description) thereof and, to the extent applicable: (i) any Subsidiary related trust agreement or has in other funding instrument; (ii) the past been a member of a “controlled group” most recent determination letter, if applicable; (iii) any summary plan description; and (iv) for purposes of Section 414(b)the two most recent years (A) the Form 5500 and attached schedules, (c)B) audited financial statements and (C) actuarial valuation reports, (m) or (o) of the Code other than with the Purchaser or another Subsidiary, nor does the Purchaser or any Subsidiary have any Liability with respect to any collectively-bargained for plans, whether or not subject to the provisions of ERISAas applicable.
(iii) Each Purchaser Company Benefit Plan has been established and administered in all material respects is in accordance with its terms, and has been operated in material compliance with all the applicable Laws in all material respectsprovisions of ERISA, including ERISA the Code and the Code. Each Purchaser other Applicable Laws; (ii) each Company Benefit Plan which that is intended to be “qualified” qualified within the meaning of Section 401(a) of the Code (i) has been determined by the IRS to be so qualified (or is based on a prototype plan which has received a favorable opinion letter) during the period from determination letter as to its adoption to the date of this Agreement and (ii) is funded through a trust exempt from taxation under Section 501(a) of the Code. To the Knowledge of the Purchaser, no fact exists which could adversely affect the qualified status of such Purchaser Benefit Plans or the exempt status of such trusts.
(iii) With respect to each Purchaser Benefit Plan, the Purchaser has made available to the Seller accurate and complete copies, if applicable, of: (i) all Purchaser Benefit Plan documents and agreements and related trust agreements or annuity Contracts (including any amendments, modifications or supplements thereto); (ii) all summary plan descriptions and material modifications thereto; (iii) the three (3) most recent Forms 5500, if applicablequalification, and annual report, including all schedules thereto; (iv) the most recent annual and periodic accounting of plan assets; (v) the three (3) most recent nondiscrimination testing reports; (vi) the most recent determination letter received from the IRS, if any; (vii) the most recent actuarial valuation; and (viii) all material written communications between the Purchaser or any Subsidiary or any Purchaser Benefit Plan and any Governmental Authority and relating to a Purchaser Benefit Plan within six (6) years preceding the date of this Agreement.
(iv) With respect to each Purchaser Benefit Plan: (i) such Purchaser Benefit Plan has been administered and enforced in all material respects in accordance with its terms, the Code and ERISA; (ii) neither the Purchaser nor any Subsidiary nor any employee, officer or director thereof that is a fiduciary (under ERISA) with respect to such Purchaser Benefit Plan has breached any of its fiduciary responsibilities, obligations or duties imposed on it by ERISA; (iii) no Action is pending or threatened in writing (other than routine claims for benefits arising in the ordinary course of administration); (iv) nothing has occurred with respect occurred, whether by action or failure to any Purchaser Benefit Plan act, that has subjected the Purchaser or any Subsidiary to any material penalty under Section 502 of ERISA or Section 4975 of the Code; and (v) all contributions and premiums due through the Closing Date have been made in all material respects as required under ERISA or have been fully accrued in all material respects on the Purchaser Financials.
(v) No Purchaser Benefit Plan is, and neither the Purchaser or any Subsidiary or any of their respective ERISA Affiliates sponsors, maintains, contributes to, is required to contribute to, or otherwise has or could reasonably be expected to have cause the loss of such qualification; and (iii) the Company has not incurred any current or contingent Liability projected liability in respect of post-employment or post-retirement health, medical or life insurance benefits for current, former or retired employees of Company, except as required to avoid an excise tax under or with respect to, a “defined benefit plan” (as defined in Section 414(j) 4980B of the Code), 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 is a “multiemployer plan” (as defined in Section 3(374001(a)(3) of ERISA) and neither the Company nor any member of its Controlled Group has at any time sponsored or contributed to, or has or had any liability or obligation in respect of, any multiemployer plan.
(e) No Company Benefit Plan exists that, as a “multiple employer plan” result of the execution of this Agreement and consummation of the transactions contemplated hereby, will (as described i) entitle any Company Employee to any increase in Section 413(cseverance pay 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 Code) amount payable or is otherwise subject to Title IV of ERISA or Section 412 result in any other material obligation pursuant to, any of the Code. To Company Benefit Plans, (iii) limit or restrict the Purchaser’s Knowledgeright of the Company to merge, no Purchaser amend or terminate any of the Company Benefit Plan will become a multiple employer plan Plans, (iv) cause the Company to record additional compensation expense on its income statement with respect to any Purchaser Entity immediately after the Closing Date. Neither the Purchaser nor any Subsidiary currently maintains outstanding stock option or has ever maintainedother equity-based award, or is required currently or has ever been required to contribute to or otherwise participate in, a multiple employer welfare arrangement or voluntary employees’ beneficiary association as defined (v) result in Section 501(c)(9) payments under any of the Code. For purposes of this Agreement, “ERISA Affiliate” means, with respect to any Person, any Person or entity (whether or Company Benefit Plans which would not incorporated) that is under common control or treated as one employer be deductible under Section 4001(b)(1) of ERISA or Section 414(b), (c), (m) or (o) 280G of the Code.
(f) None of the Company Accounts has to date constituted a “plan assets fund” subject to ERISA.
Appears in 1 contract
Benefit Plans. (ia) Set forth on Schedule 3.19(a5.18(a) is a true and complete list of each material Benefit Plan of the Purchaser and its Subsidiaries a Target Company (each, a “Purchaser Company Benefit Plan”). With respect to each Purchaser Company Benefit Plan, there are no funded benefit obligations for which contributions have not been materially made or properly accrued and there are no material unfunded benefit obligations that have not been accounted for by reserves, or otherwise properly footnoted in accordance with GAAP on the Purchaser Company Financials. Except as set forth on Schedule 3.19(a), neither the Purchaser nor any Subsidiary No Target Company is or has in the past been a member of a “controlled group” for purposes of Section 414(b), (c), (m) or (o) of the Code other than with the Purchaser or another SubsidiaryCode, nor does the Purchaser or any Subsidiary Target Company have any Liability with respect to any collectively-bargained for plans, whether or not subject to the provisions of ERISA. No statement, either written or oral, has been made by any Target Company to any Person with regard to any Company Benefit Plan that was not in accordance with the Company Benefit Plan in any material respect.
(iib) Each Purchaser Except as set forth on Schedule 5.18(b), each Company Benefit Plan in all material respects is and has been operated at all times in compliance with all applicable Laws in all material respects, including ERISA and the Code. Each Purchaser Company Benefit Plan which is intended to be “qualified” within the meaning of Section 401(a) of the Code (i) has been determined by the IRS to be so qualified (or is based on a prototype plan which has received a favorable opinion letter) during the period from its adoption to the date of this Agreement and (ii) is funded through a its related trust has been determined to be exempt from taxation under Section 501(a) of the CodeCode or the Target Companies have requested an initial favorable IRS determination of qualification and/or exemption within the period permitted by applicable Law. To the Knowledge of the Purchaser, no No fact exists which could adversely affect the qualified status of such Purchaser Company Benefit Plans or the exempt status of such trusts.
(iiic) With respect to each Purchaser Company Benefit Plan, the Purchaser Company has made available provided to the Seller SPAC accurate and complete copies, if applicable, of: (i) all Purchaser Company Benefit Plan documents texts and agreements and related trust agreements or annuity Contracts (including any amendments, modifications or supplements thereto); ) or an accurate written summary of any Company Benefit Plan which is unwritten, (ii) all summary plan descriptions and material modifications thereto; , (iii) the three (3) most recent Forms 5500, if applicable, and annual report, including all schedules thereto; , (iv) the most recent annual and periodic accounting of plan assets; , (v) the three (3) most recent nondiscrimination testing reports; , (vi) the most recent determination letter received from the IRS, if any; , (vii) the most recent actuarial valuation; , and (viii) all material written communications between the Purchaser or any Subsidiary or any Purchaser Benefit Plan and with any Governmental Authority and relating to a Purchaser Benefit Plan within six (6) years preceding the date of this AgreementAuthority.
(ivd) With Except as set forth on Schedule 5.18(d), with respect to each Purchaser Company Benefit Plan: (i) such Purchaser Company Benefit Plan has been administered and enforced in all material respects in accordance with its termsterms and all applicable Laws, including the Code and ERISA; , (ii) neither the Purchaser nor no breach of fiduciary duty that could reasonably be expected to result in Liability to any Subsidiary nor any employeeTarget Company has occurred, officer or director thereof that is a fiduciary (under ERISA) with respect to such Purchaser Benefit Plan has breached any of its fiduciary responsibilities, obligations or duties imposed on it by ERISA; (iii) no Action is pending pending, or to the Company’s Knowledge, threatened in writing (other than routine claims for benefits arising in the ordinary course of administration); , (iv) nothing has occurred with respect to any Purchaser Benefit Plan that has subjected the Purchaser or any Subsidiary to any material penalty under no prohibited transaction, as defined in Section 502 406 of ERISA or Section 4975 of the Code, has occurred that could reasonably be likely to result in Liability to any Target Company, excluding transactions effected pursuant to a statutory or administration exemption; (v) no filing has been made with respect to any Company Benefit Plan under any voluntary correction program; (vi) there has been no amendment to, written interpretation or announcement (whether or not written) by any Target Company relating to, any change in participation or coverage under, any Company Benefit Plan that would materially increase the expense of maintaining such Company Benefit Plan above the level of expense incurred with respect to such Company Benefit Plan for the most recent full fiscal year included in the Company Financials; and (vvii) all contributions and premiums due through the Closing Date have been made in all material respects as required under all applicable Laws, including the Code and ERISA or have been fully accrued in all material respects on the Purchaser Company Financials.
(ve) No Purchaser Benefit Plan isDuring the six (6) year period preceding the Effective Time, and neither the Purchaser or any Subsidiary no Target Company or any of their respective ERISA Affiliates sponsorshas maintained, maintains, contributes contributed to, is required sponsored, had an obligation to contribute toto or any Liability, whether absolute or otherwise has or could reasonably be expected to have any current or contingent Liability under or contingent, with respect to, to (i) a “defined benefit plan” (as defined in Section 414(j) of the Code), (ii) a “multiemployer plan” (as defined in Section 3(37) of ERISA) or (iii) a “multiple employer plan” (as described in Section 413(c) of the Code) or ). No Company Benefit Plan is otherwise subject to Title IV of ERISA or Section 412 of the Code, and neither the Target Company nor any ERISA Affiliate has incurred any Liability or otherwise could have any Liability, contingent or otherwise, under Title IV of ERISA and no condition presently exists that is expected to cause such Liability to be incurred. To the Purchaser’s Knowledge, no Purchaser No Company Benefit Plan will become a multiple employer plan with respect to any Purchaser Entity Target Company immediately after the Closing Date. Neither the Purchaser nor any Subsidiary No Target Company currently maintains or has ever maintained, or is required currently or has ever been required to contribute to or otherwise participate in, a multiple employer welfare arrangement or voluntary employees’ beneficiary association as defined in Section 501(c)(9) of the Code. For purposes of this Agreement, “ERISA Affiliate” means, .
(f) There is no arrangement under any Company Benefit Plan with respect to any Personemployee that would result in the payment of any amount that by operation of Sections 280G or 162(m) of the Code would not be deductible by the Target Companies and no arrangement exists pursuant to which a Target Company will be required to “gross up” or otherwise compensate any person because of the imposition of any excise or other tax on a payment to such person.
(g) With respect to each Company Benefit Plan which is a “welfare plan” (as described in Section 3(1) of ERISA): (i) no such plan provides medical or death benefits with respect to current or former employees of a Target Company beyond their termination of employment (other than coverage mandated by Law, which is paid solely by such employees); and (ii) there are no reserves, assets, surplus or prepaid premiums under any such plan. Each Target Company has complied with the provisions of Section 601 et seq. of ERISA and Section 4980B, 4980D, 4980H, 6721 and 6722 of the Code.
(h) Except as set forth on Schedule 5.18(h), the consummation of the transactions contemplated by this Agreement and the Ancillary Documents will not: (i) entitle any individual to severance pay, unemployment compensation or other benefits or compensation, (ii) accelerate the time of payment, funding or vesting, or increase the amount of any compensation due, or in respect of, any Person individual, or entity (iii) result in or satisfy a condition to the payment of compensation that would, in combination with any other payment, result in an “excess parachute payment” within the meaning of Section 280G of the Code. No Target Company has incurred any Liability for any Tax imposed under Chapter 43 of the Code or civil liability under Section 502(i) or (l) of ERISA.
(i) Except to the extent required by Section 4980B of the Code or similar state Law, no Target Company provides health or welfare benefits to any former or retired employee or is obligated to provide such benefits to any active employee following such employee’s retirement or other termination of employment or service.
(j) All Company Benefit Plans can be terminated at any time as of or after the Closing Date without resulting in any Liability to the Surviving Subsidiaries or Pubco, or their respective Affiliates for any additional contributions, penalties, premiums, fees, fines, excise taxes or any other charges or liabilities.
(k) Each Company Benefit Plan that is subject to Section 409A of the Code (each, a “Section 409A Plan”) as of the Closing Date is indicated as such on Schedule 5.18(k). No equity-based awards have been issued or granted by the Company that are, or are subject to, a Section 409A Plan. Except as set forth on Schedule 5.18(k), (i) each Section 409A Plan has been administered in compliance, and is in documentary compliance, with the applicable provisions of Section 409A of the Code, the regulations thereunder and other official guidance issued thereunder, (ii) no Target Company has any obligation to any employee or other service provider with respect to any Section 409A Plan that may be subject to any Tax under Section 409A of the Code, and (iii) no payment to be made under any Section 409A Plan is, or to the Knowledge of the Company will be, subject to the penalties of Section 409A(a)(1) of the Code. There is no Contract or plan to which any Target Company is a party or by which it is bound to compensate, reimburse or indemnify any employee, consultant or director for any Taxes or interest imposed pursuant to Section 409A of the Code.
(l) Each Foreign Pension Plan, in form and operation, materially complies with its terms and with the requirements of all applicable Laws and has been maintained, where required, in good standing with applicable regulatory authorities. All contributions required to be made with respect to a Foreign Pension Plan have been timely made, and no Foreign Pension Plan has any Liability which is not properly accrued on the Company Financials. No Target Company has incurred any obligation in connection with the termination of, or withdrawal from, any Foreign Pension Plan. The present value of the accrued benefit Liabilities (whether or not incorporatedvested) that is under common control or treated each Foreign Pension Plan, determined as one employer under Section 4001(b)(1) of ERISA or Section 414(b), (c), (m) or (o) of the Codeend of the Target Company’s most recently ended fiscal year on the basis of actuarial assumptions, each of which is reasonable, did not exceed the current value of the assets of such Foreign Pension Plan allocable to such benefit Liabilities.
Appears in 1 contract
Sources: Business Combination Agreement (Blue Acquisition Corp/Cayman)
Benefit Plans. (ia) Set forth on Schedule 3.19(a5.19(a) is a true and complete list of each material Benefit Plan of the Purchaser and its Subsidiaries a Target Company (each, a “Purchaser Company Benefit Plan”). With respect to each Purchaser Company Benefit Plan, there are no funded benefit obligations for which contributions have not been materially made or properly accrued and there are no material unfunded benefit obligations that have not been accounted for by reserves, or otherwise properly footnoted in accordance with GAAP on the Purchaser Company Financials. Except as set forth on Schedule 3.19(a), neither the Purchaser nor any Subsidiary No Target Company is or has in the past been a member of a “controlled group” for purposes of Section 414(b), (c), (m) or (o) of the Code other than with the Purchaser or another SubsidiaryCode, nor does the Purchaser or any Subsidiary Target Company have any Liability with respect to any collectively-bargained for plans, whether or not subject to the provisions of ERISA. No written statement or the to the Knowledge of the Sellers, oral statement, has been made by any Target Company to any Person with regard to any Company Benefit Plan that was not in accordance with the Company Benefit Plan in any material respect.
(iib) Each Purchaser Company Benefit Plan in all material respects is and has been operated at all times in compliance with all applicable Laws in all material respects, including ERISA and the Code. Each Purchaser Company Benefit Plan which is intended to be “qualified” within the meaning of Section 401(a) of the Code (i) has been determined by the IRS to be so qualified (or is based on a prototype plan which has received a favorable opinion letter) during the period from its adoption to the date of this Agreement and (ii) is funded through a its related trust has been determined to be exempt from taxation under Section 501(a) of the CodeCode or the Target Companies have requested an initial favorable IRS determination of qualification and/or exemption within the period permitted by applicable Law. To the Knowledge knowledge of the PurchaserSellers, no fact exists which could adversely affect the qualified status of such Purchaser Company Benefit Plans or the exempt status of such trusts.
(iiic) With respect to each Purchaser Company Benefit PlanPlan which covers any current or former officer, manager, consultant or employee (or beneficiary thereof) of a Target Company, the Sellers have provided to Purchaser has made available to the Seller accurate and complete copies, if applicable, of: (i) all Purchaser Company Benefit Plan documents texts and agreements and related trust agreements or annuity Contracts (including any amendments, modifications or supplements thereto); (ii) all summary plan descriptions and material modifications thereto; (iii) the three (3) most recent Forms 5500, if applicable, and annual report, including all schedules thereto; (iv) the most recent annual and periodic accounting of plan assets; (v) the three (3) most recent nondiscrimination testing reports; (vi) the most recent determination letter received from the IRS, if any; and (vii) the most recent actuarial valuation; and (viii) all material written communications between the Purchaser or any Subsidiary or any Purchaser Benefit Plan and any Governmental Authority and relating to a Purchaser Benefit Plan within six (6) years preceding the date of this Agreement.
(ivd) With respect to each Purchaser Company Benefit Plan: (i) such Purchaser Company Benefit Plan has been administered and enforced in all material respects in accordance with its terms, the Code and ERISA; (ii) neither the Purchaser nor any Subsidiary nor any employee, officer or director thereof that is a no breach of fiduciary (under ERISA) with respect to such Purchaser Benefit Plan duty has breached any of its fiduciary responsibilities, obligations or duties imposed on it by ERISAoccurred; (iii) no Action is pending pending, or to the Sellers’ Knowledge, threatened in writing (other than routine claims for benefits arising in the ordinary course of administration); (iv) nothing has occurred with respect to any Purchaser Benefit Plan that has subjected the Purchaser or any Subsidiary to any material penalty under no prohibited transaction, as defined in Section 502 406 of ERISA or Section 4975 of the Code, has occurred, excluding transactions effected pursuant to a statutory or administration exemption; and (v) all contributions and premiums due through the Closing Date date hereof have been made in all material respects as required under ERISA or have been fully accrued in all material respects on the Purchaser Company Financials.
(ve) No Purchaser Company Benefit Plan is, and neither the Purchaser or any Subsidiary or any of their respective ERISA Affiliates sponsors, maintains, contributes to, is required to contribute to, or otherwise has or could reasonably be expected to have any current or contingent Liability under or with respect to, (i) a “defined benefit plan” (as defined in Section 414(j) of the Code), (ii) a “multiemployer plan” (as defined in Section 3(37) of ERISA) or (iii) a “multiple employer plan” (as described in Section 413(c) of the Code) or is (iv) otherwise subject to Title IV of ERISA or Section 412 of the Code. To No Target Company nor any ERISA Affiliate has incurred any Liability or to the Purchaser’s KnowledgeKnowledge of the Sellers, otherwise could have any Liability, contingent or otherwise, under Title IV of ERISA and to the Knowledge of the Sellers, no Purchaser Benefit Plan will become a multiple employer plan with respect condition presently exists that is expected to any Purchaser Entity immediately after the Closing Datecause such Liability to be incurred. Neither the Purchaser nor any Subsidiary No Target Company currently maintains or has ever maintained, or is required currently or has ever been required to contribute to or otherwise participate in, a multiple employer welfare arrangement or voluntary employees’ beneficiary association as defined in Section 501(c)(9) of the Code. For purposes of this Agreement, “ERISA Affiliate” means, .
(f) There is no arrangement under any Company Benefit Plan with respect to any employee that would result in the payment of any amount that by operation of Sections 280(G) or 162(m) of the Code would not be deductible by the Target Companies and no arrangement exists pursuant to which a Target Company will be required to “gross up” or otherwise compensate any Person because of the imposition of any excise tax on a payment to such Person.
(g) With respect to each Company Benefit Plan which is a “welfare plan” (as described in Section 3(1) of ERISA): (i) no such plan provides medical or death benefits with respect to current or former employees of a Target Company beyond their termination of employment (other than coverage mandated by Law, which is paid solely by such employees); and (ii) there are no reserves, assets, surplus or prepaid premiums under any such Company Benefit Plan. Each Target Company has complied with the provisions of Section 601 et seq. of ERISA and Section 4980B of the Code.
(h) The consummation of the transactions contemplated by this Agreement and the Ancillary Documents will not: (i) entitle any individual to severance pay, unemployment compensation or other benefits or compensation; (ii) accelerate the time of payment or vesting, or increase the amount of any compensation due, or in respect of, any Person individual; or entity (whether iii) result in or not incorporated) satisfy a condition to the payment of compensation that is would, in combination with any other payment, result in an “excess parachute payment” within the meaning of Section 280G of the Code. No Target Company has incurred any Liability for any Tax imposed under common control Chapter 43 of the Code or treated as one employer civil liability under Section 4001(b)(1) of ERISA or Section 414(b), (c), (m502(i) or (ol) of ERISA.
(i) Except to the extent required by Section 4980B of the Code or similar state Law, no Target Company provides health or welfare benefits to any former or retired employee or is obligated to provide such benefits to any active employee following such employee’s retirement or other termination of employment or service.
(j) Based on the language of each Company Benefit Plan, all Company Benefit Plans can be terminated at any time as of or after the Closing Date without resulting in any Liability to the Surviving Subsidiary or Pubco or their respective Affiliates for any additional contributions, penalties, premiums, fees, fines, excise taxes or any other charges or liabilities.
(k) Each Company Benefit Plan that is subject to Section 409A of the Code (each, a “Section 409A Plan”) is indicated as such in Schedule 5.19(k). No options to purchase Company Interests or any other equity-based awards have been issued or granted by a Target Company that are, or are subject to, a Section 409A Plan. Each Section 409A Plan has been administered in material compliance, and is in documentary material compliance, with the applicable provisions of Section 409A of the Code, the regulations thereunder and other official guidance issued thereunder. No Target Company has any obligation to any employee or other service provider with respect to any Section 409A Plan that may be subject to any Tax under Section 409A of the Code. No payment to be made under any Section 409A Plan is, or to the Knowledge of the Sellers will be, subject to the penalties of Section 409A(a)(1) of the Code. There is no Contract or Company Benefit Plan to which any Target Company is a party or by which it is bound to compensate any employee, consultant or director for any Taxes or interest imposed pursuant to Section 409A of the Code.
Appears in 1 contract
Sources: Business Combination Agreement (Relativity Acquisition Corp)
Benefit Plans. (ia) Set forth on Schedule 3.19(a) in Section 4.19 of the Company Disclosure Schedules is a true and complete list of each material Benefit Plan of the Purchaser and its Subsidiaries a Target Company or Medical Corporation (each, a “Purchaser Company Benefit Plan”). With respect to each Purchaser Company Benefit Plan, there are no funded benefit obligations for which contributions have not been materially made or properly accrued and there are no material unfunded benefit obligations that have not been accounted for by reserves, or otherwise properly footnoted in accordance with GAAP on the Purchaser Company Financials. Except as set forth on Schedule 3.19(a), neither the Purchaser nor any Subsidiary No Target Company or Medical Corporation is or has in the past been a member of a “controlled group” for purposes of Section 414(b), (c), (m) or (o) of the Code other than with the Purchaser or another SubsidiaryCode, nor does the Purchaser any Target Company or any Subsidiary Medical Corporation have any Liability with respect to any collectively-bargained for plans, whether or not subject to the provisions of ERISA.
(iib) Each Purchaser Company Benefit Plan in all material respects is and has been operated at all times in compliance with all applicable Laws in all material respects, including ERISA and the Code. Each Purchaser Company Benefit Plan which is intended to be “qualified” within the meaning of Section 401(a) of the Code (i) has been determined by the IRS to be so qualified (or is based on a prototype plan which has received a favorable opinion letter) during the period from its adoption to the date of this Agreement Date and (ii) is funded through a its related trust has been determined to be exempt from taxation under Section 501(a) of the CodeCode or the Target Companies or Medical Corporation have requested an initial favorable IRS determination of qualification and/or exemption within the period permitted by applicable Law. To the Knowledge of the PurchaserCompany’s Knowledge, no fact exists which could adversely affect the qualified status of such Purchaser Company Benefit Plans or the exempt status of such trusts.
(iiic) With respect to each Purchaser Company Benefit PlanPlan which covers any current or former officer, director, consultant or employee (or beneficiary thereof) of a Target Company or Medical Corporation, the Company has provided to Purchaser has made available to the Seller accurate and complete copies, if applicable, of: (i) all Purchaser Company Benefit Plan documents and agreements and related trust agreements or annuity Contracts (including any amendments, modifications or supplements thereto); (ii) all summary plan descriptions and summary of material modifications thereto; (iii) the three (3) most recent Forms 5500, if applicable, and annual report, including all schedules thereto; (iv) the most recent annual and periodic accounting of plan assets; (v) the three (3) most recent nondiscrimination testing reports; (vi) the most recent determination letter received from the IRS, if any; (vii) the most recent actuarial valuation; and (viii) all material written communications between the Purchaser or any Subsidiary or any Purchaser Benefit Plan and with any Governmental Authority and relating to a Purchaser Benefit Plan within six the last three (63) years preceding the date of this Agreementyears.
(ivd) With respect to each Purchaser Company Benefit Plan: (i) such Purchaser Company Benefit Plan has been administered and enforced in all material respects in accordance with its terms, the Code and ERISA; (ii) neither the Purchaser nor any Subsidiary nor any employee, officer or director thereof that is a no breach of fiduciary (under ERISA) with respect to such Purchaser Benefit Plan duty has breached any of its fiduciary responsibilities, obligations or duties imposed on it by ERISAoccurred; (iii) no Action is pending pending, or to the Company’s Knowledge, threatened in writing (other than routine claims for benefits arising in the ordinary course of administration); (iv) nothing has occurred with respect to any Purchaser Benefit Plan that has subjected the Purchaser or any Subsidiary to any material penalty under no prohibited transaction, as defined in Section 502 406 of ERISA or Section 4975 of the Code, has occurred, excluding transactions effected pursuant to a statutory or administration exemption; and (v) all contributions and premiums due through the Closing Date have been made in all material respects as required under ERISA or have been fully accrued in all material respects on the Purchaser Company Financials.
(ve) No Purchaser Company Benefit Plan is, and neither the Purchaser or any Subsidiary or any of their respective ERISA Affiliates sponsors, maintains, contributes to, is required to contribute to, or otherwise has or could reasonably be expected to have any current or contingent Liability under or with respect to, a “defined benefit plan” (as defined in Section 414(j) of the Code), a “multiemployer plan” (as defined in Section 3(37) of ERISA) or a “multiple employer plan” (as described in Section 413(c) of the Code) or is otherwise subject to Title IV of ERISA or Section 412 of the Code, and no Target Company or Medical Corporation has incurred any Liability or otherwise could have any Liability, contingent or otherwise, under Title IV of ERISA and no condition presently exists that is expected to cause such Liability to be incurred. To the Purchaser’s Knowledge, no Purchaser No Company Benefit Plan will become a multiple employer plan with respect to any Purchaser Entity Target Company or Medical Corporation immediately after the Closing Date. Neither the Purchaser nor any Subsidiary No Target Company or Medical Corporation currently maintains or has ever maintained, or is required currently or has ever been required to contribute to or otherwise participate in, a multiple employer welfare arrangement or voluntary employees’ beneficiary association as defined in Section 501(c)(9) of the Code.
(f) No arrangement exists pursuant to which a Target Company or Medical Corporation will be required to “gross up” or otherwise compensate any person because of the imposition of any excise tax on a payment to such person.
(g) With respect to each Company Benefit Plan which is a “welfare plan” (as described in Section 3(1) of ERISA): (i) no such plan provides medical or death benefits with respect to current or former employees of a Target Company or Medical Corporation beyond their termination of employment (other than coverage mandated by Law, which is paid solely by such employees); and (ii) there are no reserves, assets, surplus or prepaid premiums under any such plan. For The Target Company and Medical Corporations have complied in all material respects with the provisions of Section 601 et seq. of ERISA and Section 4980B of the Code.
(h) Each Company Benefit Plan satisfies the requirements of the Patient Protection and Affordable Care Act of 2010 (the “PPACA”), such that there is no reasonable expectation that any Tax or penalty could be imposed pursuant to the PPACA that relates to such group health plan. To the Knowledge of the Company, no condition exists that could cause any Target Company or Medical Corporation to have any Liability for any assessable payment under Section 4980H of the Code. To the Knowledge of the Company, no event has occurred, or condition exists, that could subject any Target Company or Medical Corporation to any Liability on account of a violation of the health care requirements of Part 6 or 7 of Title I of ERISA or Section 4980B or 4980D of the Code. Each Target Company and Medical Corporation has maintained records that are sufficient to satisfy the reporting requirements under Sections 6055 and 6056 of the Code, to the extent required, for all periods of time up to and through the Closing Date. No Target Company or Medical Corporation has modified the employment or service terms of any employee or service provider for the purpose of excluding such employee or service provider from full-time status for purposes of PPACA.
(i) Except as set forth in Section 4.19(i) of the Company Disclosure Schedules, the consummation of the transactions contemplated by this AgreementAgreement and the Ancillary Documents will not: (i) entitle any individual to severance pay, unemployment compensation or other benefits or compensation (except as set forth in Section 4.19 of the Company Disclosure Schedules); (ii) accelerate the time of payment or vesting, or increase the amount of any compensation due, or in respect of, any individual; or (iii) result in or satisfy a condition to the payment of compensation that would, in combination with any other payment, result in an “ERISA Affiliateexcess parachute payment” meanswithin the meaning of Section 280G of the Code. No Target Company or Medical Corporation has incurred any Liability for any Tax imposed under Chapter 43 of the Code or civil liability under Section 502(i) or (l) of ERISA.
(j) All Company Benefit Plans can be terminated at any time prior to the Closing Date without resulting in any Liability to the Surviving Corporation or Purchaser or their respective Affiliates for any additional contributions, penalties, premiums, fees, fines, excise taxes or any other charges or liabilities.
(k) Each Company Benefit Plan that is subject to Section 409A of the Code (each, a “Section 409A Plan”) as of the Closing Date is indicated as such in Section 4.19(k) of the Company Disclosure Schedules. No options or other equity-based awards have been issued or granted by the Company that are, or are subject to, a Section 409A Plan. Each Section 409A Plan has been administered in compliance, and is in documentary compliance, in all material respects, with the applicable provisions of Section 409A of the Code, the regulations thereunder and other official guidance issued thereunder. No Target Company or Medical Corporation has any obligation to any employee or other service provider with respect to any Person, Section 409A Plan that may be subject to any Person or entity (whether or not incorporated) that is under common control or treated as one employer Tax under Section 4001(b)(1) 409A of ERISA the Code. No payment to be made under any Section 409A Plan is, or to the Knowledge of the Company will be, subject to the penalties of Section 414(b), (c), (m) or (o409A(a)(1) of the Code. There is no Contract or plan to which any Target Company or Medical Corporation is a party or by which it is bound to compensate any employee, consultant or director for penalty taxes paid pursuant to Section 409A of the Code.
Appears in 1 contract
Benefit Plans. (ia) Set forth on Schedule 3.19(a) is a true and complete list All “employee benefit plans” (within the meaning of each material Benefit Plan of the Purchaser and its Subsidiaries (each, a “Purchaser Benefit Plan”). With respect to each Purchaser Benefit Plan, there are no funded benefit obligations for which contributions have not been materially made or properly accrued and there are no material unfunded benefit obligations that have not been accounted for by reserves, or otherwise properly footnoted in accordance with GAAP on the Purchaser Financials. Except as set forth on Schedule 3.19(a), neither the Purchaser nor any Subsidiary or has in the past been a member of a “controlled group” for purposes of Section 414(b), (c), (m) or (osection 3(3) of the Code ERISA) and all stock purchase, stock option, severance, employment, change-in-control, fringe benefit, bonus, incentive, deferred compensation, employee loan, and all other than with the Purchaser or another Subsidiary, nor does the Purchaser or any Subsidiary have any Liability with respect to any collectively-bargained for employee benefit plans, agreements, programs, policies or other arrangements, and whether or not subject to ERISA, under which any employee, former employee, director, officer, independent contractor or consultant of PSB or its Subsidiaries has any present or future right to benefits or under which PSB or its Subsidiaries has any present or future liability are referred to herein as the “PSB Plans.” Each material PSB Plan is identified in the PSB Disclosure Letter.
(b) With respect to each material PSB Plan, PSB has furnished or made available to River Financial a 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 IRS, if applicable, (iii) the most recent summary plan description, (iv) any other written communication (or a description of any oral communication) by PSB or its Subsidiaries to employees of PSB or its Subsidiaries, including concerning the extent of any post-retirement medical or life insurance benefits provided under a PSB Plan, and (v) for the most recent year (A) the Form 5500 and attached schedules, (B) audited financial statements and (C) actuarial valuation reports.
(c) With respect to each PSB Plan, except to the extent that the inaccuracy of any of the representations set forth in this Section, individually or in the aggregate, have not had a Material Adverse Effect:
(i) each PSB Plan has been established and administered in accordance with its terms and in compliance with the applicable provisions of ERISA.ERISA and the Code and other applicable Law, and all contributions required to be made under the terms of any PSB Plan have been timely made;
(ii) Each Purchaser Benefit each PSB Plan in all material respects is and has been operated in compliance with all applicable Laws in all material respects, including ERISA and the Code. Each Purchaser Benefit Plan which is intended to be “qualified” within the meaning of qualified under Section 401(a) of the Code (i) has been determined by the IRS to be so qualified (or is based on a prototype plan which has received a favorable determination, advisory and/or opinion letter) during , as applicable, from the period from its adoption IRS that it is so qualified and, to the knowledge of PSB, nothing has occurred, whether by action or failure to act, since the date of this Agreement and (ii) is funded through a trust exempt from taxation under Section 501(a) such letter that would reasonably be expected to cause the loss of the Code. To the Knowledge of the Purchaser, no fact exists which could adversely affect the such qualified status of such Purchaser Benefit Plans or the exempt status of such trusts.PSB Plan;
(iii) With respect to each Purchaser Benefit Plan, the Purchaser has made available to the Seller accurate and complete copies, if applicable, of: (i) all Purchaser Benefit Plan documents and agreements and related trust agreements or annuity Contracts there is no Litigation (including any amendmentsinvestigation, modifications audit or supplements thereto); (iiother administrative proceeding) all summary plan descriptions and material modifications thereto; (iii) by the three (3) most recent Forms 5500Department of Labor, if applicablethe PBGC, and annual report, including all schedules thereto; (iv) the most recent annual and periodic accounting of plan assets; (v) the three (3) most recent nondiscrimination testing reports; (vi) the most recent determination letter received from the IRS, if any; (vii) the most recent actuarial valuation; and (viii) all material written communications between the Purchaser IRS or any Subsidiary other Agency or by any Purchaser Benefit Plan and any Governmental Authority and plan participant or beneficiary pending or threatened relating to a Purchaser Benefit Plan within six (6) years preceding the date of this Agreement.
(iv) With respect to each Purchaser Benefit Plan: (i) such Purchaser Benefit Plan has been administered and enforced in all material respects in accordance with its termsPSB Plans, the Code and ERISA; (ii) neither the Purchaser nor any Subsidiary nor any employee, officer or director fiduciaries thereof that is a fiduciary (under ERISA) with respect to such Purchaser Benefit Plan has breached their duties to PSB Plans or the assets of any of its fiduciary responsibilities, obligations or duties imposed on it by ERISA; (iii) no Action is pending or threatened in writing the trusts under any PSB Plans (other than routine claims for benefits arising benefits) nor are there facts or circumstances that exist that could reasonably give rise to any such Litigation. No written or oral communication has been received from the PBGC in respect of any PSB Plan subject to Title IV of ERISA concerning the ordinary course funded status of administration)any such plan or any transfer of assets and liabilities from any such plan in connection with the transactions contemplated herein; and
(iv) nothing no “reportable event” (as such term is defined in Section 4043 of ERISA) that could reasonably be expected to result in liability; no nonexempt “prohibited transaction” (as such term is defined in Section 406 of ERISA and Section 4975 of the Code); and no “accumulated funding deficiency” (as defined in Section 302 of ERISA and Section 412 of the Code) or failure to timely satisfy any “minimum funding standard” (within the meaning of Section 302 of ERISA or Sections 412 or 430 of the Code), in each case whether or not waived, has occurred with respect to any Purchaser Benefit Plan that has subjected the Purchaser or any Subsidiary to any material penalty under Section 502 of ERISA or Section 4975 of the Code; and (v) all contributions and premiums due through the Closing Date have been made in all material respects as required under ERISA or have been fully accrued in all material respects on the Purchaser FinancialsPSB Plan.
(vi) No Purchaser Benefit Each PSB Plan ispursuant to which PSB 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 PSB 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 by applicable Law) (“retiree medical benefits”), and (ii) the provisions of each PSB Plan which provide retiree medical benefits may be terminated at any time by PSB or its Subsidiaries without liability to PSB or its Subsidiaries.
(e) Neither PSB nor any of its Subsidiaries is a party to any Contract that will, directly or in combination with other events, result, separately or in the aggregate, in the payment, acceleration or enhancement of any benefit as a result of the transactions contemplated by this Agreement, and neither the Purchaser execution of this Agreement, PSB shareholder approval of this Agreement nor the consummation of the transactions contemplated hereby will (A) result in severance pay or any Subsidiary increase in 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 material obligation to, any of their respective ERISA Affiliates sponsorsthe PSB Plans, maintains(C) limit or restrict the right of PSB to merge, contributes to, is required to contribute toamend, or otherwise has or could reasonably be expected to have terminate any current or contingent Liability under or with respect to, a “defined benefit plan” (as defined in Section 414(j) of the Code)PSB Plans, a “multiemployer plan” (as defined in Section 3(37D) of ERISA) or a “multiple employer plan” (as described in Section 413(c) of the Code) or is otherwise subject cause PSB to Title IV of ERISA or Section 412 of the Code. To the Purchaser’s Knowledge, no Purchaser Benefit Plan will become a multiple employer plan record additional compensation expense on its income statement with respect to any Purchaser Entity immediately after the Closing Date. Neither the Purchaser nor any Subsidiary currently maintains outstanding stock option or has ever maintainedother equity-based award, or is required currently or has ever been required to contribute to or otherwise participate in, a multiple employer welfare arrangement or voluntary employees’ beneficiary association as defined (E) result in Section 501(c)(9) the payment of the Code. For purposes of this Agreement, “ERISA Affiliate” means, with respect to any Person, any Person or entity (whether or payments which would not incorporated) that is under common control or treated as one employer be deductible under Section 4001(b)(1) of ERISA or Section 414(b), (c), (m) or (o) 280G of the Code.
Appears in 1 contract
Benefit Plans. (i) Set Schedule 3.02(p) sets forth on Schedule 3.19(a) is a true true, complete and complete correct list of each material Benefit Plan of the Purchaser and its Subsidiaries (each, a “Purchaser Benefit Plan”). With respect to each Purchaser Benefit Plan, there are no funded benefit obligations for which contributions Sellers have not been materially made or properly accrued and there are no material unfunded benefit obligations that have not been accounted for by reservesprovided, or otherwise properly footnoted in accordance with GAAP on made available, to the Purchaser Financials. Except REIT, as set forth on Schedule 3.19(aapplicable: (A) all documents embodying or governing such Plan (or a complete and accurate summary of any Plan that is not evidenced by a written plan document), neither and any funding medium for the Purchaser nor any Subsidiary or has in the past been a member of a “controlled group” for purposes of Section 414(bPlan (including, without limitation, trust agreements), (c), (mB) the most recent IRS determination or (o) of the Code other than with the Purchaser or another Subsidiary, nor does the Purchaser or any Subsidiary have any Liability opinion letter with respect to any collectively-bargained for plans, whether or not subject to the provisions of ERISA.
(ii) Each Purchaser Benefit such Plan in all material respects is and has been operated in compliance with all applicable Laws in all material respects, including ERISA and the Code. Each Purchaser Benefit Plan which is intended to be “qualified” within the meaning of under Section 401(a) of the Code Code, (i) has been determined by the IRS to be so qualified (or is based on a prototype plan which has received a favorable opinion letter) during the period from its adoption to the date of this Agreement and (ii) is funded through a trust exempt from taxation under Section 501(a) of the Code. To the Knowledge of the Purchaser, no fact exists which could adversely affect the qualified status of such Purchaser Benefit Plans or the exempt status of such trusts.
(iii) With respect to each Purchaser Benefit Plan, the Purchaser has made available to the Seller accurate and complete copies, if applicable, of: (i) all Purchaser Benefit Plan documents and agreements and related trust agreements or annuity Contracts (including any amendments, modifications or supplements thereto); (ii) all summary plan descriptions and material modifications thereto; (iiiC) the three (3) most recent Forms 5500recently filed IRS Form 5500 Annual Reports and accompanying schedules and audited financial statements, if applicable, and annual report, including all schedules thereto; (ivD) the most recent annual actuarial report, (E) the current summary plan description for such Plan and periodic accounting all summaries of plan assetsmaterial modifications thereto, (F) any insurance policy related to such Plan, and (G) all material written correspondence received from the IRS, Pension Benefit Guaranty Corporation, the U.S. Department of Labor or any other Governmental Authority relating thereto.
(ii) With respect to each Plan, (A) no claims (other than routine claims for benefits in the ordinary course of business) are pending or threatened in writing or, to any Seller’s Knowledge, threatened orally against any Seller, Manager Sub, any Plan or a fiduciary of any Plan; (vB) no facts or circumstances exist that would give rise to any such claims; (C) there is no administrative investigation, audit or other administrative proceeding by the Department of Labor, the Pension Benefit Guaranty Corporation, the IRS or other Governmental Authority pending or threatened in writing or, to any Seller’s Knowledge, threatened orally against any Seller, Manager Sub, any Plan or a fiduciary of any Plan, and within the three (3) most recent nondiscrimination testing reports; (vi) years prior to the most recent determination letter received from date hereof, none of the IRSSellers nor Manger Sub have been the subject of an examination or audit by a Governmental Authority or the subject of an application or filing under, if any; (vii) the most recent actuarial valuationor is a participant in, an amnesty, voluntary compliance, self-correction or similar program sponsored by any Governmental Authority with respect to any Plan; and (viiiD) all material written communications between each Plan which is intended to be qualified within the Purchaser meaning of Code Section 401(a) is, and has been since its adoption, so qualified and has received, or is entitled to rely upon, a favorable determination or opinion letter as to its qualification, and nothing has occurred, whether by action or failure to act, that would reasonably be expected to cause the loss of such qualification and neither the Sellers nor any Subsidiary Affiliate thereof has received any correspondence or any Purchaser Benefit Plan and any notice from a Governmental Authority and relating to a Purchaser Benefit Plan within six (6) years preceding that calls into question the date qualification of this Agreement.
(iv) With respect to each Purchaser Benefit any such Plan: (i) such Purchaser Benefit . Each Plan has been administered and enforced operated in all material respects in accordance with its terms, terms and with the Code and ERISA; (ii) neither requirements of all applicable Laws. There have been no non-exempt “prohibited transactions” within the Purchaser nor any Subsidiary nor any employee, officer or director thereof that is a fiduciary (under ERISA) with respect to such Purchaser Benefit Plan has breached any meaning of its fiduciary responsibilities, obligations or duties imposed on it by ERISA; (iii) no Action is pending or threatened in writing (other than routine claims for benefits arising in the ordinary course of administration); (iv) nothing has occurred with respect to any Purchaser Benefit Plan that has subjected the Purchaser or any Subsidiary to any material penalty under Section 502 of ERISA or Section 4975 of the Code; Code or Section 406 of ERISA and (v) no breach of fiduciary duty has occurred. With respect to each Plan, as applicable, all contributions reports and premiums due through disclosures required to be filed or delivered under ERISA and the Closing Date Code have been made accurate in all material respects as required under ERISA or of the date filed, have been filed or distributed in a timely manner, and any Taxes due in connection with such filings have been paid. All contributions, transfers and payments in respect of any Plan made within the past three years have been or are fully deductible under the Code. All contributions (including all employer contributions and employee salary reduction contributions), premiums and expenses to or in respect of each Plan have been timely paid in full or, to the extent not yet due, have been adequately accrued in all material respects on financial statements that have been provided to the Purchaser FinancialsREIT and the OP. Each Plan that is an “employee welfare benefit plan” (within the meaning of Section 3(1) of ERISA), with the exception of any flexible spending arrangements subject to Sections 125 and 105 of the Code and health savings accounts, are provided exclusively through insurance Contracts or policies issued by an insurance company, health maintenance organization, or similar organization unrelated to the Sellers.
(viii) No Purchaser Benefit Plan isis subject to Title IV of ERISA, and neither a multiemployer plan (within the Purchaser or any Subsidiary or any meaning of their respective ERISA Affiliates sponsors, maintains, contributes to, is required to contribute to, or otherwise has or could reasonably be expected to have any current or contingent Liability under or with respect toSection 3(37)), a “defined benefit planmultiple employer welfare arrangement” (as defined in Section 414(j) of the Code), a “multiemployer plan” (as defined in Section 3(373(40) of ERISA) ), or a “multiple employer plan” (as described defined in Section 413(c) 413 of the Code) and no Seller has ever contributed to or is otherwise maintained any such plan. Neither Sellers nor Manager Sub has any liability under Title IV of ERISA, the Code or other applicable Law with respect to any “employee benefit plan” (as defined in Section 3(3) of ERISA) subject to Title IV of ERISA that is maintained by an ERISA Affiliate or to which an ERISA Affiliate contributes or previously contributed.
(iv) Except as set forth on Schedule 3.02(p), no Plan provides for any post-termination or retiree welfare benefits to any individual for any reason, other than as required under Section 412 4980B or the Code, Part 6 of Title I of ERISA or other similar applicable Law. With respect to each Plan that is an employee welfare benefit plan (within the meaning of Section 3(1) of ERISA), all claims incurred by Sellers or Manager Sub are (i) fully insured, or (ii) covered under a contract with a health maintenance organization.
(v) Except as set forth on Schedule 3.02(p), neither the execution of this Agreement nor the consummation of the transactions contemplated hereby will (individually or together with the occurrence of any other event): (i) entitle any current or former Business Employee to any payment or benefit, (ii) accelerate the time of payment, vesting or funding, or increase the amount or value of any compensation due to such person, (iii) result in “excess parachute payments” within the meaning of Section 280G(b) of the Code or result in the payment of any excess parachute payments (within the meaning Section 280G of the Code. To ) or (iv) require a “gross-up” or other payment to any “disqualified individual” (within the Purchaser’s Knowledge, no Purchaser Benefit Plan will become a multiple employer plan meaning Section 280G of the Code) or with respect to any Purchaser Entity immediately deferred compensation plan within the meaning of Section 409A of the Code.
(vi) Each Plan that is a “nonqualified deferred compensation plan” (within the meaning of Section 409A(d)(1) of the Code) has (i) been maintained in good faith compliance with Section 409A of the Code and all applicable Treasury Regulations promulgated thereunder so as to avoid any Tax, penalty or interest under Section 409A of the Code 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 the Closing Date. Neither the Purchaser nor any Subsidiary currently maintains October 3, 2004, or has ever maintainedbeen amended in a manner that conforms with the requirements of Section 409A of the Code, or and (ii) been in documentary and operational compliance with Section 409A of the Code and all applicable IRS guidance promulgated thereunder in all material respects.
(vii) Each Seller and each Plan that is required currently or has ever been required to contribute to or otherwise participate in, a multiple employer welfare arrangement or voluntary employees’ beneficiary association “group health plan” as defined in Section 501(c)(9) of the Code. For purposes of this Agreement, “ERISA Affiliate” means, with respect to any Person, any Person or entity (whether or not incorporated) that is under common control or treated as one employer under Section 4001(b)(1733(a)(1) of ERISA or Section 414(b(a “Company Health Plan”) (i) is currently in compliance with the Patient Protection and Affordable Care Act, Pub. L. No. 111-148 (“PPACA”), (c)the Health Care and Education Reconciliation Act of 2010, (m) or (o) of the CodePub.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Carter Validus Mission Critical REIT II, Inc.)
Benefit Plans. (ia) Set forth on Schedule 3.19(a) is a true and complete list of each material Benefit Plan that is maintained, contributed to, required to be contributed to, or sponsored by Buyer or any Buyer Company for the benefit of the Purchaser and its Subsidiaries any current or former employee, officer, director or consultant, or under which Buyer or any Buyer Company has any material liability (each, a “Purchaser Buyer Benefit Plan”). With respect to each Purchaser Benefit Plan, there are no funded benefit obligations for which contributions have not been materially made or properly accrued and there are no material unfunded benefit obligations that have not been accounted for by reserves, or otherwise properly footnoted in accordance with GAAP on the Purchaser Financials. Except as set forth on Schedule 3.19(a), neither the Purchaser nor any Subsidiary or has in the past been a member of a “controlled group” for purposes of Section 414(b), (c), (m) or (o) of the Code other than with the Purchaser or another Subsidiary, nor does the Purchaser or any Subsidiary have any Liability with respect to any collectively-bargained for plans, whether or not subject to the provisions of ERISA.
(ii) Each Purchaser Benefit Plan in all material respects is and has been operated in compliance with all applicable Laws in all material respects, including ERISA and the Code. Each Purchaser Benefit Plan which is intended to be “qualified” within the meaning of Section 401(a) of the Code (i) has been determined by the IRS to be so qualified (or is based on a prototype plan which has received a favorable opinion letter) during the period from its adoption to the date of this Agreement and (ii) is funded through a trust exempt from taxation under Section 501(a) of the Code. To the Knowledge of the Purchaser, no fact exists which could adversely affect the qualified status of such Purchaser Benefit Plans or the exempt status of such trusts.
(iiib) With respect to each Purchaser Buyer Benefit Plan, the Purchaser Buyer has made available to the Seller Company accurate and complete copies, if applicable, of: (i) all Purchaser Benefit Plan the current plan documents and agreements and currently effective related trust agreements or annuity Contracts (including any amendments, modifications or supplements thereto), and written descriptions of the material terms of any Buyer Benefit Plans which are not in writing; (ii) all summary plan descriptions and material modifications theretothe most recent actuarial valuation; (iii) the three (3) most recent Forms 5500, if applicable, and annual report, including all schedules theretosummary plan description; (iv) a copy of the most recent recently filed Form 5500 annual report and periodic accounting accompanying schedules, (v) copy of plan assetsthe most recently received IRS determination, opinion or advisory letter; (vvi) the three (3) most recent nondiscrimination testing reports; (vi) the most recent determination letter received from the IRS, if any; safe harbor notices and automatic enrollment notices, as applicable and (vii) the most recent actuarial valuation; and (viii) all material written non-routine communications between the Purchaser or any Subsidiary or any Purchaser Benefit Plan and with any Governmental Authority and relating to a Purchaser Benefit Plan within six the past three (63) years preceding the date of this Agreementconcerning any matter that is still pending or for which a Buyer Company has any outstanding Liability or obligation.
(ivc) With respect to each Purchaser Buyer Benefit Plan: (i) such Purchaser Buyer Benefit Plan has been administered and enforced in all material respects in accordance with its termsterms and the requirements of all applicable Laws, the Code and ERISAhas been maintained, where required, in good standing with applicable regulatory authorities and Governmental Authorities; (ii) neither to the Purchaser nor any Subsidiary nor any employee, officer or director thereof that is a Knowledge of Buyer no breach of fiduciary (under ERISA) with respect to such Purchaser Benefit Plan duty has breached any of its fiduciary responsibilities, obligations or duties imposed on it by ERISAoccurred; (iii) no Action is pending pending, or to Buyer’s Knowledge, threatened in writing (other than routine claims for benefits arising in the ordinary course of administration); and (iv) nothing has occurred all contributions, premiums and other payments (including any special contribution, interest or penalty) required to be made with respect to any Purchaser a Buyer Benefit Plan that has subjected the Purchaser or any Subsidiary to any material penalty under Section 502 of ERISA or Section 4975 of the Code; and (v) all contributions and premiums due through the Closing Date have been made in all material respects as required under ERISA or have been fully accrued in all material respects on the Purchaser Financialstimely made.
(vd) No Purchaser Buyer Company has any commitment to modify, change or terminate any Buyer Benefit Plan isPlan, and neither other than with respect to a modification, change or termination required by ERISA or the Purchaser Code, or other applicable Law.
(e) None of the Buyer Benefit Plans is or has at any time during the past six (6) years been, nor does any Buyer Company or any Subsidiary ERISA Affiliate (as defined below) have or any of their respective ERISA Affiliates sponsors, maintains, contributes to, is required to contribute to, or otherwise has or could reasonably be expected expect to have any current liability or contingent Liability obligation under (i) a multiemployer plan (within the meaning of Section 3(37) or with respect to, a “defined benefit plan” (as defined in Section 414(j4001(a)(3) of the CodeERISA), (ii) a “multiemployer plan” single employer pension plan (as defined in within the meaning of Section 3(374001(a)(15) of ERISA) subject to Section 412 of the Code or Title IV of ERISA, (iii) a “multiple employer plan” (as described in plan subject to Section 413(c) of the Code, (iv) or is otherwise subject to Title IV of ERISA or Section 412 of the Code. To the Purchaser’s Knowledge, no Purchaser Benefit Plan will become a multiple employer plan with respect to any Purchaser Entity immediately after the Closing Date. Neither the Purchaser nor any Subsidiary currently maintains or has ever maintained, or is required currently or has ever been required to contribute to or otherwise participate in, a multiple employer welfare arrangement under ▇▇▇▇▇, or (v) a voluntary employees’ beneficiary association as defined in Section 501(c)(9) of the Code. For purposes of this Agreement, “ERISA Affiliate” means, means any entity that together with respect to any Person, any Person or entity (whether or not incorporated) that Buyer Company is under common control or treated as one employer under a “single employer” for purposes of Section 4001(b)(1) of ERISA or Section Sections 414(b), (c), (m) or (o) of the Code.
Appears in 1 contract
Benefit Plans. (ia) Set forth on Schedule 3.19(a4.19(a) is a true and complete list of each material Benefit Plan of the Purchaser and its Subsidiaries Company (each, a “Purchaser Company Benefit Plan”). With respect to each Purchaser Company Benefit Plan, there are no funded benefit obligations for which contributions have not been materially made or properly accrued and there are no material unfunded benefit obligations that have obligations. The Company is not been accounted for by reserves, or otherwise properly footnoted in accordance with GAAP on the Purchaser Financials. Except as set forth on Schedule 3.19(a), neither the Purchaser nor any Subsidiary or has in the past since its incorporation been a member of a “controlled group” for purposes of Section 414(b), (c), (m) or (o) of the Code other than with the Purchaser or another SubsidiaryCode, nor does the Purchaser or any Subsidiary Company have any Liability with respect to any collectively-bargained for plans, whether or not subject to the provisions of ERISA.
(iib) Each Purchaser Company Benefit Plan in all material respects is and has been operated operated, administered, and funded at all times in compliance with all applicable Laws in all material respects, including including, but not limited to, ERISA and the Code. Each Purchaser Company Benefit Plan which is intended to be “qualified” within the meaning of Section 401(a) of the Code (i) has been determined by the IRS to be so qualified (or is based on a prototype plan which has received a favorable opinion letter) during the period from its adoption to the date of this Agreement and (ii) is funded through a its related trust has been determined to be exempt from taxation under Section 501(a) of the CodeCode or the Company has requested an initial favorable IRS determination of qualification and/or exemption within the period permitted by applicable Law. To the Knowledge of the PurchaserCompany’s Knowledge, no fact exists which could adversely affect the qualified status of such Purchaser Company Benefit Plans or the exempt status of such trusts.
(iiic) With respect to each Purchaser Company Benefit PlanPlan which covers any current or former officer, director, consultant or employee (or beneficiary thereof) of the Company, the Company has provided to Purchaser has made available to the Seller accurate and complete copies, if applicable, of: (i) all Purchaser Company Benefit Plan documents and agreements and related trust agreements or annuity Contracts (including any amendments, modifications or supplements thereto); (ii) all summary plan descriptions and summary of material modifications thereto; (iii) the three (3) most recent Forms 5500, if applicable, and annual report, including all schedules thereto; (iv) the most recent annual and periodic accounting of plan assets; (v) the three (3) most recent nondiscrimination testing reports; (vi) the most recent determination letter received from the IRS, if any; (vii) the most recent actuarial valuation; and (viii) all material written communications between the Purchaser or any Subsidiary or any Purchaser Benefit Plan and with any Governmental Authority and relating to a Purchaser Benefit Plan within six the last three (63) years preceding the date of this Agreementyears.
(ivd) With respect to each Purchaser Company Benefit Plan: (i) such Purchaser Company Benefit Plan has been administered and enforced in all material respects in accordance with its terms, the Code and ERISA; (ii) neither the Purchaser nor any Subsidiary nor any employee, officer or director thereof that is a no material breach of fiduciary (under ERISA) with respect to such Purchaser Benefit Plan duty has breached any of its fiduciary responsibilities, obligations or duties imposed on it by ERISAoccurred; (iii) no material Action is pending pending, or to the Company’s Knowledge, threatened in writing (other than routine claims for benefits arising in the ordinary course of administration); (iv) nothing has occurred with respect to any Purchaser Benefit Plan that has subjected the Purchaser or any Subsidiary to any material penalty under no prohibited transaction, as defined in Section 502 406 of ERISA or Section 4975 of the Code, has occurred, excluding transactions effected pursuant to a statutory or administration exemption; and (v) all contributions and premiums due through the Closing Date have been made in all material respects as required under ERISA or have been fully accrued in all material respects on the Purchaser FinancialsERISA.
(ve) No Purchaser Company Benefit Plan is, and neither the Purchaser or any Subsidiary or any of their respective ERISA Affiliates sponsors, maintains, contributes to, is required to contribute tocurrently, or otherwise has or could is reasonably be expected to have any current or contingent Liability under or with respect tobecome, a “defined benefit plan” (as defined in Section 414(j) of the Code), a “multiemployer plan” (as defined in Section 3(37) of ERISA) or a “multiple employer plan” (as described in Section 413(c) of the Code) or is otherwise subject to Title IV of ERISA or Section 412 of the Code, and the Company has not incurred any material Liability or otherwise could have any material Liability, contingent or otherwise, under Title IV of ERISA and no condition presently exists that is expected to cause such material Liability to be incurred. To the Purchaser’s Knowledge, no Purchaser No Company Benefit Plan will become a multiple employer plan with respect to any Purchaser Entity the Company immediately after the Closing Date. Neither the Purchaser The Company currently does not maintain, nor any Subsidiary currently maintains or has ever maintained, or nor is required currently or has ever been required to contribute to or otherwise participate in, a multiple employer welfare arrangement or voluntary employees’ beneficiary association as defined in Section 501(c)(9) of the Code.
(f) No arrangement exists pursuant to which the Company will be required to “gross up” or otherwise compensate any person because of the imposition of any excise tax on a payment to such person.
(g) With respect to each Company Benefit Plan which is a “welfare plan” (as described in Section 3(1) of ERISA): (i) no such plan provides medical or death benefits with respect to current or former employees of the Company beyond their termination of employment (other than coverage mandated by Law, which is paid solely by such employees); and (ii) there are no reserves, assets, surplus or prepaid premiums under any such plan. For purposes The Company has complied in all material respects with the provisions of this AgreementSection 601, et seq. of ERISA and Section 4980B of the Code.
(h) Except as set forth on Schedule 4.19(h), the consummation of the Contemplated Transactions will not: (i) entitle any individual to material severance pay, unemployment compensation or other benefits or compensation (except as set forth on Schedule 4.19(h)); (ii) accelerate the time of payment or vesting, or increase the amount of any material compensation due, or in respect of, any individual; or (iii) result in or satisfy a condition to the payment of material compensation that would, in combination with any other payment, result in an “ERISA Affiliateexcess parachute payment” meanswithin the meaning of Section 280G of the Code. The Company has not incurred any material Liability for any Tax imposed under Chapter 43 of the Code or civil liability under Section 502(i) or (l) of ERISA.
(i) All Company Benefit Plans can be terminated at any time prior to the Closing Date without resulting in any material Liability to the Second Surviving Corporation or Purchaser or their respective Affiliates for any additional and material contributions, penalties, premiums, fees, fines, excise taxes or any other charges or liabilities.
(j) Each Company Benefit Plan that is subject to Section 409A of the Code (each, a “Section 409A Plan”) as of the Closing Date is indicated as such on Schedule 4.19(j). No options or other equity-based awards have been issued or granted by the Company that are, or are subject to, a Section 409A Plan. Each Section 409A Plan has been administered in compliance, and is in documentary compliance, in all material respects, with the applicable provisions of Section 409A of the Code, the regulations thereunder and other official guidance issued thereunder. The Company has no obligation to any employee or other service provider with respect to any Person, Section 409A Plan that may be subject to any Person or entity (whether or not incorporated) that is under common control or treated as one employer Tax under Section 4001(b)(1) 409A of ERISA the Code. No payment to be made under any Section 409A Plan is, or to the Knowledge of the Company will be, subject to the penalties of Section 414(b), (c), (m) or (o409A(a)(1) of the Code. There is no Contract or plan to which the Company is a party or by which it is bound to compensate any employee, consultant or director for penalty taxes paid pursuant to Section 409A of the Code.
Appears in 1 contract
Sources: Business Combination Agreement (Quantum FinTech Acquisition Corp)
Benefit Plans. (ia) Set forth on Schedule 3.19(a4.19(a) is a true and complete list of each material Benefit Plan of the Purchaser and its Subsidiaries a Target Company (each, a “Purchaser Company Benefit Plan”). With respect to each Purchaser Company Benefit Plan, there are no funded benefit obligations for which contributions have not been materially made or properly accrued and there are no material unfunded benefit obligations that have not been accounted for by reserves, or otherwise properly footnoted in accordance with GAAP on the Purchaser Company Financials. Except as set forth on Schedule 3.19(a), neither the Purchaser nor any Subsidiary No Target Company is or has in the past been a member of a “controlled group” for purposes of Section 414(b), (c), (m) or (o) of the Code other than with the Purchaser or another SubsidiaryCode, nor does the Purchaser or any Subsidiary Target Company have any Liability with respect to any collectively-bargained for plans, whether or not subject to the provisions of ERISA. No statement, either written or oral, has been made by any Target Company to any Person with regard to any Company Benefit Plan that was not in accordance with the Company Benefit Plan in any material respect.
(iib) Each Purchaser Company Benefit Plan in all material respects is and has been operated at all times in compliance with all applicable Laws in all material respects, including ERISA and the Code. Each Purchaser Company Benefit Plan which is intended to be “qualified” within the meaning of Section 401(a) of the Code (i) has been determined by the IRS to be so qualified (or is based on a prototype plan which has received a favorable opinion letter) during the period from its adoption to the date of this Agreement and (ii) is funded through a its related trust has been determined to be exempt from taxation under Section 501(a) of the CodeCode or the Target Companies have requested an initial favorable IRS determination of qualification and/or exemption within the period permitted by applicable Law. To the Knowledge of the Purchaser, no No fact exists which could adversely affect the qualified status of such Purchaser Company Benefit Plans or the exempt status of such trusts.
(iiic) With respect to each Purchaser Company Benefit PlanPlan which covers any current or former officer, director, consultant or employee (or beneficiary thereof) of a Target Company, the Company has provided to Purchaser has made available to the Seller accurate and complete copies, if applicable, of: (i) all Purchaser Company Benefit Plan documents texts and agreements and related trust agreements or annuity Contracts (including any amendments, modifications or supplements thereto); (ii) all summary plan descriptions and material modifications thereto; (iii) the three (3) most recent Forms 5500, if applicable, and annual report, including all schedules thereto; (iv) the most recent annual and periodic accounting of plan assets; (v) the three (3) most recent nondiscrimination testing reports; (vi) the most recent determination letter received from the IRS, if any; (vii) the most recent actuarial valuation; and (viii) all material written communications between the Purchaser or any Subsidiary or any Purchaser Benefit Plan and with any Governmental Authority and relating to a Purchaser Benefit Plan within six (6) years preceding the date of this AgreementAuthority.
(ivd) With respect to each Purchaser Company Benefit Plan: (i) such Purchaser Company Benefit Plan has been administered and enforced in all material respects in accordance with its terms, the Code and ERISA; (ii) neither the Purchaser nor any Subsidiary nor any employee, officer or director thereof that is a no breach of fiduciary (under ERISA) with respect to such Purchaser Benefit Plan duty has breached any of its fiduciary responsibilities, obligations or duties imposed on it by ERISAoccurred; (iii) no Action is pending pending, or to the Company’s Knowledge, threatened in writing (other than routine claims for benefits arising in the ordinary course of administration); (iv) nothing has occurred with respect to any Purchaser Benefit Plan that has subjected the Purchaser or any Subsidiary to any material penalty under no prohibited transaction, as defined in Section 502 406 of ERISA or Section 4975 of the Code, has occurred, excluding transactions effected pursuant to a statutory or administration exemption; and (v) all contributions and premiums due through the Closing Date have been made in all material respects as required under ERISA or have been fully accrued in all material respects on the Purchaser Company Financials.
(ve) No Purchaser Company Benefit Plan is, and neither the Purchaser or any Subsidiary or any of their respective ERISA Affiliates sponsors, maintains, contributes to, is required to contribute to, or otherwise has or could reasonably be expected to have any current or contingent Liability under or with respect to, a (i) “defined benefit plan” (as defined in Section 414(j) of the Code), (ii) a “multiemployer plan” (as defined in Section 3(37) of ERISA) or (iii) a “multiple employer plan” (as described in Section 413(c) of the Code) or is otherwise subject to Title IV of ERISA or Section 412 of the Code. To the Purchaser’s KnowledgeNo Target Company nor any ERISA Affiliate has incurred any Liability or otherwise could have any Liability, contingent or otherwise, under Title IV of ERISA and no Purchaser condition presently exists that is expected to cause such Liability to be incurred. No Company Benefit Plan will become a multiple employer plan with respect to any Purchaser Entity Target Company immediately after the Closing Date. Neither the Purchaser nor any Subsidiary No Target Company currently maintains or has ever maintained, or is required currently or has ever been required to contribute to or otherwise participate in, a multiple employer welfare arrangement or voluntary employees’ beneficiary association as defined in Section 501(c)(9) of the Code. For purposes of this Agreement, “ERISA Affiliate” means, .
(f) There is no arrangement under any Company Benefit Plan with respect to any Personemployee that would result in the payment of any amount that by operation of Sections 280G or 162(m) of the Code would not be deductible by the Target Companies and no arrangement exists pursuant to which a Target Company will be required to “gross up” or otherwise compensate any person because of the imposition of any excise tax on a payment to such person.
(g) With respect to each Company Benefit Plan which is a “welfare plan” (as described in Section 3(1) of ERISA): (i) no such plan provides medical or death benefits with respect to current or former employees of a Target Company beyond their termination of employment (other than coverage mandated by Law, which is paid solely by such employees); and (ii) there are no reserves, assets, surplus or prepaid premiums under any such plan. Each Target Company has complied with the provisions of Section 601 et seq. of ERISA and Section 4980B of the Code.
(h) The consummation of the transactions contemplated by this Agreement and the Ancillary Documents will not: (i) entitle any individual to severance pay, unemployment compensation or other benefits or compensation; (ii) accelerate the time of payment or vesting, or increase the amount of any compensation due, or in respect of, any Person individual; or entity (whether iii) result in or not incorporated) satisfy a condition to the payment of compensation that is would, in combination with any other payment, result in an “excess parachute payment” within the meaning of Section 280G of the Code. No Target Company has incurred any Liability for any Tax imposed under common control Chapter 43 of the Code or treated as one employer civil liability under Section 4001(b)(1) of ERISA or Section 414(b), (c), (m502(i) or (ol) of ERISA.
(i) Except to the extent required by Section 4980B of the Code or similar state Law, no Target Company provides health or welfare benefits to any former or retired employee or is obligated to provide such benefits to any active employee following such employee’s retirement or other termination of employment or service.
(j) All Company Benefit Plans can be terminated at any time as of or after the Closing Date without resulting in any Liability to the Purchaser or the Target Companies or their respective Affiliates for any additional contributions, penalties, premiums, fees, fines, excise taxes or any other charges or liabilities.
(k) Each Company Benefit Plan that is subject to Section 409A of the Code (each, a “Section 409A Plan”) as of the Closing Date is indicated as such on Schedule 4.19(k). No Company Options or other equity-based awards have been issued or granted by the Company that are, or are subject to, a Section 409A Plan. Each Section 409A Plan has been administered in compliance, and is in documentary compliance, with the applicable provisions of Section 409A of the Code, the regulations thereunder and other official guidance issued thereunder. No Target Company has any obligation to any employee or other service provider with respect to any Section 409A Plan that may be subject to any Tax under Section 409A of the Code. No payment to be made under any Section 409A Plan is, or to the Knowledge of the Company will be, subject to the penalties of Section 409A(a)(1) of the Code. There is no Contract or plan to which any Target Company is a party or by which it is bound to compensate any employee, consultant or director for any Taxes or interest imposed pursuant to Section 409A of the Code.
Appears in 1 contract
Sources: Business Combination Agreement (Apeiron Capital Investment Corp.)
Benefit Plans. (ia) Set Schedule 2.21 hereto sets forth on Schedule 3.19(aall employee benefit plans and arrangements (including plans described in Section 3(3) is a true and complete list of each material Benefit Plan of the Purchaser and its Subsidiaries Employee Retirement Income Security Act of 1974, as amended (each, a “Purchaser Benefit PlanERISA”). ) currently maintained by the Company or any Subsidiary for the general benefit of their employees, or previously maintained by the Company or any Subsidiary for the general benefit of their employees with respect to which the Company or any Subsidiary has any liability (the “Benefit Plans”).
(b) With respect to each Purchaser Benefit Plan, there are no funded benefit obligations for which contributions have not been materially the Company has made or properly accrued available to the Buyer true and there are no complete copies of the following documents, if applicable: (i) any and all plan documents and agreements, and all amendments thereto; (ii) any and all outstanding summary plan descriptions and material unfunded benefit obligations that have not been accounted for by reservesmodifications thereto; (iii) the most recently filed IRS Form 5500 annual report; (iv) the most recent determination letter received from the Internal Revenue Service with respect to each Benefit Plan intended to qualify under Section 401 of the Internal Revenue Code of 1986, or otherwise properly footnoted in accordance with GAAP on as amended (the Purchaser Financials. “Code”), and (v) the most recent annual and periodic accounting of plan assets.
(c) Except as set forth on Schedule 3.19(a)2.21, neither with respect to each Benefit Plan: (i) such plan has been administered in accordance with its terms and all Legal Requirements in all material respects; (ii) no breach of fiduciary duty has occurred with respect to which the Purchaser nor Company, any Subsidiary or has in any Benefit Plan could reasonably be expected to have any material liability; (iii) no material disputes nor any audits by any Governmental Authority are pending or, to the past been a member knowledge of a the Company, threatened; (iv) no non-exempt “controlled groupprohibited transaction” for purposes (within the meaning of either Section 414(b), (c), (m) or (o4975(c) of the Code other than with the Purchaser or another Subsidiary, nor does the Purchaser or any Subsidiary have any Liability Section 406 of ERISA) has occurred with respect to which the Company, any collectively-bargained for plans, whether Subsidiary or not any Benefit Plan would have any material liability; and (v) no Benefit Plan is subject to Title IV of ERISA or Section 302 of ERISA or Section 412 of the provisions of ERISACode.
(d) Except as set forth on Schedule 2.21, 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) Each Purchaser increase the amount of compensation or benefits due to any individual under any Benefit Plan.
(e) To the knowledge of the Company, no fact or event has occurred since the date of any IRS determination letter referred to above in Section 2.21(b)(iv) for any Benefit Plan in all material respects is and has been operated in compliance with all applicable Laws in all material respects, including ERISA and the Code. Each Purchaser Benefit Plan which is intended to be “qualified” within the meaning of Section 401(a) of the Code (i) has been determined by that would materially and adversely affect the IRS ability of the Company or any Subsidiary to be so qualified (or is based rely on a prototype plan which has received a favorable opinion such determination letter) during . None of the period from its adoption Benefit Plans are intended to satisfy the date requirements of this Agreement and (ii) is funded through a trust exempt from taxation under Section 501(a501(c)(9) of the Code. To the Knowledge of the Purchaser, no fact exists which could adversely affect the qualified status of such Purchaser Benefit Plans or the exempt status of such trusts.
(iiif) With respect Except as set forth on Schedule 2.21(f), no Benefit Plan provides medical, surgical, hospitalization, death or similar benefits (whether or not insured) for employees or former employees of the Company for periods extended beyond their retirement or other termination of service other than coverage mandated by any Legal Requirement.
(g) The terms of each of the Benefit Plans which is a “nonqualified deferred compensation plan” within the meaning of Section 409A of the Code (and associated Treasury Department guidance, including the applicable requirements of all transition guidance (collectively, “Guidance”)) comply with Section 409A of the Code (and associated Guidance), and each such “nonqualified deferred compensation plan” has been operated in compliance with Section 409A of the Code (and associated Guidance). Neither the Company nor any Subsidiary or ERISA Affiliate has any obligation to each Purchaser indemnify any participant of any Benefit Plan for any taxes imposed under Section 409A of the Code.
(h) To the extent permitted by applicable law and the applicable Benefit Plan, each Benefit Plan can be amended or terminated at any time, without consent from any other party and without liability other than for benefits accrued as of the Purchaser has made available to the Seller accurate and complete copies, if applicable, of: date of such amendment or termination (other than charges incurred as a result of such termination).
(i) all Purchaser Benefit Plan documents and agreements and related trust agreements or annuity Contracts (including None of the Company, any amendmentsSubsidiary, modifications or supplements thereto); (ii) all summary plan descriptions and material modifications thereto; (iii) the three (3) most recent Forms 5500, if applicable, and annual report, including all schedules thereto; (iv) the most recent annual and periodic accounting of plan assets; (v) the three (3) most recent nondiscrimination testing reports; (vi) the most recent determination letter received from the IRS, if any; (vii) the most recent actuarial valuation; and (viii) all material written communications between the Purchaser or any Subsidiary or ERISA Affiliate has incurred any Purchaser Benefit Plan and any Governmental Authority and relating to a Purchaser Benefit Plan within six (6) years preceding the date of this Agreement.
(iv) With respect to each Purchaser Benefit Plan: (i) such Purchaser Benefit Plan has been administered and enforced in all material respects in accordance with its terms, the Code and ERISA; (ii) neither the Purchaser nor any Subsidiary nor any employee, officer or director thereof that is a fiduciary (under ERISA) with respect to such Purchaser Benefit Plan has breached any of its fiduciary responsibilities, obligations or duties imposed on it by ERISA; (iii) no Action is pending or threatened in writing (other than routine claims for benefits arising in the ordinary course of administration); (iv) nothing has occurred with respect to any Purchaser Benefit Plan that has subjected the Purchaser or any Subsidiary to any material penalty under Section 502 of ERISA or Section 4975 of the Code; and (v) all contributions and premiums due through the Closing Date have been made in all material respects as required under ERISA or have been fully accrued in all material respects on the Purchaser Financials.
(v) No Purchaser Benefit Plan is, and neither the Purchaser or any Subsidiary or any of their respective ERISA Affiliates sponsors, maintains, contributes to, is required to contribute toliability, or otherwise has or could is reasonably be expected to have incur any current or contingent Liability liability, under or with respect to, a “defined benefit plan” (as defined in Section 414(j) of the Code), a “multiemployer plan” (as defined in Section 3(37) Title IV of ERISA) or a “multiple employer plan” (as described in , Section 413(c) of the Code) or is otherwise subject to Title IV 302 of ERISA or Section 412 of the Code, including any liability under Section 4069 or Section 4212(c) of ERISA. To "ERISA Affiliate" means any entity with which the Purchaser’s Knowledge, no Purchaser Benefit Plan will become a multiple employer plan with respect to any Purchaser Entity immediately after the Closing Date. Neither the Purchaser nor Company or any Subsidiary currently maintains or has ever maintained, or is required currently or has ever been required would be deemed to contribute to or otherwise participate in, be a multiple employer welfare arrangement or voluntary employees’ beneficiary association as defined in Section 501(c)(9) of the Code. For purposes of this Agreement, “ERISA Affiliate” means, with respect to any Person, any Person or entity (whether or not incorporated) that is under common control or treated as one single employer under Section 4001(b)(1) of ERISA or Section 414(b), (c), (m414(b),(c),(m) or (o) of the Code, or Section 4001 of ERISA.
(j) No event has occurred that presents a material risk that any Benefit Plan that is intended to be qualified under Code Section 401(a) has experienced a partial termination within the meaning of Code Section 411(d)(3).
Appears in 1 contract
Sources: Securities Purchase Agreement (Henry Jack & Associates Inc)
Benefit Plans. (ia) Set forth on Schedule 3.19(a4.19(a) is a true and complete list of each material Benefit Plan of the Purchaser and its Subsidiaries a Target Company (each, a “Purchaser Company Benefit Plan”). With respect to each Purchaser Company Benefit Plan, there are no funded benefit obligations for which contributions have not been materially made or properly accrued and there are no material unfunded benefit obligations that have not been accounted for by reserves, or otherwise properly footnoted in accordance with GAAP on the Purchaser Company Financials. Except as set forth on Schedule 3.19(a), neither the Purchaser nor any Subsidiary No Target Company is or has in the past been a member of a “controlled group” for purposes of Section 414(b), (c), (m) or (o) of the Code other than with the Purchaser or another SubsidiaryCode, nor does the Purchaser or any Subsidiary Target Company have any Liability with respect to any collectively-bargained for plans, whether or not subject to the provisions of ERISA. No statement, either written or oral, has been made by any Target Company to any Person with regard to any Company Benefit Plan that was not in accordance with the Company Benefit Plan in any material respect.
(iib) Each Purchaser Company Benefit Plan in all material respects is and has been operated at all times in compliance with all applicable Laws in all material respects, including ERISA and the Code. Each Purchaser Company Benefit Plan which is intended to be “qualified” within the meaning of Section 401(a) of the Code (i) has been determined by the IRS to be so qualified (or is based on a prototype plan which has received a favorable opinion letter) during the period from its adoption to the date of this Agreement and (ii) is funded through a its related trust has been determined to be exempt from taxation under Section 501(a) of the CodeCode or the Target Companies have requested an initial favorable IRS determination of qualification and/or exemption within the period permitted by applicable Law. To the Knowledge of the PurchaserCompany, no fact exists which could materially adversely affect the qualified status of such Purchaser Company Benefit Plans or the exempt status of such trusts.
(iiic) With respect to each Purchaser Company Benefit PlanPlan which covers any current or former officer, director, consultant or employee (or beneficiary thereof) of a Target Company, the Company has provided to Purchaser has made available to the Seller accurate and complete copies, if applicable, of: (i) all Purchaser Company Benefit Plan documents texts and agreements and related trust agreements or annuity Contracts (including any amendments, modifications or supplements thereto); (ii) all summary plan descriptions and material modifications thereto; (iii) the three (3) most recent Forms 5500, if applicable, and annual report, including all schedules thereto; (iv) the most recent annual and periodic accounting of plan assets; (v) the three (3) most recent nondiscrimination testing reports; (vi) the most recent determination letter received from the IRS, if any; (vii) the most recent actuarial valuation; and (viii) all material written communications between the Purchaser or any Subsidiary or any Purchaser Benefit Plan and with any Governmental Authority and relating to a Purchaser Benefit Plan within six (6) years preceding the date of this AgreementAuthority.
(ivd) With respect to each Purchaser Company Benefit Plan: (i) such Purchaser Company Benefit Plan has been administered and enforced in all material respects in accordance with its terms, the Code and ERISA; (ii) neither the Purchaser nor any Subsidiary nor any employee, officer or director thereof that is a no material breach of fiduciary (under ERISA) with respect to such Purchaser Benefit Plan duty has breached any of its fiduciary responsibilities, obligations or duties imposed on it by ERISAoccurred; (iii) no Action is pending pending, or to the Company’s Knowledge, threatened in writing (other than routine claims for benefits arising in the ordinary course of administration); (iv) nothing has occurred with respect to any Purchaser Benefit Plan that has subjected the Purchaser or any Subsidiary to any material penalty under no prohibited transaction, as defined in Section 502 406 of ERISA or Section 4975 of the Code, has occurred, excluding transactions effected pursuant to a statutory or administration exemption; and (v) all contributions and premiums due through the Closing Date have been made in all material respects as required under ERISA or have been fully accrued in all material respects on the Purchaser Company Financials.
(ve) No Purchaser Company Benefit Plan is, and neither the Purchaser or any Subsidiary or any of their respective ERISA Affiliates sponsors, maintains, contributes to, is required to contribute to, or otherwise has or could reasonably be expected to have any current or contingent Liability under or with respect to, a “defined benefit plan” (as defined in Section 414(j) of the Code), a “multiemployer plan” (as defined in Section 3(37) of ERISA) or a “multiple employer plan” (as described in Section 413(c) of the Code) or is otherwise subject to Title IV of ERISA or Section 412 of the Code, and no Target Company has incurred any Liability or, to the Knowledge of the Company, otherwise could have any Liability, contingent or otherwise, under Title IV of ERISA and no condition presently exists that is expected to cause such Liability to be incurred. To the Purchaser’s Knowledge, no Purchaser No Company Benefit Plan will become a multiple employer plan with respect to any Purchaser Entity Target Company immediately after the Closing Date. Neither the Purchaser nor any Subsidiary No Target Company currently maintains or has ever maintained, or is required currently or has ever been required to contribute to or otherwise participate in, a multiple employer welfare arrangement or voluntary employees’ beneficiary association as defined in Section 501(c)(9) of the Code. For purposes of this Agreement, “ERISA Affiliate” means, .
(f) There is no arrangement under any Company Benefit Plan with respect to any Personemployee that would result in the payment of any amount that by operation of Sections 280G or 162(m) of the Code would not be deductible by the Target Companies and no arrangement exists pursuant to which a Target Company will be required to “gross up” or otherwise compensate any person because of the imposition of any excise tax on a payment to such person.
(g) With respect to each Company Benefit Plan which is a “welfare plan” (as described in Section 3(1) of ERISA): (i) no such plan provides medical or death benefits with respect to current or former employees of a Target Company beyond their termination of employment (other than coverage mandated by Law, which is paid solely by such employees); and (ii) there are no reserves, assets, surplus or prepaid premiums under any such plan. Each Target Company has complied with the provisions of Section 601 et seq. of ERISA and Section 4980B of the Code.
(h) The consummation of the transactions contemplated by this Agreement and the Ancillary Documents will not: (i) entitle any individual to severance pay, unemployment compensation or other benefits or compensation; (ii) accelerate the time of payment or vesting, or increase the amount of any compensation due, or in respect of, any Person individual; or entity (whether iii) result in or not incorporated) satisfy a condition to the payment of compensation that is would, in combination with any other payment, result in an “excess parachute payment” within the meaning of Section 280G of the Code. No Target Company has incurred any Liability for any Tax imposed under common control Chapter 43 of the Code or treated as one employer civil liability under Section 4001(b)(1) of ERISA or Section 414(b), (c), (m502(i) or (ol) of ERISA.
(i) Except to the extent required by Section 4980B of the Code or similar state Law, no Target Company provides health or welfare benefits to any former or retired employee or is obligated to provide such benefits to any active employee following such employee’s retirement or other termination of employment or service.
(j) All Company Benefit Plans can be terminated at any time as of or after the Closing Date without resulting in any Liability to the Surviving Corporation or Purchaser or their respective Affiliates for any additional contributions, penalties, premiums, fees, fines, excise taxes or any other charges or liabilities.
(k) Each Company Benefit Plan that is subject to Section 409A of the Code (each, a “Section 409A Plan”) as of the Closing Date is indicated as such on Schedule 4.19(k). No Company Options or other equity-based awards have been issued or granted by the Company that are, or are subject to, a Section 409A Plan. Each Section 409A Plan has been administered in compliance, and is in documentary compliance, with the applicable provisions of Section 409A of the Code, the regulations thereunder and other official guidance issued thereunder. No Target Company has any obligation to any employee or other service provider with respect to any Section 409A Plan that may be subject to any Tax under Section 409A of the Code. No payment to be made under any Section 409A Plan is, or to the Knowledge of the Company will be, subject to the penalties of Section 409A(a)(1) of the Code. There is no Contract or plan to which any Target Company is a party or by which it is bound to compensate any employee, consultant or director for penalty taxes paid pursuant to Section 409A of the Code.
Appears in 1 contract
Sources: Agreement and Plan of Merger (AMCI Acquisition Corp.)
Benefit Plans. (ia) Set forth on Schedule 3.19(a) is a true and complete list of each material Benefit Plan None of the Purchaser and its Subsidiaries Companies maintains, administers or contributes to: (each1) any employee benefit plan (as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, a “Purchaser Benefit as amended ("ERISA") ("Plan”"). With respect to each Purchaser Benefit Plan, there are no funded benefit obligations for which contributions have not been materially made or properly accrued and there are no material unfunded benefit obligations that have not been accounted for by reserves, or otherwise properly footnoted in accordance with GAAP on the Purchaser Financials. Except as set forth on Schedule 3.19(a), neither the Purchaser nor including, without limitation, any Subsidiary or has multiemployer plan as defined in the past been a member Section 3(37) of a “controlled group” for purposes of Section 414(b), ERISA (c), (m"Multiemployer Plan") or (o2) any bonus, deferred compensation, performance compensation, stock purchase, stock option, stock appreciation, severance, salary continuation, vacation, sick leave, holiday pay, fringe benefit, personnel policy, reimbursement program, incentive, insurance, welfare or similar plan, program, policy or arrangement ("Benefit Plan"), other than those Plans and Benefit Plans described in Section 2.9 of the Code other than with the Purchaser or another Subsidiary, nor does the Purchaser or any Subsidiary have any Liability with respect to any collectively-bargained for plans, whether or not subject to the provisions of ERISA.
(ii) Each Purchaser Benefit Plan in all material respects is Seller Disclosure Schedule. All Plans and has been operated in compliance with all applicable Laws in all material respects, including ERISA and the Code. Each Purchaser Benefit Plan which is intended to be “qualified” within the meaning of Section 401(a) of the Code (i) has been determined by the IRS to be so qualified (or is based on a prototype plan which has received a favorable opinion letter) during the period from its adoption to the date of this Agreement and (ii) is funded through a trust exempt from taxation under Section 501(a) of the Code. To the Knowledge of the Purchaser, no fact exists which could adversely affect the qualified status of such Purchaser Benefit Plans or the exempt status of such trusts.
(iii) With respect to each Purchaser Benefit Plan, the Purchaser has made available to the Seller accurate and complete copies, if applicable, of: (i) all Purchaser Benefit Plan documents and agreements and related trust agreements or annuity Contracts contracts (including any amendments, modifications or supplements thereto); (iirelated trust instruments) all summary plan descriptions and material modifications thereto; (iii) the three (3) most recent Forms 5500, if applicable, and annual report, including all schedules thereto; (iv) the most recent annual and periodic accounting of plan assets; (v) the three (3) most recent nondiscrimination testing reports; (vi) the most recent determination letter received from the IRS, if any; (vii) the most recent actuarial valuation; and (viii) comply in all material written communications between the Purchaser or any Subsidiary or any Purchaser Benefit Plan respects with and any Governmental Authority are and relating to a Purchaser Benefit Plan within six (6) years preceding the date of this Agreement.
(iv) With respect to each Purchaser Benefit Plan: (i) such Purchaser Benefit Plan has have been administered and enforced operated in all material respects in accordance with its termsERISA, the Code Code, other Federal statutes, state law and ERISA; (ii) neither the Purchaser nor any Subsidiary nor any employee, officer regulations and rules promulgated pursuant thereto or director thereof that is a fiduciary (under ERISA) with respect to such Purchaser Benefit Plan has breached any of its fiduciary responsibilities, obligations or duties imposed on it by ERISA; (iii) no Action is pending or threatened in writing (other than routine claims for benefits arising in the ordinary course of administration); (iv) nothing has occurred with respect to any Purchaser Benefit Plan that has subjected the Purchaser or any Subsidiary to any material penalty under Section 502 of ERISA or Section 4975 of the Code; and (v) all contributions and premiums due through the Closing Date have been made in all material respects as required under ERISA or have been fully accrued in all material respects on the Purchaser Financials.
(v) No Purchaser Benefit Plan is, and neither the Purchaser or any Subsidiary or any of their respective ERISA Affiliates sponsors, maintains, contributes to, is required to contribute to, or otherwise has or could reasonably be expected to have any current or contingent Liability under or with respect to, a “defined benefit plan” (as defined in Section 414(j) of the Code), a “multiemployer plan” (as defined in Section 3(37) of ERISA) or a “multiple employer plan” (connection therewith. Except as described in Section 413(c2.9 of the Seller Disclosure Schedule, no withdrawals have occurred so as to cause any Plan to become subject to the provisions of Section 4063 of ERISA, nor have any of the Companies ceased making contributions to any Plan subject to Section 4064(a) of ERISA to which any of the CodeCompanies made contributions during the six (6) years prior to the date hereof nor ceased operations at a facility so as to become subject to Section 4062(e) of ERISA. True and complete copies of each Plan, Benefit Plan, related trust agreements, annuity contracts, determination letters, summary plan descriptions, annual reports on Form 5500 and Form 990, if any, will be made available to Purchaser. None of the Companies has incurred any liability to the Pension Benefit Guaranty Corporation ("PBGC"), including as a result of the voluntary or involuntary termination of any Plan which is otherwise subject to Title IV of ERISA. There is currently no active filing by any of the Companies with the PBGC (and no proceeding has been commenced by the PBGC and no condition exists and no event has occurred that could constitute grounds for the termination of any Plan by the PBGC) to terminate any Plan which is subject to Title IV of ERISA and which has been maintained or Section 412 funded, in whole or in party, by any of the CodeCompanies. To None of the Purchaser’s Knowledge, no Purchaser Benefit Plan will become a multiple employer plan with respect to any Purchaser Entity immediately after the Closing Date. Neither the Purchaser nor any Subsidiary currently maintains or Companies has ever maintained, contributed to or is required currently or has ever been required obligated to contribute to or otherwise participate ina Multiemployer Plan.
(b) Except as disclosed in Section 2.9 of the Seller Disclosure Schedule, a multiple employer welfare arrangement or voluntary employees’ beneficiary association there has been no reportable event, as defined in Section 501(c)(94043(b) of ERISA, nor has there been any event which would require a report to the Code. For purposes PBGC, Department of this Agreement, “Labor or Internal Revenue Service under ERISA Affiliate” meansor the Code (other than summary plan descriptions and annual reports filed in the normal course), with respect to any PersonPlan or any Benefit Plan for which notice has not been waived by rule or regulation. Except as disclosed in Section 2.9 of the Seller Disclosure Schedule, none of the Companies has any Person liability to the PBGC (other than any liability for insurance premiums not yet due to the PBGC), to any present or entity former participant in or beneficiary of any Plan or Benefit Plan, or any beneficiary of any such participant or beneficiary (except with respect to normal benefits due under any Plan or Benefit Plan), or to any Plan or Benefit Plan (except with respect to normal funding obligations). Except as disclosed in Section 2.9 of the Seller Disclosure Schedule, no event, fact or circumstance has arisen or occurred that has, subject only to the exceptions in the preceding sentence, resulted in or may reasonably be expected to result in any such liability or a claim against any of the Companies by the PBGC, by any present or former participant in or any beneficiary of any Plan or Benefit Plan (or any beneficiary of any such participant or beneficiary), or by any such Plan or Benefit Plan. Except as disclosed in Section 2.9 of the Seller Disclosure Schedule, (1) no filing has been or will be made by any of the Companies in connection with the complete or partial termination of any Plan, (2) no complete or partial termination of any Plan has occurred or, as a result of the execution or delivery of this Agreement or the consummation of the transactions contemplated by this Agreement, will occur, except as otherwise disclosed in Section 2.9 of the Seller Disclosure Schedule, and (3) none of the Companies has engaged in any transaction, within the meaning of Section 4069 of ERISA.
(c) The actuarial assumptions utilized, where appropriate, in connection with determining the funding of each Plan which is a defined benefit pension plan (as set forth in the actuarial report for such Plan) are reasonable. A copy of the latest such actuarial report has been previously furnished to the Purchaser. Based on such actuarial assumptions, as of December 31, 1996, the fair market value of the assets or properties held under each such Plan exceeds the actuarially determined present value of all accrued benefits of such Benefit Plan (whether or not incorporatedvested) that is under common control or treated determined on an ongoing Plan basis.
(d) Except as one employer under disclosed in Section 4001(b)(1) of ERISA or Section 414(b), (c), (m) or (o) 2.9 of the CodeSeller Disclosure Schedule, there are no pending or, to the knowledge of the Sellers, threatened actions, suits, investigations or other proceedings by any present or former participant or beneficiary under any Plan or Benefit Plan (or any beneficiary of any such participant or beneficiary) involving any Plan or Benefit Plan or any rights or benefits under any Plan or Benefit Plan other than ordinary and usual claims for benefits by participants or beneficiaries thereunder. There is no writ, judgment, decree, injunction or similar order of any court, governmental or regulatory authority, or other similar Person outstanding against or in favor of any Plan or Benefit Plan or any fiduciary thereof.
(e) Except as disclosed in Section 2.9 of the Seller Disclosure Schedule, none of the Companies maintains or contributes to any Benefit Plan which provides, or has any liability or obligation to provide, life insurance, medical or other employee welfare benefits to any employee (or his beneficiary) upon such employee's retirement or termination of employment except as may be required by federal, state or local laws, rules or regulations, and none of the Companies has ever represented, promised or contracted to or with any employee or former employee that such employee or former employee would be provided life insurance, medical or other employee welfare benefits upon their retirement or termination of employment, except to the extent required by federal, state or local laws, rules or regulations.
Appears in 1 contract
Benefit Plans. (i) Set forth on Section 5.15 of the Disclosure Schedule 3.19(a) is contains a true and complete list of each material all Benefit Plan Plans covering Company Employees, and copies of all such written Benefit Plans have been made available to the Purchaser and its Subsidiaries (each, a “Purchaser Benefit Plan”)Buyer. With respect to each Purchaser all Benefit Plan, there are no funded benefit obligations for which contributions have not been materially made or properly accrued and there are no material unfunded benefit obligations that have not been accounted for by reserves, or otherwise properly footnoted Plans listed in accordance with GAAP on the Purchaser Financials. Except as set forth on Schedule 3.19(a), neither the Purchaser nor any Subsidiary or has in the past been a member of a “controlled group” for purposes of Section 414(b), (c), (m) or (o) 5.15 of the Code other than with Disclosure Schedule and except as disclosed in Section 5.15 of the Purchaser or another Subsidiary, nor does the Purchaser or any Subsidiary have any Liability with respect to any collectively-bargained for plans, whether or not subject to the provisions of ERISA.Disclosure Schedule:
(iia) Each Purchaser such Benefit Plan and the administration thereof complies, and has at all times complied, in all material respects is with its terms and has been operated in compliance with all applicable Laws in all material respectsRequirements of Laws, including requirements of ERISA and the Code. Each Purchaser , and each Benefit Plan which is intended to be “qualified” within the meaning of Section qualify under section 401(a) of the Code (i) has been determined by the IRS to be so qualified (or is based on a prototype plan which has received a favorable opinion letter) during the period from at all times since its adoption to the date been so qualified, and each trust which forms a part of this Agreement and (ii) is funded through a trust any such plan has at all times since its adoption been tax-exempt from taxation under Section section 501(a) of the Code. To ;
(b) No such Benefit Plan is a “multiemployer plan” as such term is defined in section 4001(a)(3) of ERISA;
(c) No liability has been incurred or is expected to be incurred under Title IV of ERISA by any party with respect to (i) any Benefit Plan or (ii) any other plan currently or heretofore maintained or contributed to by the Knowledge Company, any predecessor to the Company, or any ERISA Affiliate;
(d) The Company has not incurred any material liability for any Tax imposed under sections 4971 through 4980B of the Purchaser, no fact exists which could adversely affect the qualified status Code or civil liability under section 502(i) or (1) of such Purchaser Benefit Plans or the exempt status of such trusts.ERISA;
(iiie) With respect to each Purchaser No such Benefit Plan provides or has ever provided health or death benefit coverage beyond the termination of an employee’s employment, except as required by Part 6 of Title I of ERISA or section 4980B of the Code or similar state laws;
(f) No benefit under any Benefit Plan, the Purchaser has made available to the Seller accurate and complete copiesincluding, if applicablewithout limitation, of: (i) all Purchaser Benefit Plan documents and agreements and related trust agreements any severance or annuity Contracts (including parachute payment plan or agreement, will be established or become accelerated, vested or payable by reason of any amendments, modifications or supplements thereto); (ii) all summary plan descriptions and material modifications thereto; (iii) the three (3) most recent Forms 5500, if applicable, and annual report, including all schedules thereto; (iv) the most recent annual and periodic accounting of plan assets; (v) the three (3) most recent nondiscrimination testing reports; (vi) the most recent determination letter received from the IRS, if any; (vii) the most recent actuarial valuation; and (viii) all material written communications between the Purchaser or any Subsidiary or any Purchaser Benefit Plan and any Governmental Authority and relating to a Purchaser Benefit Plan within six (6) years preceding the date of transaction contemplated under this Agreement.;
(ivg) With respect to each Purchaser Benefit Plan: (i) such Purchaser Benefit Plan The Company has been administered and enforced complied in all material respects in accordance with its termsthe health care continuation requirements of Section 601, the Code and et. seq., of ERISA; and
(iih) neither the Purchaser nor any Subsidiary nor any employee, officer or director thereof that is a fiduciary No Legal Proceeding (under ERISA) with respect to such Purchaser Benefit Plan has breached any of its fiduciary responsibilities, obligations or duties imposed on it by ERISA; (iii) no Action is pending or threatened in writing (other than routine excluding claims for benefits arising incurred in the ordinary course of administration); (ivplan activities) nothing has occurred been brought against or with respect to any Purchaser Benefit Plan that has subjected the Purchaser or any Subsidiary to any material penalty under Section 502 of ERISA or Section 4975 of the Code; and (v) all contributions and premiums due through the Closing Date have been made in all material respects as required under ERISA or have been fully accrued in all material respects on the Purchaser FinancialsPlan.
(v) No Purchaser Benefit Plan is, and neither the Purchaser or any Subsidiary or any of their respective ERISA Affiliates sponsors, maintains, contributes to, is required to contribute to, or otherwise has or could reasonably be expected to have any current or contingent Liability under or with respect to, a “defined benefit plan” (as defined in Section 414(j) of the Code), a “multiemployer plan” (as defined in Section 3(37) of ERISA) or a “multiple employer plan” (as described in Section 413(c) of the Code) or is otherwise subject to Title IV of ERISA or Section 412 of the Code. To the Purchaser’s Knowledge, no Purchaser Benefit Plan will become a multiple employer plan with respect to any Purchaser Entity immediately after the Closing Date. Neither the Purchaser nor any Subsidiary currently maintains or has ever maintained, or is required currently or has ever been required to contribute to or otherwise participate in, a multiple employer welfare arrangement or voluntary employees’ beneficiary association as defined in Section 501(c)(9) of the Code. For purposes of this Agreement, “ERISA Affiliate” means, with respect to any Person, any Person or entity (whether or not incorporated) that is under common control or treated as one employer under Section 4001(b)(1) of ERISA or Section 414(b), (c), (m) or (o) of the Code.
Appears in 1 contract
Sources: Stock Purchase Agreement (American Safety Insurance Holdings LTD)
Benefit Plans. (ia) Set forth on Schedule 3.19(a4.15(a) is lists all Benefit Plans sponsored by ▇▇▇▇▇-▇▇▇▇▇ and its ERISA Affiliates. Such Benefit Plans have been maintained in compliance in all material respects with their terms and applicable Law. Seller has provided to Buyer, to the extent applicable to each such Benefit Plan, a true and complete list of each material Benefit Plan copy of the Purchaser and its Subsidiaries (each, a “Purchaser following: the plan document for each such Benefit Plan”); the related trust agreement, insurance contract or other funding arrangement; the most recent report on Form 5500; and the most recent summary plan description. With respect to each Purchaser Benefit Plan, there There are no funded benefit obligations Proceedings pending (other than routine claims for which benefits) or, to the Knowledge of Seller, threatened against, or with respect to, any of such Benefit Plans or their assets. All contributions required to be made to such Benefit Plans pursuant to their terms and the provisions of applicable Law have not been materially timely made or properly accrued and there are no material unfunded benefit obligations that have not been accounted for by reserves, or otherwise properly footnoted in accordance with GAAP on the Purchaser Financialsbooks of ▇▇▇▇▇-▇▇▇▇▇ in a manner consistent with past practice. Except as set forth on Schedule 3.19(a), neither the Purchaser nor any Subsidiary or has in the past been a member of a “controlled group” for purposes of Section 414(b), (c), (m) or (o) of the Code other than with the Purchaser or another Subsidiary, nor does the Purchaser or any Subsidiary have any Liability There is no matter pending with respect to any collectively-bargained for plansof such Benefit Plans before any Governmental Entity. For purposes of this Agreement, an “ERISA Affiliate” means each trade or business (whether or not subject to the provisions of ERISA.
(iiincorporated) Each Purchaser Benefit Plan in all material respects is and has been operated in compliance that together with all applicable Laws in all material respects, including ERISA and the Code. Each Purchaser Benefit Plan which is intended ▇▇▇▇▇-▇▇▇▇▇ would be deemed to be a “qualifiedsingle employer” within the meaning of Section 401(a) 4001 of the Code (i) has been determined by the IRS to be so qualified (ERISA or is based on a prototype plan which has received a favorable opinion letter) during the period from its adoption to the date of this Agreement and (ii) is funded through a trust exempt from taxation under Section 501(a) 414 of the Code. To the Knowledge of the Purchaser, no fact exists which could adversely affect the qualified status of such Purchaser Schedule 4.15(a) also lists all Benefit Plans or the exempt status of such trustssponsored by ▇▇▇▇▇▇▇▇ in which Workers are eligible to participate.
(iiib) With respect to each Purchaser Benefit PlanNeither ▇▇▇▇▇-▇▇▇▇▇ nor any ERISA Affiliate of ▇▇▇▇▇-▇▇▇▇▇ sponsors, maintains, or directly contributes to, or has, within the Purchaser has made available to the Seller accurate and complete copies, if applicable, of: (i) all Purchaser Benefit Plan documents and agreements and related trust agreements or annuity Contracts (including any amendments, modifications or supplements thereto); (ii) all summary plan descriptions and material modifications thereto; (iii) the three (3) most recent Forms 5500, if applicable, and annual report, including all schedules thereto; (iv) the most recent annual and periodic accounting of plan assets; (v) the three (3) most recent nondiscrimination testing reports; (vi) the most recent determination letter received from the IRS, if any; (vii) the most recent actuarial valuation; and (viii) all material written communications between the Purchaser or any Subsidiary or any Purchaser Benefit Plan and any Governmental Authority and relating to a Purchaser Benefit Plan within past six (6) years preceding the date of this Agreement.
(iv) With respect to each Purchaser Benefit Plan: (i) such Purchaser Benefit Plan has been administered and enforced in all material respects in accordance with its termsyears, the Code and ERISA; (ii) neither the Purchaser nor any Subsidiary nor any employeesponsored, officer maintained or director thereof that is a fiduciary (under ERISA) with respect to such Purchaser Benefit Plan has breached any of its fiduciary responsibilities, obligations or duties imposed on it by ERISA; (iii) no Action is pending or threatened in writing (other than routine claims for benefits arising in the ordinary course of administration); (iv) nothing has occurred with respect to any Purchaser Benefit Plan that has subjected the Purchaser or any Subsidiary to any material penalty under Section 502 of ERISA or Section 4975 of the Code; and (v) all contributions and premiums due through the Closing Date have been made in all material respects as required under ERISA or have been fully accrued in all material respects on the Purchaser Financials.
(v) No Purchaser Benefit Plan is, and neither the Purchaser or any Subsidiary or any of their respective ERISA Affiliates sponsors, maintains, contributes directly contributed to, is required to contribute to, or otherwise has or could reasonably be expected to have any current or contingent Liability under or with respect to, a “defined benefit plan” (as defined in Section 414(j) of the Code), a “multiemployer plan” (as defined in within the meaning of Section 3(37) of ERISA) or ), a “multiple employer plan” (as described in Section 413(c) of the Code) or is otherwise plan subject to Title IV of ERISA or Section 412 of the Code. To , a plan intended to be qualified under Section 401(a) of the Purchaser’s Knowledge, no Purchaser Benefit Plan will become a multiple employer plan with respect to any Purchaser Entity immediately after the Closing Date. Neither the Purchaser nor any Subsidiary currently maintains or has ever maintainedCode, or a plan funded pursuant to a trust that is required currently or has ever been required intended to contribute be exempt from federal income taxation pursuant to or otherwise participate in, a multiple employer welfare arrangement or voluntary employees’ beneficiary association as defined in Section 501(c)(9) of the Code.
(c) ▇▇▇▇▇-▇▇▇▇▇ and its ERISA Affiliates have paid and discharged promptly all obligations and liabilities arising under ERISA or the Code of a character which, if unpaid or unperformed, might result in a claim against Buyer or ▇▇▇▇▇-▇▇▇▇▇ or the imposition of a lien against ▇▇▇▇▇-▇▇▇▇▇ or its assets. For purposes The execution and delivery of this AgreementAgreement and the consummation of the Transactions or the Reorganization will not (i) require ▇▇▇▇▇-▇▇▇▇▇ to make a larger contribution to, “ERISA Affiliate” means, with respect to any Personor pay greater benefits or provide other rights under, any Person or entity (Benefit Plan than it otherwise would, whether or not incorporated) that is under common control some other subsequent action or treated as one employer under Section 4001(b)(1) of ERISA event would be required to cause such payment or Section 414(b)provision to be triggered, (c), (m) or (oii) of the Codecreate or give rise to any additional vested rights or service credits under any Benefit Plan.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Forum Energy Technologies, Inc.)
Benefit Plans. (ia) Set forth on Schedule 3.19(a4.19(a) is a true and complete list of each material Benefit Plan of the Purchaser and its Subsidiaries a Target Company (each, a “Purchaser Company Benefit Plan”). With respect to each Purchaser Company Benefit Plan, there are no funded benefit obligations for which contributions have not been materially made or properly accrued and there are no material unfunded benefit obligations that have not been accounted for by reserves, or otherwise properly footnoted in accordance with GAAP on the Purchaser Company Financials. Except as set forth on Schedule 3.19(a), neither the Purchaser nor any Subsidiary No Target Company is or has in the past been a member of a “controlled group” for purposes of Section 414(b), (c), (m) or (o) of the Code other than with the Purchaser or another SubsidiaryCode, nor does the Purchaser or any Subsidiary Target Company have any Liability with respect to any collectively-bargained for plans, whether or not subject to the provisions of ERISA.
(iib) Each Purchaser Company Benefit Plan in all material respects is and has been operated at all times in compliance with all applicable Laws in all material respects, including ERISA and the Code. Each Purchaser Company Benefit Plan which is intended to be “qualified” within the meaning of Section 401(a) of the Code (i) has been determined by the IRS to be so qualified (or is based on a prototype plan which has received a favorable opinion letter) during the period from its adoption to the date of this Agreement and (ii) is funded through a its related trust has been determined to be exempt from taxation under Section 501(a) of the CodeCode or the Target Companies have requested an initial favorable IRS determination of qualification and/or exemption within the period permitted by applicable Law. To the Knowledge of the PurchaserCompany’s Knowledge, no fact exists which could adversely affect the qualified status of such Purchaser Company Benefit Plans or the exempt status of such trusts.
(iiic) With respect to each Purchaser Company Benefit PlanPlan which covers any current or former officer, director, consultant or employee (or beneficiary thereof) of a Target Company, the Company has provided to Purchaser has made available to the Seller accurate and complete copies, if applicable, of: (i) all Purchaser Company Benefit Plan documents and agreements and related trust agreements or annuity Contracts (including any amendments, modifications or supplements thereto); (ii) all summary plan descriptions and summary of material modifications thereto; (iii) the three (3) most recent Forms 5500, if applicable, and annual report, including all schedules thereto; (iv) the most recent annual and periodic accounting of plan assets; (v) the three (3) most recent nondiscrimination testing reports; (vi) the most recent determination letter received from the IRS, if any; (vii) the most recent actuarial valuation; and (viii) all material written communications between the Purchaser or any Subsidiary or any Purchaser Benefit Plan and with any Governmental Authority and relating to a Purchaser Benefit Plan within six the last three (63) years preceding the date of this Agreementyears.
(ivd) With respect to each Purchaser Company Benefit Plan: (i) such Purchaser Company Benefit Plan has been administered and enforced in all material respects in accordance with its terms, the Code and ERISA; (ii) neither the Purchaser nor any Subsidiary nor any employee, officer or director thereof that is a no breach of fiduciary (under ERISA) with respect to such Purchaser Benefit Plan duty has breached any of its fiduciary responsibilities, obligations or duties imposed on it by ERISAoccurred; (iii) no Action is pending pending, or to the Company’s Knowledge, threatened in writing (other than routine claims for benefits arising in the ordinary course of administration); (iv) nothing has occurred with respect to any Purchaser Benefit Plan that has subjected the Purchaser or any Subsidiary to any material penalty under no prohibited transaction, as defined in Section 502 406 of ERISA or Section 4975 of the Code, has occurred, excluding transactions effected pursuant to a statutory or administration exemption; and (v) all contributions and premiums due through the Closing Date have been made in all material respects as required under ERISA or have been fully accrued in all material respects on the Purchaser Company Financials.
(ve) No Purchaser Company Benefit Plan is, and neither the Purchaser or any Subsidiary or any of their respective ERISA Affiliates sponsors, maintains, contributes to, is required to contribute to, or otherwise has or could reasonably be expected to have any current or contingent Liability under or with respect to, a “defined benefit plan” (as defined in Section 414(j) of the Code), a “multiemployer plan” (as defined in Section 3(37) of ERISA) or a “multiple employer plan” (as described in Section 413(c) of the Code) or is otherwise subject to Title IV of ERISA or Section 412 of the Code, and no Target Company has incurred any Liability or otherwise could have any Liability, contingent or otherwise, under Title IV of ERISA and no condition presently exists that is expected to cause such Liability to be incurred. To the Purchaser’s Knowledge, no Purchaser No Company Benefit Plan will become a multiple employer plan with respect to any Purchaser Entity Target Company immediately after the Closing Date. Neither the Purchaser nor any Subsidiary No Target Company currently maintains or has ever maintained, or is required currently or has ever been required to contribute to or otherwise participate in, a multiple employer welfare arrangement or voluntary employees’ beneficiary association as defined in Section 501(c)(9) of the Code.
(f) No arrangement exists pursuant to which a Target Company will be required to “gross up” or otherwise compensate any person because of the imposition of any excise tax on a payment to such person.
(g) With respect to each Company Benefit Plan which is a “welfare plan” (as described in Section 3(1) of ERISA): (i) no such plan provides medical or death benefits with respect to current or former employees of a Target Company beyond their termination of employment (other than coverage mandated by Law, which is paid solely by such employees); and (ii) there are no reserves, assets, surplus or prepaid premiums under any such plan. For The Target Company has complied in all material respects with the provisions of Section 601 et seq. of ERISA and Section 4980B of the Code.
(h) Each Company Benefit Plan satisfies the requirements of the Patient Protection and Affordable Care Act of 2010 (the “PPACA”), such that there is no reasonable expectation that any Tax or penalty could be imposed pursuant to the PPACA that relates to such group health plan. To the Knowledge of the Company, no condition exists that could cause any Target Company to have any Liability for any assessable payment under Section 4980H of the Code. To the Knowledge of the Company, no event has occurred, or condition exists, that could subject any Target Company to any Liability on account of a violation of the health care requirements of Part 6 or 7 of Title I of ERISA or Section 4980B or 4980D of the Code. Each Target Company has maintained records that are sufficient to satisfy the reporting requirements under Sections 6055 and 6056 of the Code, to the extent required, for all periods of time up to and through the Closing Date. No Target Company has modified the employment or service terms of any employee or service provider for the purpose of excluding such employee or service provider from full-time status for purposes of PPACA.
(i) Except as set forth on Schedule 4.19(i), the consummation of the transactions contemplated by this AgreementAgreement and the Ancillary Documents will not: (i) entitle any individual to severance pay, unemployment compensation or other benefits or compensation (except as set forth on Schedule 4.19(a)); (ii) accelerate the time of payment or vesting, or increase the amount of any compensation due, or in respect of, any individual; or (iii) result in or satisfy a condition to the payment of compensation that would, in combination with any other payment, result in an “ERISA Affiliateexcess parachute payment” meanswithin the meaning of Section 280G of the Code. No Target Company has incurred any Liability for any Tax imposed under Chapter 43 of the Code or civil liability under Section 502(i) or (l) of ERISA.
(j) All Company Benefit Plans can be terminated at any time prior to the Closing Date without resulting in any Liability to the Surviving Corporation or Purchaser or their respective Affiliates for any additional contributions, penalties, premiums, fees, fines, excise taxes or any other charges or liabilities.
(k) Each Company Benefit Plan that is subject to Section 409A of the Code (each, a “Section 409A Plan”) as of the Closing Date is indicated as such on Schedule 4.19(k). No options or other equity-based awards have been issued or granted by the Company that are, or are subject to, a Section 409A Plan. Each Section 409A Plan has been administered in compliance, and is in documentary compliance, in all material respects, with the applicable provisions of Section 409A of the Code, the regulations thereunder and other official guidance issued thereunder. No Target Company has any obligation to any employee or other service provider with respect to any Person, Section 409A Plan that may be subject to any Person or entity (whether or not incorporated) that is under common control or treated as one employer Tax under Section 4001(b)(1) 409A of ERISA the Code. No payment to be made under any Section 409A Plan is, or to the Knowledge of the Company will be, subject to the penalties of Section 414(b), (c), (m) or (o409A(a)(1) of the Code. There is no Contract or plan to which any Target Company is a party or by which it is bound to compensate any employee, consultant or director for penalty taxes paid pursuant to Section 409A of the Code.
Appears in 1 contract
Sources: Merger Agreement (Pono Capital Corp)
Benefit Plans. As used in this Agreement, (i) Set forth on the term "Benefit Plan" ------------- means each employee benefit plan (as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")), and each other material benefit or compensation plan, program or arrangement, other than any plan, program or arrangement mandated by Law, which is maintained or contributed to by the Parent, the Seller, any DMS Company or any DMS Subsidiary (or to which a DMS Company or a DMS Subsidiary is obligated to contribute) for the benefit of any current or former employee, officer or director of any DMS Company or any DMS Subsidiary. Section 2.2(n) of the Disclosure Schedule 3.19(a) is a true and complete list of lists or describes each material Benefit Plan Plan. The Seller has furnished or made available to the Purchaser an accurate copy of the Purchaser plan document and its Subsidiaries (each, a “Purchaser summary plan description of each Benefit Plan”). With respect to each Purchaser any Benefit Plan that is sponsored solely by the Seller, a DMS Company and/or a DMS Subsidiary (a "Company Plan") and any other Benefit Plan which is a defined benefit plan, there are no funded benefit obligations for which contributions have not been materially made or properly accrued and there are no material unfunded benefit obligations that have not been accounted for by reserves, or otherwise properly footnoted in accordance with GAAP on the Seller has furnished the Purchaser Financialsthe most recent annual report, financial statement and actuarial valuation, if any, with respect to such Company Plan. Except as set forth on Schedule 3.19(a)In addition, neither the Purchaser nor any Subsidiary or has in the past been a member of a “controlled group” for purposes of Section 414(b), (c), (m) or (o) of the Code other than with the Purchaser or another Subsidiary, nor does the Purchaser or any Subsidiary have any Liability with respect to any collectively-bargained for plansCompany Plan, whether the Seller has furnished to Purchaser the trust agreement, the insurance contract or other funding arrangement or agreement, or material employee communications and, where applicable, the IRS determination letter. Except as specified in Section 2.2(n) of the Disclosure Schedule, or as would not subject reasonably be expected to have a Material Adverse Effect:
(i) neither the provisions Parent nor any member of ERISA.the Parent's "controlled group", within the meaning of Sections 414(b) and (c) of the Code, has incurred any direct or indirect liability under ERISA or the Code in connection with the termination of, withdrawal from or failure to fund any Benefit Plan that could result in liability to a DMS Company or a DMS Subsidiary, and no event has occurred that could reasonably be expected to give rise to such liability;
(ii) Each Purchaser Benefit Plan none of the Company Plans provides for payment of a benefit, the increase of a benefit amount, the payment of a contingent benefit or the acceleration of the payment or vesting of a benefit by reason of the execution of this Agreement or the consummation of the transactions contemplated by this Agreement;
(iii) no acceleration of the vesting schedule for any property that is substantially unvested within the meaning of the regulations under Section 83 of the Internal Revenue Code of 1986, as amended (the "Code"), will occur in all material respects is and connection with the transactions contemplated by this Agreement;
(iv) there are no pending, threatened, or to the knowledge of the Seller, anticipated claims relating to any Company Plan, other than routine claims for benefits;
(v) each of the Company Plans has been operated and maintained in compliance accordance with all its terms and with the requirements of applicable Laws in all material respects, including ERISA and Law;
(vi) none of the Code. Each Purchaser Company Plans is a multiemployer plan within the meaning of Section 3(37) of ERISA;
(vii) each Benefit Plan which is intended to be “"qualified” " within the meaning of Section 401(a) of the Code (i) has been determined by the IRS to be is so qualified (or is based on a prototype plan which and has received a favorable opinion letter) during determination letter from the period from its adoption Internal Revenue Service to such effect, and neither the date Parent nor the Seller is aware of this Agreement and (ii) is funded through a trust exempt from taxation under Section 501(a) of any circumstances likely to result in the Code. To the Knowledge of the Purchaser, no fact exists which could adversely affect the qualified status revocation of such Purchaser Benefit Plans or the exempt status of such trusts.determination letter;
(iii) With respect to each Purchaser Benefit Plan, the Purchaser has made available to the Seller accurate and complete copies, if applicable, of: (i) all Purchaser Benefit Plan documents and agreements and related trust agreements or annuity Contracts (including any amendments, modifications or supplements thereto); (ii) all summary plan descriptions and material modifications thereto; (iii) the three (3) most recent Forms 5500, if applicable, and annual report, including all schedules thereto; (iv) the most recent annual and periodic accounting of plan assets; (v) the three (3) most recent nondiscrimination testing reports; (vi) the most recent determination letter received from the IRS, if any; (vii) the most recent actuarial valuation; and (viii) all material written communications between the Purchaser contributions required to be made by any DMS Company or any DMS Subsidiary or any Purchaser to each Benefit Plan have been timely made, and any Governmental Authority and relating to a Purchaser Benefit Plan within six (6) years preceding all contributions that have accrued but are not yet due are reflected on the date of this Agreement.Closing Date Balance Sheet;
(ivix) With respect to each Purchaser Benefit Plan: (i) such Purchaser no Benefit Plan has been administered and enforced in all material respects in accordance with its terms, any "amount of unfunded benefit liability" within the Code and meaning of Section 4001(a)(18) of ERISA; ;
(iix) neither the Purchaser Seller nor any Subsidiary nor DMS Company, DMS Subsidiary, or any employee, officer or director thereof that Affiliate of the Seller is a fiduciary party to any agreement or arrangement that would result separately or in the aggregate in the payment of any "excess parachute payments" within the meaning of Section 280G of the Code;
(under ERISAxi) none of the DMS Companies nor the DMS Subsidiaries has any obligations for, or any liabilities with respect to such Purchaser Benefit Plan has breached any of its fiduciary responsibilitiesto, obligations post-employment medical, life, or duties imposed on it by ERISA; (iii) no Action is pending or threatened in writing (other than routine claims similar welfare benefits except for benefits arising in the ordinary course of administration); (iv) nothing has occurred with respect required to any Purchaser Benefit Plan that has subjected the Purchaser or any Subsidiary to any material penalty be provided under Section 502 of ERISA or Section 4975 4980B of the Code; and (v) all contributions and premiums due through the Closing Date have been made in all material respects as required under ERISA or have been fully accrued in all material respects on the Purchaser Financials.and
(vxii) No Purchaser Benefit Plan is, and neither the Purchaser no payments or benefits under any Subsidiary or any of their respective ERISA Affiliates sponsors, maintains, contributes to, is required to contribute to, or otherwise has or could reasonably be expected to have any current or contingent Liability under or with respect to, a “defined benefit plan” (as defined in Section 414(j) of the Code), a “multiemployer plan” (as defined in Section 3(37) of ERISA) or a “multiple employer plan” (as described in Section 413(c) of the Code) or is otherwise subject to Title IV of ERISA or Section 412 of the Code. To the Purchaser’s Knowledge, no Purchaser Benefit Plan will become a multiple employer plan with respect be subject to any Purchaser Entity immediately after the Closing Date. Neither the Purchaser nor any Subsidiary currently maintains or has ever maintained, or is required currently or has ever been required to contribute to or otherwise participate in, a multiple employer welfare arrangement or voluntary employees’ beneficiary association as defined in deduction limits of Section 501(c)(9) of the Code. For purposes of this Agreement, “ERISA Affiliate” means, with respect to any Person, any Person or entity (whether or not incorporated) that is under common control or treated as one employer under Section 4001(b)(1) of ERISA or Section 414(b), (c), (m) or (o162(m) of the Code.
Appears in 1 contract
Benefit Plans. (i) Set forth on Schedule 3.19(aSection 3.2(j)(i) is of the Cousins Disclosure Letter contains a true true, complete and complete correct list of each material Benefit Plan sponsored, maintained or contributed by Cousins or any of the Purchaser and its Subsidiaries, or which Cousins or any of its Subsidiaries is obligated to sponsor, maintain or contribute to, other than any plan or program maintained by a Governmental Entity to which Cousins or its Subsidiaries contribute pursuant to applicable Law (each, a the “Purchaser Cousins Benefit PlanPlans”). With respect to each Purchaser No Cousins Benefit Plan, there are no funded benefit obligations for which contributions have not been materially made Plan is established or properly accrued and there are no material unfunded benefit obligations that have not been accounted for by reserves, or otherwise properly footnoted in accordance with GAAP on the Purchaser Financials. Except as set forth on Schedule 3.19(a), neither the Purchaser nor any Subsidiary or has in the past been a member of a “controlled group” for purposes of Section 414(b), (c), (m) or (o) maintained outside of the Code other than with United States or for the Purchaser benefit of current or another Subsidiary, nor does the Purchaser former employees of Cousins or any Subsidiary have any Liability with respect to any collectively-bargained for plans, whether or not subject to of its Subsidiaries residing outside of the provisions of ERISAUnited States.
(ii) Each Purchaser Cousins has delivered or made available to Parkway a true, correct and complete copy of each Cousins Benefit Plan and, with respect thereto, if applicable, (A) all amendments, trust (or other funding vehicle) agreements, summary plan descriptions and insurance contracts, (B) the most recent annual report (Form 5500 series including, where applicable, all schedules and actuarial and accountants’ reports) filed with the IRS and the most recent actuarial report or other financial statement relating to such Cousins Benefit Plan, (C) the most recent determination or opinion letter from the IRS for such Cousins Benefit Plan and (D) any notice to or from the IRS or any office or representative of the Department of Labor relating to any unresolved compliance issues in all material respects is and respect of such Cousins Benefit Plan.
(iii) Except as would not have, or would not reasonably be expected to have, individually or in the aggregate, a Cousins Material Adverse Effect, (A) each Cousins Benefit Plan has been operated maintained and administered in compliance with all its terms and with applicable Laws in all material respectsLaw, including ERISA and the Code. Each Purchaser Code and in each case the regulations thereunder, (B) each Cousins Benefit Plan which is intended to be “qualified” within the meaning of under Section 401(a) of the Code (i) has been determined by the IRS to be so qualified (or is based on a prototype plan which has received a favorable determination or opinion letter) during letter as to its qualification from the period from IRS or is entitled to rely on an advisory or opinion letter as to its adoption qualification issued with respect to the date of this Agreement an IRS approved master and (ii) is funded through a trust exempt from taxation under Section 501(a) of the Code. To the Knowledge of the Purchaserprototype or volume submitter plan, and there are no fact exists which could existing circumstances or any events that have occurred that would reasonably be expected to adversely affect the qualified status Table of Contents of any such Purchaser Benefit Plans plan, (C) neither Cousins nor its Subsidiaries has engaged in a transaction that has resulted in, or could result in, the exempt status assessment of such trusts.
a civil penalty upon Cousins or any of its Subsidiaries pursuant to Section 502(i) of ERISA or a tax imposed pursuant to Section 4975 or 4976 of the Code that has not been satisfied in full, (iiiD) With there does not now exist, nor do any circumstances exist that would reasonably be expected to result in, any Controlled Group Liability that would be a liability of Cousins or any of its Subsidiaries, (E) all payments required to be made by or with respect to each Purchaser Benefit Plan, the Purchaser has made available to the Seller accurate and complete copies, if applicable, of: (i) all Purchaser Cousins Benefit Plan documents and agreements and related trust agreements or annuity Contracts (including any amendmentsall contributions, modifications insurance premiums or supplements thereto); (ii) all summary plan descriptions and material modifications thereto; (iii) the three (3) most recent Forms 5500, if applicable, and annual report, including all schedules thereto; (iv) the most recent annual and periodic accounting of plan assets; (v) the three (3) most recent nondiscrimination testing reports; (vi) the most recent determination letter received from the IRS, if any; (vii) the most recent actuarial valuation; and (viii) all material written communications between the Purchaser or any Subsidiary or any Purchaser Benefit Plan and any Governmental Authority and relating to a Purchaser Benefit Plan within six (6) years preceding the date of this Agreement.
(iv) With respect to each Purchaser Benefit Plan: (i) such Purchaser Benefit Plan has been administered and enforced in all material respects in accordance with its terms, the Code and ERISA; (ii) neither the Purchaser nor any Subsidiary nor any employee, officer or director thereof that is a fiduciary (under ERISAintercompany charges) with respect to such Purchaser all prior periods have been timely made or paid by Cousins or its Subsidiaries in accordance with the provisions of each of the Cousins Benefit Plans and applicable Law and (F) there are no pending or, to Cousins’s knowledge, threatened claims by or on behalf of any Cousins Benefit Plan, by any employee or beneficiary covered under any Cousins Benefit Plan has breached or otherwise involving any of its fiduciary responsibilities, obligations or duties imposed on it by ERISA; (iii) no Action is pending or threatened in writing Cousins Benefit Plan (other than routine claims for benefits arising in the ordinary course of administrationbenefits); (iv) nothing has occurred with respect to any Purchaser Benefit Plan that has subjected the Purchaser or any Subsidiary to any material penalty under Section 502 of ERISA or Section 4975 of the Code; and (v) all contributions and premiums due through the Closing Date have been made in all material respects as required under ERISA or have been fully accrued in all material respects on the Purchaser Financials.
(v) No Purchaser Benefit Plan is, and neither the Purchaser or any Subsidiary or any of their respective ERISA Affiliates sponsors, maintains, contributes to, is required to contribute to, or otherwise has or could reasonably be expected to have any current or contingent Liability under or with respect to, a “defined benefit plan” (as defined in Section 414(j) of the Code), a “multiemployer plan” (as defined in Section 3(37) of ERISA) or a “multiple employer plan” (as described in Section 413(c) of the Code) or is otherwise subject to Title IV of ERISA or Section 412 of the Code. To the Purchaser’s Knowledge, no Purchaser Benefit Plan will become a multiple employer plan with respect to any Purchaser Entity immediately after the Closing Date. Neither the Purchaser nor any Subsidiary currently maintains or has ever maintained, or is required currently or has ever been required to contribute to or otherwise participate in, a multiple employer welfare arrangement or voluntary employees’ beneficiary association as defined in Section 501(c)(9) of the Code. For purposes of this Agreement, “ERISA Affiliate” means, with respect to any Person, any Person or entity (whether or not incorporated) that is under common control or treated as one employer under Section 4001(b)(1) of ERISA or Section 414(b), (c), (m) or (o) of the Code.
Appears in 1 contract
Benefit Plans. (ia) Set The Company Disclosure Letter sets forth on Schedule 3.19(a) is a true complete and complete correct list of each material Benefit Plan all employee benefit plans, as defined in Section 3(3) of the Purchaser Employee Retirement Income Security Act of 1974, as amended ("ERISA"), and its Subsidiaries all employment, compensation, bonus, stock option, stock purchase, restricted stock, incentive, deferred compensation, profit sharing, retiree medical or life insurance, split dollar insurance, supplemental retirement, severance, change of control, loans or other benefit plans, programs, arrangements or fringe benefits, in each case, which are provided, maintained, contributed to or sponsored by the Company, or for which the Company has any liability, contingent or otherwise (eachcollectively, a “Purchaser the "Company Benefit Plan”Plans"). .
(b) With respect to each Purchaser Company Benefit Plan, there are no funded benefit obligations for which contributions the Company has furnished Parent with a complete and accurate copy of the plan document or other governing contract. The Company Benefit Plans have not been materially made or properly accrued operated and there are no material unfunded benefit obligations that have not been accounted for by reserves, or otherwise properly footnoted administered in accordance with GAAP on their terms and the Purchaser Financials. Except as set forth on Schedule 3.19(a), neither the Purchaser nor any Subsidiary or has in the past been a member of a “controlled group” for purposes of Section 414(b), (c), (m) or (o) applicable requirements of the Code other than with and applicable Law. There are no pending or, to the Purchaser knowledge of the Company, threatened suits, audits, examinations, actions, litigation or another Subsidiary, nor does claims (excluding claims for benefits incurred in the Purchaser or any Subsidiary have any Liability ordinary course) with respect to any collectively-bargained for plans, whether or not subject of the Company Benefit Plans which could reasonably be expected to the provisions of ERISAresult in a Company Material Adverse Effect.
(iic) Each Purchaser No Company Benefit Plan in all material respects is and has been operated in compliance with all applicable Laws in all material respects, including ERISA and the Code. Each Purchaser Benefit Plan which is intended to be “"qualified” " within the meaning of Section 401(a) of the Code (i) has been determined by the IRS to be so qualified (or is based on a prototype plan which has received a favorable opinion letter) during the period from its adoption to the date of this Agreement and (ii) is funded through a trust exempt from taxation under Section 501(a) of the Code. To the Knowledge of the Purchaser, no fact exists which could adversely affect the qualified status of such Purchaser Benefit Plans or the exempt status of such trusts.
(iii) With respect to each Purchaser Benefit Plan, the Purchaser has made available to the Seller accurate and complete copies, if applicable, of: (i) all Purchaser Benefit Plan documents and agreements and related trust agreements or annuity Contracts (including any amendments, modifications or supplements thereto); (ii) all summary plan descriptions and material modifications thereto; (iii) the three (3) most recent Forms 5500, if applicable, and annual report, including all schedules thereto; (iv) the most recent annual and periodic accounting of plan assets; (v) the three (3) most recent nondiscrimination testing reports; (vi) the most recent determination letter received from the IRS, if any; (vii) the most recent actuarial valuation; and (viii) all material written communications between the Purchaser or any Subsidiary or any Purchaser Benefit Plan and any Governmental Authority and relating to a Purchaser Benefit Plan within six (6) years preceding the date of this Agreement.
(iv) With respect to each Purchaser Benefit Plan: (i) such Purchaser Benefit Plan has been administered and enforced in all material respects in accordance with its terms, the Code and ERISA; (ii) neither the Purchaser nor any Subsidiary nor any employee, officer or director thereof that is a fiduciary (under ERISA) with respect to such Purchaser Benefit Plan has breached any of its fiduciary responsibilities, obligations or duties imposed on it by ERISA; (iii) no Action is pending or threatened in writing (other than routine claims for benefits arising in the ordinary course of administration); (iv) nothing has occurred with respect to any Purchaser Benefit Plan that has subjected the Purchaser or any Subsidiary to any material penalty under Section 502 of ERISA or Section 4975 of the Code; and (v) all contributions and premiums due through the Closing Date have been made in all material respects as required under ERISA or have been fully accrued in all material respects on the Purchaser Financials.
(v) No Purchaser Benefit Plan is, and neither the Purchaser or any Subsidiary or any of their respective ERISA Affiliates sponsors, maintains, contributes to, is required to contribute to, or otherwise has or could reasonably be expected to have any current or contingent Liability under or with respect to, a “defined benefit plan” (as defined in Section 414(j) of the Code), a “multiemployer plan” (as defined in Section 3(37) of ERISA) or a “multiple employer plan” (as described in Section 413(c) of the Code) or is otherwise subject to Title IV of ERISA or Section 412 of the Code. To the Purchaser’s Knowledge, no Purchaser Benefit Plan will become a multiple employer plan with respect to any Purchaser Entity immediately after the Closing Date. Neither the Purchaser Company nor any Subsidiary currently maintains trade or has ever maintained, or is required currently or has ever been required to contribute to or otherwise participate in, a multiple employer welfare arrangement or voluntary employees’ beneficiary association as defined in Section 501(c)(9) of the Code. For purposes of this Agreement, “ERISA Affiliate” means, with respect to any Person, any Person or entity business (whether or not incorporated) that which is under common control or has ever been treated as one a single employer with the Company under Section 4001(b)(1) of ERISA or Section 414(b), (c), (m) or (o) of the Code, has incurred any liability under Title IV of ERISA or Section 412 of the Code.
(d) The execution and delivery by the Company of each Transaction Agreement to which it is a party do not, and the consummation of the Merger and the other Transactions and compliance with the terms hereof will not (i) entitle any employee, officer or member of the Company or USPGI to any severance pay, bonus payment, finders fee, "change of control" payment or similar payment, (ii) accelerate the time of payment or vesting or trigger any payment or funding (through a grantor trust or otherwise) of compensation or benefits under, increase the amount payable or trigger any other material obligation pursuant to, any Company Benefit Plan or (iii) result in any breach or violation of, or a default under, any Company Benefit Plan.
Appears in 1 contract
Benefit Plans. (ia) Set forth on Schedule 3.19(a4.19(a) is a true and complete list of each material Benefit Plan of the Purchaser and its Subsidiaries a Target Company (each, a “Purchaser Company Benefit Plan”). With respect to each Purchaser Company Benefit Plan, there all contributions, deferrals, premiums and benefit payments under or in connection therewith that are no funded benefit obligations for which contributions required to have not been materially made as of the Closing Date will have been made or properly accrued and there are no material unfunded benefit obligations that have not been accounted for by reserves, or otherwise properly footnoted in accordance with GAAP on the Purchaser Company Financials. Except as set forth on Schedule 3.19(a), neither the Purchaser nor any Subsidiary No Target Company is or has in the past been a member of a “controlled group” for purposes of Section 414(b), (c), (m) or (o) of the Code other than with the Purchaser or another SubsidiaryCode, nor does the Purchaser or any Subsidiary Target Company have any Liability with respect to any collectively-bargained for plans, whether or not subject to the provisions of ERISA.
(iib) Each Purchaser Company Benefit Plan in all material respects is and has been operated at all times in compliance with all applicable Laws in all material respects, including ERISA and the Code. Each Purchaser Company Benefit Plan which is intended to be “qualified” within the meaning of Section 401(a) of the Code (i) has been determined by the IRS to be so qualified (or is based on a prototype or volume submitter plan which has received a favorable opinion letter) during the period from its adoption to the date of this Agreement and (ii) is funded through a its related trust has been determined to be exempt from taxation under Section 501(a) of the CodeCode or the Target Companies have requested an initial favorable IRS determination of qualification and/or exemption within the period permitted by applicable Law. To the Knowledge of the Purchaser, no No fact exists which could adversely affect the qualified status of such Purchaser Company Benefit Plans or the exempt status of such trusts.
(iiic) With respect to each Purchaser Company Benefit PlanPlan which covers any current or former officer, director, consultant or employee (or beneficiary thereof) of a Target Company, the Company has provided to Purchaser has made available to the Seller accurate and complete copies, if applicable, of: (i) all Purchaser Company Benefit Plan documents and agreements and related trust agreements or annuity Contracts (including any amendments, modifications or supplements thereto); (ii) all current summary plan descriptions and subsequent material modifications thereto; (iii) the three (3) most recent Forms 5500, if applicable, and annual report, including all schedules thereto; (iv) the most recent annual and periodic accounting of plan assets; (v) the three (3) most recent nondiscrimination testing reports; (vi) the most recent determination letter received from the IRS, if any; (vii) the most recent actuarial valuation; and (viii) all material written non-routine communications between the Purchaser or any Subsidiary or any Purchaser Benefit Plan and with any Governmental Authority and relating to a Purchaser Benefit Plan within six (6) years preceding the date of this AgreementAuthority.
(ivd) With respect to each Purchaser Company Benefit Plan: (i) such Purchaser Company Benefit Plan has been administered and enforced in all material respects in accordance with its terms, the Code and ERISA; (ii) neither the Purchaser nor any Subsidiary nor any employee, officer or director thereof that is a no breach of fiduciary (under ERISA) with respect to such Purchaser Benefit Plan duty has breached any of its fiduciary responsibilities, obligations or duties imposed on it by ERISAoccurred; (iii) no Action is pending pending, or to the Company’s Knowledge, threatened in writing (other than routine claims for benefits arising in the ordinary course of administration); (iv) nothing has occurred with respect to any Purchaser Benefit Plan that has subjected the Purchaser or any Subsidiary to any material penalty under no prohibited transaction, as defined in Section 502 406 of ERISA or Section 4975 of the Code, has occurred, excluding transactions effected pursuant to a statutory or administration exemption; and (v) all contributions and premiums due through the Closing Date have been made in all material respects as required under ERISA or have been fully accrued in all material respects on the Purchaser Company Financials.
(ve) No Purchaser Company Benefit Plan is, and neither the Purchaser or any Subsidiary or any of their respective ERISA Affiliates sponsors, maintains, contributes to, is required to contribute to, or otherwise has or could reasonably be expected to have any current or contingent Liability under or with respect to, a “defined benefit plan” (as defined in Section 414(j) of the Code), a “multiemployer plan” (as defined in Section 3(37) of ERISA) or a “multiple employer plan” (as described in Section 413(c) of the Code) or is otherwise subject to Title IV of ERISA or Section 412 of the Code, and no Target Company has incurred any Liability or otherwise could have any Liability, contingent or otherwise, under Title IV of ERISA and no condition presently exists that is expected to cause such Liability to be incurred. To the Purchaser’s Knowledge, no Purchaser No Company Benefit Plan will become a multiple employer plan with respect to any Purchaser Entity Target Company immediately after the Closing Date. Neither the Purchaser nor any Subsidiary No Target Company currently maintains or has ever maintained, or is required currently or has ever been required to contribute to or otherwise participate in, a multiple employer welfare arrangement or voluntary employees’ beneficiary association as defined in Section 501(c)(9) of the Code. For purposes of this Agreement, “ERISA Affiliate” means, .
(f) There is no arrangement under any Company Benefit Plan with respect to any Personemployee that would result in the payment of any amount that by operation of Sections 280G or 162(m) of the Code would not be deductible by the Target Companies and no arrangement exists pursuant to which a Target Company will be required to “gross up” or otherwise compensate any person because of the imposition of any excise tax on a payment to such person.
(g) With respect to each Company Benefit Plan which is a “welfare plan” (as described in Section 3(1) of ERISA): (i) except as set forth on Schedule 4.19(g), no such plan provides medical or death benefits with respect to current or former employees of a Target Company beyond their termination of employment (other than coverage mandated by Law, which is paid solely by such employees); and (ii) there are no reserves, assets, surplus or prepaid premiums under any such plan. Each Target Company has complied in all material respects with the provisions of Section 601 et seq. of ERISA and Section 4980B of the Code.
(h) Except as set forth on Schedule 4.19(h), the consummation of the transactions contemplated by this Agreement and the Ancillary Documents will not: (i) entitle any individual to severance pay, unemployment compensation or other benefits or compensation; (ii) accelerate the time of payment or vesting, or increase the amount of any compensation due, or in respect of, any Person individual; or entity (whether iii) result in or not incorporated) satisfy a condition to the payment of compensation that is would, in combination with any other payment, result in an “excess parachute payment” within the meaning of Section 280G of the Code. No Target Company has incurred any Liability for any Tax imposed under common control Chapter 43 of the Code or treated as one employer civil liability under Section 4001(b)(1) of ERISA or Section 414(b), (c), (m502(i) or (ol) of ERISA.
(i) Except as set forth on Schedule 4.19(i), except to the extent required by Section 4980B of the Code or similar state Law, no Target Company provides health or welfare benefits to any former or retired employee or is obligated to provide such benefits to any active employee following such employee’s retirement or other termination of employment or service.
(j) Each Company Benefit Plan that is subject to Section 409A of the Code (each, a “Section 409A Plan”) as of the Closing Date is indicated as such on Schedule 4.19(j). No Company Options or other equity-based awards have been issued or granted by the Company that are, or are subject to, a Section 409A Plan. Each Section 409A Plan has been administered in compliance, and is in documentary compliance, in all material respects, with the applicable provisions of Section 409A of the Code, the regulations thereunder and other official guidance issued thereunder. No Target Company has any obligation to any employee or other service provider with respect to any Section 409A Plan that may be subject to any Tax under Section 409A of the Code. No payment to be made under any Section 409A Plan is, or to the Knowledge of the Company will be, subject to the penalties of Section 409A(a)(1) of the Code. There is no Contract or plan to which any Target Company is a party or by which it is bound to compensate any employee, consultant or director for penalty taxes paid pursuant to Section 409A of the Code.
Appears in 1 contract
Benefit Plans. (ia) Set Each "employee pension benefit plan" (as defined in Section 3(2) of the Employee Retirement Income Security Act of 1974, as amended 20 25 ("ERISA")) (a "Pension Plan"), "employee welfare benefit plan" (as defined in Section 3(1) of ERISA) (a "Welfare Plan") and each other plan, pension or welfare arrangement or policy (written or oral) relating to stock options, stock purchases, compensation, deferred compensation, bonuses, severance, fringe benefits or other employee benefits, in each case maintained or contributed to, or required to be maintained or contributed to, by the Company for the benefit of any present or former employee, officer or director (each of the foregoing, a "Benefit Plan") has been administered in all material respects in accordance with its terms. The Company and all the Benefit Plans are in compliance in all material respects with the applicable provisions of ERISA, the Code and all other applicable laws.
(b) Schedule 4.10 of the Company Disclosure Schedule sets forth on Schedule 3.19(a) is a true and complete list of each material Benefit Plan as well as each employment, termination, indemnity, consulting and severance agreement and any and all other contracts, binding arrangements and understandings (whether written or oral) with any present or former directors, officers, employees or consultants of the Purchaser Company.
(c) None of the Pension Plans is subject to Title IV of ERISA or Section 412 of the Code and its Subsidiaries none of the Company or any other person or entity that, together with the Company, is treated as a single employer under Section 414 (each, a “Purchaser Benefit Plan”). With respect to each Purchaser Benefit Plan, there are no funded benefit obligations for which contributions have not been materially made or properly accrued and there are no material unfunded benefit obligations that have not been accounted for by reserves, or otherwise properly footnoted in accordance with GAAP on the Purchaser Financials. Except as set forth on Schedule 3.19(a), neither the Purchaser nor any Subsidiary or has in the past been a member of a “controlled group” for purposes of Section 414(bb), (c), (m) or (o) of the Code other than with the Purchaser or another Subsidiary, nor does the Purchaser or any Subsidiary have any Liability with respect to any collectively-bargained for plans, whether or not subject to the provisions of ERISA.
(ii) Each Purchaser Benefit Plan in all material respects is and has been operated in compliance with all applicable Laws in all material respectseach, including ERISA and the Code. Each Purchaser Benefit Plan which is intended to be “qualified” within the meaning of Section 401(a) of the Code Company, a "Commonly Controlled Entity"): (i) currently has been determined by the IRS to be so qualified (or is based on a prototype plan which has received a favorable opinion letter) during the period from its adoption to the date of this Agreement and (ii) is funded through a trust exempt from taxation under Section 501(a) of the Code. To the Knowledge of the Purchaser, no fact exists which could adversely affect the qualified status of such Purchaser Benefit Plans or the exempt status of such trusts.
(iii) With respect to each Purchaser Benefit Plan, the Purchaser has made available to the Seller accurate and complete copies, if applicable, of: (i) all Purchaser Benefit Plan documents and agreements and related trust agreements or annuity Contracts (including any amendments, modifications or supplements thereto); (ii) all summary plan descriptions and material modifications thereto; (iii) the three (3) most recent Forms 5500, if applicable, and annual report, including all schedules thereto; (iv) the most recent annual and periodic accounting of plan assets; (v) the three (3) most recent nondiscrimination testing reports; (vi) the most recent determination letter received from the IRS, if any; (vii) the most recent actuarial valuation; and (viii) all material written communications between the Purchaser or any Subsidiary or any Purchaser Benefit Plan and any Governmental Authority and relating to a Purchaser Benefit Plan within six (6) years preceding the date of this Agreement.
(iv) With respect to each Purchaser Benefit Plan: (i) such Purchaser Benefit Plan has been administered and enforced in all material respects in accordance with its terms, the Code and ERISA; (ii) neither the Purchaser nor any Subsidiary nor any employee, officer or director thereof that is a fiduciary (under ERISA) with respect to such Purchaser Benefit Plan has breached any of its fiduciary responsibilities, obligations or duties imposed on it by ERISA; (iii) no Action is pending or threatened in writing (other than routine claims for benefits arising in the ordinary course of administration); (iv) nothing has occurred with respect to any Purchaser Benefit Plan that has subjected the Purchaser or any Subsidiary to any material penalty under Section 502 of ERISA or Section 4975 of the Code; and (v) all contributions and premiums due through the Closing Date have been made in all material respects as required under ERISA or have been fully accrued in all material respects on the Purchaser Financials.
(v) No Purchaser Benefit Plan is, and neither the Purchaser or any Subsidiary or any of their respective ERISA Affiliates sponsors, maintains, contributes to, is required an obligation to contribute to, or otherwise has or could reasonably be expected during any time during the last six years had an obligation to have any current or contingent Liability under or with respect contribute to, a “defined benefit plan” (as defined in Section 414(j) of the Code), a “multiemployer plan” (as defined in Section 3(37) of ERISA) or a “multiple employer plan” (as described in Section 413(c) of the Code) or is otherwise Pension Plan subject to Title IV of ERISA or Section 412 of the Code, or (ii) has incurred any liability to the Pension Benefit Guaranty Corporation, which liability has not been fully paid. To All contributions and other payments required to be made by the Purchaser’s Knowledge, no Purchaser Benefit Company to any Pension Plan will become a multiple employer plan with respect to any Purchaser Entity immediately after period ending before the Closing Date. Date have been made or reserves adequate for such contributions or other payments have been or will be set aside therefor and have been or will be reflected in financial statements.
(d) Neither the Purchaser Company nor any Subsidiary currently maintains or has ever maintained, or Commonly Controlled Entity is required currently or has ever been required to contribute to or otherwise participate in, a multiple employer welfare arrangement or voluntary employees’ beneficiary association any "multiemployer plan" (as defined in Section 501(c)(94001(a)(3) of ERISA) or has withdrawn from any multiemployer plan where such withdrawal has resulted or would result in any "withdrawal liability" (within the 21 26 meaning of Section 4201 of ERISA) or "mass withdrawal liability" within the meaning of PBGC Regulation 4219.2 that has not been fully paid.
(e) Except as set forth on Schedule 4.10 of the Company Disclosure Schedule, each Benefit Plan (and its related trust, if any) that is intended to be qualified under Section s 401 and 501(a) of the Code. For purposes Code has been determined by the IRS to qualify under such sections and nothing has occurred to cause the loss of this Agreement, “ERISA Affiliate” means, with respect to any Person, any Person or entity such qualified status.
(whether or not incorporatedf) Each Benefit Plan that is under common control a Welfare Plan may be amended or treated terminated at any time after the Effective Time without material liability to the Company.
(g) Except as one employer set forth on Schedule 4.10 of the Company Disclosure Schedule, or as required under Section 4001(b)(1) of ERISA or Section 414(b), (c), (m) or (o) 4980B of the Code, the Company does not have any obligation to provide post-retirement health benefits.
(h) The Company has heretofore delivered to Parent correct and complete copies of each of the following:
(i) All written, and descriptions of all binding oral, employment, termination, consulting and severance agreements, contracts, arrangements and understandings listed on Schedule 4.10 of the Company Disclosure Schedule;
(ii) Each Benefit Plan and all amendments thereto; the trust instrument and/or insurance contracts, if any, forming a part of such Benefit Plan and all amendments thereto;
(iii) The most recent IRS Form 5500 and all schedules thereto, if any;
(iv) The most recent determination letter issued by the IRS regarding the qualified status of each such Pension Plan;
(v) The most recent accountant's report, if any; and
(vi) The most recent summary plan description, if any.
Appears in 1 contract
Benefit Plans. (ia) Set forth on Schedule 3.19(a4.19(a) is a true and complete list of each material Benefit Plan of the Purchaser and its Subsidiaries a Target Company (each, a “Purchaser Company Benefit Plan”). With respect to each Purchaser Company Benefit Plan, there are no funded benefit obligations for which contributions have not been materially made or properly accrued and there are no material unfunded benefit obligations that have not been accounted for by reserves, or otherwise properly footnoted in accordance with GAAP on the Purchaser Company Financials. Except as set forth on Schedule 3.19(a), neither the Purchaser nor any Subsidiary No Target Company is or has in the past been a member of a “controlled group” for purposes of Section 414(b), (c), (m) or (o) of the Code other than with the Purchaser or another SubsidiaryCode, nor does the Purchaser or any Subsidiary Target Company have any Liability with respect to any collectively-bargained for plans, whether or not subject to the provisions of ERISA. No statement, either written or oral, has been made by any Target Company to any Person with regard to any Company Benefit Plan that was not in accordance with the Company Benefit Plan in any material respect.
(iib) Each Purchaser Company Benefit Plan in all material respects is and has been operated at all times in compliance with all applicable Laws in all material respects, including ERISA and the Code. Each Purchaser Company Benefit Plan which is intended to be “qualified” within the meaning of Section 401(a) of the Code (i) has been determined by the IRS to be so qualified (or is based on a prototype plan which has received a favorable opinion letter) during the period from its adoption to the date of this Agreement and (ii) is funded through a its related trust has been determined to be exempt from taxation under Section 501(a) of the CodeCode or the Target Companies have requested an initial favorable IRS determination of qualification and/or exemption within the period permitted by applicable Law. To the Knowledge of the PurchaserCompany, no fact exists which reasonable could be expected to adversely affect the qualified status of such Purchaser Company Benefit Plans or the exempt status of such trusts.
(iiic) With respect to each Purchaser Company Benefit PlanPlan which covers any current or former officer, director, consultant or employee (or beneficiary thereof) of a Target Company, the Company has provided to Purchaser has made available to the Seller accurate and complete copies, if applicable, of: (i) the currently effective versions of all Purchaser Company Benefit Plan documents texts and agreements and related trust agreements or annuity Contracts (including any amendments, modifications or supplements thereto); (ii) the currently effective versions of all summary plan descriptions and material modifications thereto; (iii) the three (3) most recent Forms Form 5500, if applicable, and annual report, including all schedules thereto; (iv) the most recent annual and periodic accounting of plan assets; (v) the three (3) most recent nondiscrimination testing reports; (vi) the most recent determination letter received from the IRS, if any; (vii) the most recent actuarial valuation; and (viii) all material written communications between the Purchaser or any Subsidiary or any Purchaser Benefit Plan and with any Governmental Authority and relating to a Purchaser Benefit Plan Authority, within six the last three (63) years preceding the date of this Agreementyears.
(ivd) With To the Knowledge of the Company, with respect to each Purchaser Company Benefit Plan: (i) such Purchaser Company Benefit Plan has been administered and enforced in all material respects in accordance with its terms, the Code and ERISA; (ii) neither the Purchaser nor any Subsidiary nor any employee, officer or director thereof that is a no breach of fiduciary (under ERISA) with respect to such Purchaser Benefit Plan duty has breached any of its fiduciary responsibilities, obligations or duties imposed on it by ERISAoccurred; (iii) no Action is pending pending, or to the Company’s Knowledge, threatened in writing (other than routine claims for benefits arising in the ordinary course of administration); (iv) nothing has occurred with respect to any Purchaser Benefit Plan that has subjected the Purchaser or any Subsidiary to any material penalty under no prohibited transaction, as defined in Section 502 406 of ERISA or Section 4975 of the Code, has occurred, excluding transactions effected pursuant to a statutory or administration exemption; and (v) all contributions and premiums due through the Closing Date have been made in all material respects as required under ERISA or have been fully accrued in all material respects on the Purchaser Company Financials.
(ve) No Purchaser Company Benefit Plan is, and neither the Purchaser or any Subsidiary or any of their respective ERISA Affiliates sponsors, maintains, contributes to, is required to contribute to, or otherwise has or could reasonably be expected to have any current or contingent Liability under or with respect to, a “defined benefit plan” (as defined in Section 414(j) of the Code), a “multiemployer plan” (as defined in Section 3(37) of ERISA) or a “multiple employer plan” (as described in Section 413(c) of the Code) or is otherwise subject to Title IV of ERISA or Section 412 of the Code, and no Target Company has incurred any Liability or otherwise could have any Liability, contingent or otherwise, under Title IV of ERISA and no condition presently exists that is expected to cause such Liability to be incurred. To the Purchaser’s Knowledge, no Purchaser No Company Benefit Plan will become a multiple employer plan with respect to any Purchaser Entity Target Company immediately after the Closing Date. Neither the Purchaser nor any Subsidiary No Target Company currently maintains or has ever maintained, or is required currently or has ever been required to contribute to or otherwise participate in, a multiple employer welfare arrangement or voluntary employees’ beneficiary association as defined in Section 501(c)(9) of the Code. For purposes of this Agreement, “ERISA Affiliate” means, .
(f) There is no arrangement under any Company Benefit Plan with respect to any Personemployee that would result in the payment of any amount that by operation of Sections 280G or 162(m) of the Code would not be deductible by the Target Companies and no arrangement exists pursuant to which a Target Company will be required to “gross up” or otherwise compensate any person because of the imposition of any excise tax on a payment to such person.
(g) With respect to each Company Benefit Plan which is a “welfare plan” (as described in Section 3(1) of ERISA): (i) no such plan provides medical or death benefits with respect to current or former employees of a Target Company beyond their termination of employment (other than coverage mandated by Law); and (ii) there are no reserves, assets, surplus or prepaid premiums under any such plan. To the Knowledge of the Company, each Target Company has complied with the provisions of Section 601 et seq. of ERISA and Section 4980B of the Code.
(h) The consummation of the transactions contemplated by this Agreement and the Ancillary Documents will not: (i) entitle any individual to severance pay, unemployment compensation or other benefits or compensation; (ii) accelerate the time of payment or vesting, or increase the amount of any compensation due, or in respect of, any Person individual; or entity (whether iii) result in or not incorporated) satisfy a condition to the payment of compensation that is would, in combination with any other payment, result in an “excess parachute payment” within the meaning of Section 280G of the Code. No Target Company has incurred any Liability for any Tax imposed under common control Chapter 43 of the Code or treated as one employer civil liability under Section 4001(b)(1) of ERISA or Section 414(b), (c), (m502(i) or (ol) of ERISA.
(i) Except to the extent required by Section 4980B of the Code or similar state Law, no Target Company provides health or welfare benefits to any former or retired employee or is obligated to provide such benefits to any active employee following such employee’s retirement or other termination of employment or service.
(j) All Company Benefit Plans can be terminated at any time as of or after the Closing Date without resulting in any material Liability to the Surviving Corporation or Purchaser or their respective Affiliates for any additional contributions, penalties, premiums, fees, fines, excise taxes or any other charges or liabilities.
(k) Each Company Benefit Plan that is subject to Section 409A of the Code (each, a “Section 409A Plan”) as of the Closing Date is indicated as such on Schedule 4.19(k). No Company Options or other equity-based awards have been issued or granted by the Company that are, or are subject to, a Section 409A Plan. To the Knowledge of the Company, each Section 409A Plan has been administered in compliance, and is in documentary compliance, with the applicable provisions of Section 409A of the Code, the regulations thereunder and other official guidance issued thereunder, and no Target Company has any obligation to any employee or other service provider with respect to any Section 409A Plan that may be subject to any Tax under Section 409A of the Code. No payment to be made under any Section 409A Plan is, or to the Knowledge of the Company will be, subject to the penalties of Section 409A(a)(1) of the Code. There is no Contract or plan to which any Target Company is a party or by which it is bound to compensate any employee, consultant or director for penalty taxes paid pursuant to Section 409A of the Code.
Appears in 1 contract
Benefit Plans. (ia) Set forth on Schedule 3.19(a6.19(a) is a true and complete list of each material Benefit Plan of the Purchaser and its Subsidiaries a Target Company (each, a “Purchaser Company Benefit Plan”). With respect to each Purchaser Company Benefit Plan, there are no funded benefit obligations for which contributions have not been materially made or properly accrued and there are no material unfunded benefit obligations that have not been accounted for by reserves, or otherwise properly footnoted in accordance with GAAP on the Purchaser FinancialsCompany Financial Statements. Except as set forth on Schedule 3.19(a), neither the Purchaser nor any Subsidiary No Target Company is or has in the past been a member of a “controlled group” for purposes of Section 414(b), (c), (m) or (o) of the Code other than with the Purchaser or another SubsidiaryCode, nor does the Purchaser or any Subsidiary Target Company have any Liability with respect to any collectively-bargained for plans, whether or not subject to the provisions of ERISA. No statement, either written or oral, has been made by any Target Company to any Person with regard to any Company Benefit Plan that was not in accordance with the Company Benefit Plan. No Target Company, nor any entity that together with any Target Company is a “single employer” for purposes of Section 4001(b)(1) of ERISA or Sections 414(b), (c), (m) or (o) of the Code, has ever established, maintained, contributed to, or has or had any Liability with respect to (or had an obligation to contribute to) any Benefit Plan that is not a Non-U.S. Benefit Plan.
(iib) Each Purchaser Company Benefit Plan in all material respects is and has been operated at all times in compliance with all applicable Laws in all material respects, including ERISA and the Code. Each Purchaser Benefit Plan which is intended to be “qualified” within the meaning of Section 401(a) of the Code (i) has been determined by the IRS to be so qualified (or is based on a prototype plan which has received a favorable opinion letter) during the period from its adoption to the date of this Agreement and (ii) is funded through a trust exempt from taxation under Section 501(a) of the Code. To the Knowledge of the Purchaser, no fact exists which could adversely affect the qualified status of such Purchaser Benefit Plans or the exempt status of such trusts.
(iiic) With respect to each Purchaser Company Benefit PlanPlan which covers any current or former officer, director, consultant or employee (or beneficiary thereof) of a Target Company, the Company has provided to Purchaser has made available to the Seller accurate and complete copies, if applicable, of: (i) all Purchaser Company Benefit Plan documents texts and agreements and related trust agreements or annuity Contracts (including any amendments, modifications or supplements thereto); (ii) all summary plan descriptions and material modifications thereto; and (iii) the three (3) most recent Forms 5500, if applicable, and annual report, including all schedules thereto; (iv) the most recent annual and periodic accounting of plan assets; (v) the three (3) most recent nondiscrimination testing reports; (vi) the most recent determination letter received from the IRS, if any; (vii) the most recent actuarial valuation; and (viii) all material written communications between the Purchaser or any Subsidiary or any Purchaser Benefit Plan and with any Governmental Authority and relating to a Purchaser Benefit Plan within six (6) years preceding the date of this AgreementAuthority.
(ivd) With respect to each Purchaser Company Benefit Plan: (i) such Purchaser Company Benefit Plan has been administered and enforced in accordance with its terms and the requirements of all applicable Laws, and has been maintained, where required, in good standing in all material respects in accordance with its terms, the Code applicable regulatory authorities and ERISAGovernmental Authorities; (ii) neither the Purchaser nor no breach of fiduciary duty that would result in material Liability to any Subsidiary nor any employee, officer or director thereof that is a fiduciary (under ERISA) with respect to such Purchaser Benefit Plan Target Company has breached any of its fiduciary responsibilities, obligations or duties imposed on it by ERISAoccurred; (iii) no Action is pending pending, or to the Company’s Knowledge, threatened in writing (other than routine claims for benefits arising in the ordinary course of administration); (iv) nothing has occurred with respect to any Purchaser Benefit Plan that has subjected the Purchaser or any Subsidiary to any material penalty under Section 502 of ERISA or Section 4975 of the Code; and (v) all contributions and premiums due through the Closing Date have been made in all material respects as required under ERISA or have been fully accrued in all material respects on the Purchaser Financials.
(ve) No Purchaser Benefit Plan isThe consummation of the transactions contemplated by this Agreement and the Ancillary Documents will not: (i) entitle any individual to severance pay, and neither unemployment compensation or other benefits or compensation; or (ii) accelerate the Purchaser time of payment or any Subsidiary or any of their respective ERISA Affiliates sponsors, maintains, contributes to, is required to contribute tovesting, or otherwise has increase the amount of any compensation due, or could reasonably be expected in respect of, any director, employee or independent contractor of a Target Company.
(f) Except to have the extent required by applicable Law, no Target Company provides health or welfare benefits to any current former or contingent Liability under or with respect to, a “defined benefit plan” (as defined in Section 414(j) of the Code), a “multiemployer plan” (as defined in Section 3(37) of ERISA) or a “multiple employer plan” (as described in Section 413(c) of the Code) retired employee or is otherwise subject obligated to Title IV of ERISA or Section 412 of the Code. To the Purchaser’s Knowledge, no Purchaser Benefit Plan will become a multiple employer plan with respect provide such benefits to any Purchaser Entity immediately after the Closing Date. Neither the Purchaser nor any Subsidiary currently maintains active employee following such employee’s retirement or has ever maintained, other termination of employment or is required currently or has ever been required to contribute to or otherwise participate in, a multiple employer welfare arrangement or voluntary employees’ beneficiary association as defined in Section 501(c)(9) of the Code. For purposes of this Agreement, “ERISA Affiliate” means, with respect to any Person, any Person or entity (whether or not incorporated) that is under common control or treated as one employer under Section 4001(b)(1) of ERISA or Section 414(b), (c), (m) or (o) of the Codeservice.
Appears in 1 contract
Sources: Business Combination Agreement (Tristar Acquisition I Corp.)
Benefit Plans. (ia) Set forth on Part 3.21 of the Company Disclosure Schedule 3.19(a) is contains a true and complete list of each material Benefit Plan stock option, stock purchase, stock ownership, stock appreciation right, phantom stock, life, health, accident or other insurance, bonus, deferred or incentive compensation, severance or separation, profit-sharing, retirement, leave of absence, layoff, vacation, day or dependent care, legal services, cafeteria, disability or other benefit plan, practice, policy or arrangement of any kind, written or oral, provided for the Purchaser and its Subsidiaries Company's employees (each, a “Purchaser Benefit an "Employee Plan”" and, collectively, the "Employee Plans"). With respect For purposes of this Section 3.21, the term "Employee Plan" also includes but is not limited to each Purchaser Benefit Plan, there are no funded benefit obligations for which contributions have not been materially made all present (including those terminated or properly accrued and there are no material unfunded benefit obligations that have not been accounted for by reserves, or otherwise properly footnoted in accordance with GAAP on the Purchaser Financials. Except as set forth on Schedule 3.19(a), neither the Purchaser nor any Subsidiary or has in transferred within the past been a member of a “controlled group” for purposes of Section 414(b), (c), (mtwo years) plans involving the Company providing any benefits to any current or (o) former employee of the Code other than with the Purchaser or another Subsidiary, nor does the Purchaser or any Subsidiary have any Liability with respect to any collectively-bargained for plans, whether or not Company which are subject to the provisions Employee Retirement Income Security Act of 1974, as amended ("ERISA").
(iib) Each Purchaser Benefit Plan in all material respects Neither the Company nor any other person or entity which together with the Company would be considered a single employer under Section 4001(b)(1) of ERISA is and or has been operated in compliance with all applicable Laws in all material respects, including ERISA and the Code. Each Purchaser Benefit Plan which is intended a party to be “qualified” within the meaning of Section 401(a) of the Code (i) or has been determined any employees who are or were covered by the IRS to be so qualified (or is based on a prototype plan which has received a favorable opinion letter) during the period from its adoption to the date of this Agreement and (ii) is funded through a trust exempt from taxation under Section 501(a) of the Code. To the Knowledge of the Purchaser, no fact exists which could adversely affect the qualified status of such Purchaser Benefit Plans or the exempt status of such trusts.
(iii) With respect to each Purchaser Benefit Plan, the Purchaser has made available to the Seller accurate and complete copies, if applicable, of: (i) all Purchaser Benefit Plan documents and agreements and related trust agreements or annuity Contracts (including any amendments, modifications or supplements thereto); (ii) all summary plan descriptions and material modifications thereto; (iii) the three (3) most recent Forms 5500, if applicable, and annual report, including all schedules thereto; (iv) the most recent annual and periodic accounting of plan assets; (v) the three (3) most recent nondiscrimination testing reports; (vi) the most recent determination letter received from the IRS, if any; (vii) the most recent actuarial valuation; and (viii) all material written communications between the Purchaser or any Subsidiary or any Purchaser Benefit Plan and any Governmental Authority and relating to a Purchaser Benefit Plan within six (6) years preceding the date of this Agreement.
(iv) With respect to each Purchaser Benefit Plan: (i) such Purchaser Benefit Plan has been administered and enforced in all material respects in accordance with its terms, the Code and ERISA; (ii) neither the Purchaser nor any Subsidiary nor any employee, officer or director thereof that is a fiduciary (under ERISA) with respect to such Purchaser Benefit Plan has breached any of its fiduciary responsibilities, obligations or duties imposed on it by ERISA; (iii) no Action is pending or threatened in writing (other than routine claims for benefits arising in the ordinary course of administration); (iv) nothing has occurred with respect to any Purchaser Benefit Plan that has subjected the Purchaser or any Subsidiary to any material penalty under Section 502 of ERISA or Section 4975 of the Code; and (v) all contributions and premiums due through the Closing Date have been made in all material respects as required under ERISA or have been fully accrued in all material respects on the Purchaser Financials.
(v) No Purchaser Benefit Plan is, and neither the Purchaser or any Subsidiary or any of their respective ERISA Affiliates sponsors, maintains, contributes to, is required to contribute to, or otherwise has or could reasonably be expected to have any current or contingent Liability under or with respect to, a “defined benefit plan” (plan as defined in Section 414(j3(35) of the Code), a “ERISA or any multiemployer plan” (plan as defined in Section 3(37) of ERISA.
(c) or a “multiple employer plan” Each Employee Plan is now, and has always been, established, maintained and operated in all material respects in accordance with all applicable laws (as described in Section 413(c) of including but not limited to ERISA and the Code, and regulations thereunder) or is otherwise subject to Title IV of ERISA or Section 412 of and in accordance with the Codeplan documents. To the Purchaser’s Knowledge, no Purchaser Benefit Plan will become a multiple employer plan All communications with respect to any Purchaser Entity immediately after Employee Plan by any person acting or purporting to act on behalf of the Closing DateCompany (including the members of any plan committee, all plan fiduciaries, plan administrators, the Company and the Company's employees) accurately reflect, and have always accurately reflected, in all material respects the documents and operations of any Employee Plan. Neither the Purchaser nor There is no unfunded liability for vested or nonvested benefits under any Subsidiary currently maintains or has ever maintainedEmployee Plan. All material reports, or is required currently or has ever been forms and other documents required to contribute to or otherwise participate in, a multiple employer welfare arrangement or voluntary employees’ beneficiary association as defined in Section 501(c)(9) of the Code. For purposes of this Agreement, “ERISA Affiliate” means, be filed with any governmental entity with respect to any PersonEmployee Plan have been timely filed and are accurate. There is no pending or, any Person or entity (whether or not incorporated) that is under common control or treated as one employer under Section 4001(b)(1) of ERISA or Section 414(b), (c), (m) or (o) to the Knowledge of the CodeCompany, Threatened litigation or arbitration concerning or involving any Employee Plan by any person with respect to such Employee Plan.
(d) No complaints, investigations or audits by any governmental entity have been filed or commenced or, to the Knowledge of the Company, have been Threatened with respect to any Employee Plan.
Appears in 1 contract
Sources: Merger Agreement (Immersion Corp)
Benefit Plans. (ia) Set Section 4.22 of the Vendor Disclosure Schedule sets forth on Schedule 3.19(a) is a true and complete list of each material the Benefit Plan of the Purchaser and its Subsidiaries (each, a “Purchaser Benefit Plan”). With respect to each Purchaser Benefit Plan, there are no funded benefit obligations for which contributions have not been materially made or properly accrued and there are no material unfunded benefit obligations that have not been accounted for by reserves, or otherwise properly footnoted in accordance with GAAP on the Purchaser Financials. Except as set forth on Schedule 3.19(a), neither the Purchaser nor any Subsidiary or has in the past been a member of a “controlled group” for purposes of Section 414(b), (c), (m) or (o) of the Code other than with the Purchaser or another Subsidiary, nor does the Purchaser or any Subsidiary have any Liability with respect to any collectively-bargained for plans, whether or not subject to the provisions of ERISAPlans.
(iib) Each Purchaser Benefit Plan in all material respects is and has been operated in compliance with all applicable Laws in all material respects, including ERISA and Neither the Code. Each Purchaser Benefit Plan Vendors nor any entity which is intended to be “qualified” within considered one employer with the meaning Company under Section 4001 of ERISA or Section 401(a) 414 of the Code (ian “ERISA Affiliate”) (x) maintains or contributes to or has been determined by the IRS to be so qualified (or is based on a prototype plan which has received a favorable opinion letter) during the period from its adoption to the date of this Agreement and (ii) is funded through a trust exempt from taxation under Section 501(a) of the Code. To the Knowledge of the Purchaser, no fact exists which could adversely affect the qualified status of such Purchaser Benefit Plans or the exempt status of such trusts.
(iii) With respect to each Purchaser Benefit Plan, the Purchaser has made available to the Seller accurate and complete copies, if applicable, of: (i) all Purchaser Benefit Plan documents and agreements and related trust agreements or annuity Contracts (including had any amendments, modifications or supplements thereto); (ii) all summary plan descriptions and material modifications thereto; (iii) the three (3) most recent Forms 5500, if applicable, and annual report, including all schedules thereto; (iv) the most recent annual and periodic accounting of plan assets; (v) the three (3) most recent nondiscrimination testing reports; (vi) the most recent determination letter received from the IRS, if any; (vii) the most recent actuarial valuation; and (viii) all material written communications between the Purchaser or any Subsidiary or any Purchaser Benefit Plan and any Governmental Authority and relating to a Purchaser Benefit Plan within six (6) years preceding the date of this Agreement.
(iv) With respect to each Purchaser Benefit Plan: (i) such Purchaser Benefit Plan has been administered and enforced in all material respects in accordance with its terms, the Code and ERISA; (ii) neither the Purchaser nor any Subsidiary nor any employee, officer or director thereof that is a fiduciary (under ERISA) liability with respect to such Purchaser Benefit Plan or has breached within the past six years maintained or contributed to or had any of its fiduciary responsibilities, obligations or duties imposed on it by ERISA; (iii) no Action is pending or threatened in writing (other than routine claims for benefits arising in the ordinary course of administration); (iv) nothing has occurred liability with respect to any Purchaser Benefit a Pension Plan that has subjected the Purchaser or any Subsidiary to any material penalty under Section 502 of ERISA or Section 4975 of the Code; and (v) all contributions and premiums due through the Closing Date have been made in all material respects as required under ERISA or have been fully accrued in all material respects on the Purchaser Financials.
(v) No Purchaser Benefit Plan is, and neither the Purchaser or any Subsidiary or any of their respective ERISA Affiliates sponsors, maintains, contributes to, is required to contribute to, or otherwise has or could reasonably be expected to have any current or contingent Liability under or with respect to, a “defined benefit plan” (as defined in Section 414(j) of the Code), a “multiemployer plan” (as defined in Section 3(37) of ERISA) or a “multiple employer plan” (as described in Section 413(c) of the Code) or is otherwise subject to Subtitles C or D of Title IV of ERISA or Section 412 of the Code. To the Purchaser’s Knowledge, no Purchaser Benefit Plan will become a multiple employer plan with respect to any Purchaser Entity immediately after the Closing Date. Neither the Purchaser nor any Subsidiary currently (y) maintains or has ever maintained, or is required currently or has ever been required an obligation to contribute to or otherwise participate in, a multiple employer welfare arrangement or voluntary employees’ beneficiary association as defined in Section 501(c)(9) of the Code. For purposes of this Agreement, “ERISA Affiliate” means, had any liability with respect to or has within the past six years maintained or had an obligation to contribute to or had any Personliability with respect to a multiemployer plan.
(c) Neither the execution of this Agreement nor the consummation of the transactions contemplated hereby will (w) entitle any Employees to severance pay or any increase in severance pay upon any termination of employment after the date hereof, (x) 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 material obligation pursuant to, any Person of the Benefit Plans, (y) limit or entity restrict the right of the Vendors or, after the consummation of the transactions contemplated hereby, the Purchasers, to merge, amend or terminate any of the Benefit Plans or (whether or z) result in payments under any of the Benefit Plans which would not incorporated) that is under common control or treated as one employer be deductible under Section 4001(b)(1) of ERISA or Section 414(b), (c), (m) or (o) 280G of the Code.
(d) None of the Benefit Plans provide benefits beyond retirement or other termination of service to Employees or former employees or to the beneficiaries or dependants of such employees.
Appears in 1 contract
Sources: Asset Purchase Agreement (Alliance Semiconductor Corp /De/)
Benefit Plans. (ia) Set forth on Schedule 3.19(a4.19(a) is a true and complete list of each material Benefit Plan of the Purchaser and its Subsidiaries a Target Company (each, a “Purchaser Company Benefit Plan”). With respect to each Purchaser Company Benefit Plan, there are no material funded benefit obligations for which contributions have not been materially made or properly accrued and there are no material unfunded benefit obligations that have not been accounted for by reserves, or otherwise properly footnoted in accordance with GAAP on the Purchaser Company Financials. Except as set forth on Schedule 3.19(a), neither the Purchaser nor any Subsidiary No Target Company is or has in the past been a member of a “controlled group” for purposes of Section 414(b), (c), (m) or (o) of the Code other than with the Purchaser or another SubsidiaryCode, nor does the Purchaser or any Subsidiary Target Company have any Liability with respect to any collectively-bargained for plans, whether or not subject to the provisions of ERISA. No statement, either written or oral, has been made by any Target Company to any Person with regard to any Company Benefit Plan that was not in accordance with the Company Benefit Plan in any material respect.
(iib) Each Purchaser material Company Benefit Plan in all material respects is and has been operated at all times in compliance with all applicable Laws in all material respects, including ERISA and the Code. Each Purchaser Company Benefit Plan which is intended to be “qualified” within the meaning of Section 401(a) of the Code (i) has been determined by the IRS to be so qualified (or is based on a prototype plan which has received a favorable opinion letter) during the period from its adoption to the date of this Agreement and (ii) is funded through a its related trust has been determined to be exempt from taxation under Section 501(a) of the CodeCode or the Target Companies have requested an initial favorable IRS determination of qualification and/or exemption within the period permitted by applicable Law. To the Knowledge of the PurchaserCompany’s Knowledge, no fact exists which could would reasonably be expected to materially and adversely affect the qualified status of such Purchaser Company Benefit Plans or the exempt status of such trusts.
(iiic) With respect to each Purchaser Company Benefit PlanPlan which covers any current or former officer, director, consultant or employee (or beneficiary thereof) of a Target Company, the Company has provided to Purchaser has made available to the Seller accurate and complete copies, if applicable, of: (i) all Purchaser the current Company Benefit Plan documents and agreements and related currently effective trust agreements agreement or annuity Contracts Contract (including any amendments, modifications or supplements thereto); (ii) all the most recent summary plan descriptions and material modifications thereto; (iii) the three (3) most recent Forms 5500, if applicable, and annual report, including all schedules thereto; (iv) the most recent annual and periodic accounting of plan assets; (v) the three (3) most recent nondiscrimination testing reports; (vi) the most recent determination letter received from the IRS, if any; (vii) the most recent actuarial valuation; and (viii) all material written communications between the Purchaser or any Subsidiary or any Purchaser Benefit Plan and with any Governmental Authority and relating to a Purchaser Benefit Plan within six during the past three (63) years preceding the date of this Agreementyears.
(ivd) With respect to each Purchaser material Company Benefit Plan: (i) such Purchaser Company Benefit Plan has been administered and enforced in all material respects in accordance with its terms, the Code and ERISA; (ii) neither to the Purchaser nor any Subsidiary nor any employee, officer or director thereof that is a Company’s Knowledge no breach of fiduciary (under ERISA) with respect to such Purchaser Benefit Plan duty has breached any of its fiduciary responsibilities, obligations or duties imposed on it by ERISAoccurred; (iii) no Action is pending pending, or to the Company’s Knowledge, threatened in writing (other than routine claims for benefits arising in the ordinary course of administration); (iv) nothing has occurred with respect to any Purchaser Benefit Plan that has subjected the Purchaser or any Subsidiary to any material penalty under Company’s Knowledge no prohibited transaction, as defined in Section 502 406 of ERISA or Section 4975 of the Code, has occurred, excluding transactions effected pursuant to a statutory or administration exemption; and (v) all contributions and premiums due through the Closing Date have been made in all material respects as required under ERISA or have been fully accrued in all material respects on the Purchaser Company Financials.
(ve) No Purchaser Company Benefit Plan is, and neither the Purchaser or any Subsidiary or any of their respective ERISA Affiliates sponsors, maintains, contributes to, is required to contribute to, or otherwise has or could reasonably be expected to have any current or contingent Liability under or with respect to, a “defined benefit plan” (as defined in Section 414(j) of the Code), a “multiemployer plan” (as defined in Section 3(37) of ERISA) or a “multiple employer plan” (as described in Section 413(c) of the Code) or is otherwise subject to Title IV of ERISA or Section 412 of the Code, and no Target Company has any outstanding Liability under Title IV of ERISA and no condition presently exists that is expected to cause such Liability to be incurred. To the Purchaser’s Knowledge, no Purchaser No Company Benefit Plan will become a multiple employer plan with respect to any Purchaser Entity Target Company immediately after the Closing Date. Neither the Purchaser nor any Subsidiary No Target Company currently maintains or has ever maintained, or is required currently or has ever been required to contribute to or otherwise participate in, a multiple employer welfare arrangement or voluntary employees’ beneficiary association as defined in Section 501(c)(9) of the Code. For purposes of this Agreement, “ERISA Affiliate” means, .
(f) There is no arrangement under any Company Benefit Plan with respect to any Personemployee that would result in the payment of any amount that by operation of Sections 280G or 162(m) of the Code would not be deductible by the Target Companies and no arrangement exists pursuant to which a Target Company will be required to “gross up” or otherwise compensate any person because of the imposition of any excise tax on a payment to such person
(g) With respect to each Company Benefit Plan which is a “welfare plan” (as described in Section 3(1) of ERISA): (i) no such plan provides medical or death benefits with respect to current or former employees of a Target Company beyond their termination of employment (other than (A) coverage mandated by Law, which is paid solely by such employees, (B) benefits through the end of the month of termination of employment, to the extent provided under the terms of the applicable Company Benefit Plan and underlying insurance policy, (C) death or disability benefits attributable to deaths or disabilities occurring at or prior to termination of employment, and (D) conversion rights); and (ii) there are no reserves, assets, surplus or prepaid premiums under any such plan. Each Target Company has complied with the provisions of Section 601 et seq. of ERISA and Section 4980B of the Code in all material respects.
(h) The consummation of the transactions contemplated by this Agreement and the Ancillary Documents will not: (i) entitle any individual to severance pay, unemployment compensation or other benefits or compensation; (ii) accelerate the time of payment or vesting, or increase the amount of any compensation due, or in respect of, any Person individual; or entity (whether iii) result in or not incorporated) satisfy a condition to the payment of compensation that is would, in combination with any other payment, result in an “excess parachute payment” within the meaning of Section 280G of the Code. No Target Company has incurred any Liability for any Tax imposed under common control Chapter 43 of the Code or treated as one employer civil liability under Section 4001(b)(1) of ERISA or Section 414(b), (c), (m502(i) or (ol) of ERISA.
(i) Except to the extent required by Section 4980B of the Code or similar state Law, no Target Company provides health or welfare benefits to any former or retired employee or is obligated to provide such benefits to any active employee following such employee’s retirement or other termination of employment or service.
(j) All material Company Benefit Plans can be terminated at any time as of or after the Closing Date without resulting in any material Liability, excluding normal administrative costs, to the Surviving Corporation or Purchaser or their respective Affiliates.
(k) Each Company Benefit Plan that is subject to Section 409A of the Code (each, a “Section 409A Plan”) as of the Closing Date is indicated as such on Schedule 4.19(k). No Company Options or other equity-based awards have been issued or granted by the Company that are, or are subject to, a Section 409A Plan. Each Section 409A Plan has been administered in compliance, and is in documentary compliance, with the applicable provisions of Section 409A of the Code, the regulations thereunder and other official guidance issued thereunder. No Target Company has any obligation to any employee or other service provider with respect to any Section 409A Plan that may be subject to any Tax under Section 409A of the Code. No payment to be made under any Section 409A Plan is, or to the Knowledge of the Company will be, subject to the penalties of Section 409A(a)(1) of the Code. There is no Contract or plan to which any Target Company is a party or by which it is bound to compensate any employee, consultant or director for penalty taxes paid pursuant to Section 409A of the Code.
Appears in 1 contract
Benefit Plans. (ia) Set forth on Schedule 3.19(a4.19(a) is a true and complete list of each material Benefit Plan of the Purchaser and its Subsidiaries a Target Company (each, a “Purchaser Company Benefit Plan”). With respect to each Purchaser Company Benefit Plan, there all contributions, deferrals, premiums and benefit payments under or in connection therewith that are no funded benefit obligations for which contributions required to have not been materially made as of the Closing Date will have been made or properly accrued and there are no material unfunded benefit obligations that have not been accounted for by reserves, or otherwise properly footnoted in accordance with GAAP on the Purchaser Company Financials. Except as set forth on Schedule 3.19(a), neither the Purchaser nor any Subsidiary No Target Company is or has in the past been a member of a “controlled group” for purposes of Section 414(b), (c), (m) or (o) of the Code other than with the Purchaser or another SubsidiaryCode, nor does the Purchaser or any Subsidiary Target Company have any Liability with respect to any collectively-bargained for plans, whether or not subject to the provisions of ERISA.
(iib) Each Purchaser Company Benefit Plan in all material respects is and has been operated at all times in compliance with all applicable Laws in all material respects, including ERISA and the Code. Each Purchaser Company Benefit Plan which is intended to be “qualified” within the meaning of Section 401(a) of the Code (i) has been determined by the IRS to be so qualified (or is based on a prototype or volume submitter plan which has received a favorable opinion letter) during the period from its adoption to the date of this Agreement and (ii) is funded through a its related trust has been determined to be exempt from taxation under Section 501(a) of the CodeCode or the Target Companies have requested an initial favorable IRS determination of qualification and/or exemption within the period permitted by applicable Law. To the Knowledge of the Purchaser, no No fact exists which could adversely affect the qualified status of such Purchaser Company Benefit Plans or the exempt status of such trusts.
(iiic) With respect to each Purchaser Company Benefit PlanPlan which covers any current or former officer, director, consultant or employee (or beneficiary thereof) of a Target Company, the Company has provided to Purchaser has made available to the Seller accurate and complete copies, if applicable, of: (i) all Purchaser Company Benefit Plan documents and agreements and related trust agreements or annuity Contracts (including any amendments, modifications or supplements thereto); (ii) all current summary plan descriptions and subsequent material modifications thereto; (iii) the three (3) most recent Forms 5500, if applicable, and annual report, including all schedules thereto; (iv) the most recent annual and periodic accounting of plan assets; (v) the three (3) most recent nondiscrimination testing reports; (vi) the most recent determination letter received from the IRS, if any; (vii) the most recent actuarial valuation; and (viii) all material written non-routine communications between in the Purchaser or any Subsidiary or any Purchaser Benefit Plan and past three (3) years with any Governmental Authority and relating to a Purchaser concerning any Company Benefit Plan within six (6) years preceding the date of this Agreementmatter that is still pending or for which a Target Company has any outstanding material Liability.
(ivd) With respect to each Purchaser Company Benefit Plan: (i) such Purchaser Company Benefit Plan has been administered and enforced in all material respects in accordance with its terms, the Code and ERISA; (ii) neither the Purchaser nor any Subsidiary nor any employee, officer or director thereof that is a no breach of fiduciary (under ERISA) with respect to such Purchaser Benefit Plan duty has breached any of its fiduciary responsibilities, obligations or duties imposed on it by ERISAoccurred; (iii) no Action is pending pending, or to the Company’s Knowledge, threatened in writing (other than routine claims for benefits arising in the ordinary course of administration); (iv) nothing has occurred with respect to any Purchaser Benefit Plan that has subjected the Purchaser or any Subsidiary to any material penalty under no prohibited transaction, as defined in Section 502 406 of ERISA or Section 4975 of the Code, has occurred, excluding transactions effected pursuant to a statutory or administration exemption; and (v) all contributions and premiums due through the Closing Date have been made in all material respects as required under ERISA or have been fully accrued in all material respects on the Purchaser Company Financials.
(ve) No Purchaser Company Benefit Plan is, and neither the Purchaser or any Subsidiary or any of their respective ERISA Affiliates sponsors, maintains, contributes to, is required to contribute to, or otherwise has or could reasonably be expected to have any current or contingent Liability under or with respect to, a “defined benefit plan” (as defined in Section 414(j) of the Code), a “multiemployer plan” (as defined in Section 3(37) of ERISA) or a “multiple employer plan” (as described in Section 413(c) of the Code) or is otherwise subject to Title IV of ERISA or Section 412 of the Code, and no Target Company has incurred any Liability or otherwise could have any Liability, contingent or otherwise, under Title IV of ERISA and no condition presently exists that is expected to cause such Liability to be incurred. To the Purchaser’s Knowledge, no Purchaser No Company Benefit Plan will become a multiple employer plan with respect to any Purchaser Entity Target Company immediately after the Closing Date. Neither the Purchaser nor any Subsidiary No Target Company currently maintains or has ever maintained, or is required currently or has ever been required to contribute to or otherwise participate in, a multiple employer welfare arrangement or voluntary employees’ beneficiary association as defined in Section 501(c)(9) of the Code. For purposes of this Agreement, “ERISA Affiliate” means, .
(f) There is no arrangement under any Company Benefit Plan with respect to any Person, employee that would result in the payment of any Person amount that by operation of Sections 280G or entity (whether or not incorporated) that is under common control or treated as one employer under Section 4001(b)(1162(m) of ERISA the Code would not be deductible by the Target Companies and no arrangement exists pursuant to which a Target Company will be required to “gross up” or otherwise compensate any person because of the imposition of any excise tax on a payment to such person.
(g) With respect to each Company Benefit Plan which is a “welfare plan” (as described in Section 414(b3(1) of ERISA): (i) except as set forth on Schedule 4.19(g), no such plan provides medical or death benefits with respect to current or former employees, directors or consultants (cor a beneficiary thereof) of a Target Company beyond their termination of employment (other than coverage mandated by Law, which is paid solely by such beneficiary; benefits through the end of the month of termination of employment or engagement, as applicable; death or disability benefits attributable to deaths or disabilities occurring at or prior to termination of employment or engagement, as applicable; and post-termination benefits from an insurer during any period to convert a group Company Benefit Plan to an individual plan); and (ii) there are no reserves, (m) assets, surplus or (o) prepaid premiums under any such plan. Each Target Company has complied in all material respects with the provisions of Section 601 et seq. of ERISA and Section 4980B of the Code.
(h) Except as set forth on Schedule 4.19(h), the consummation of the transactions contemplated by this Agreement and the Ancillary Documents will not: (i) entitle any individual to severance pay, unemployment compensation or other benefits or compensation; (ii) accelerate the time of payment or vesting, or increase the amount of any compensation due, or in respect of, any individual; or (iii) result in or satisfy a condition to the payment of compensation that would, in combination with any other payment, result in an “excess parachute payment” within the meaning of Section 280G of the Code. No Target Company has incurred any Liability for any Tax imposed under Chapter 43 of the Code or civil liability under Section 502(i) or (l) of ERISA.
(i) Except as set forth on Schedule 4.19(i), except to the extent (i) required by Section 4980B of the Code or similar state Law; (ii) for benefits through the end of the month of termination of employment or engagement, as applicable; (iii) for death or disability benefits attributable to deaths or disabilities occurring at or prior to termination of employment or engagement, as applicable; or (iv) for post-termination benefits from an insurer during any period to convert a group Company Benefit Plan to an individual plan, no Target Company provides health or welfare benefits to any former or retired employee, director or consultant or is obligated to provide such benefits to any active employee, director or consultant following such employee, director or consultant’s retirement or other termination of employment or service.
(j) There is no Company Benefit Plan subject to Section 409A of the Code. There is no Contract or plan to which any Target Company is a party or by which it is bound to compensate any employee, consultant or director for penalty taxes paid pursuant to Section 409A of the Code.
Appears in 1 contract
Sources: Merger Agreement (Global Blockchain Acquisition Corp.)
Benefit Plans. (ia) Set forth on Schedule 3.19(a5.19(a) is a true and complete list of each material Company Benefit Plan of the Purchaser and its Subsidiaries (each, a “Purchaser Benefit Plan”)Target Company. With respect to each Purchaser Company Benefit Plan, there are no funded benefit obligations for which contributions have not been materially made or properly accrued and there are no material unfunded benefit obligations that have not been accounted for by reserves, or otherwise properly footnoted in accordance with GAAP IFRS on the Purchaser Company Financials. Except as set forth on Schedule 3.19(a), neither the Purchaser nor any Subsidiary No Target Company is or has in the past been a member of a “controlled group” for purposes of Section 414(b), (c), (m) or (o) of the Code other than with the Purchaser or another SubsidiaryCode, nor does the Purchaser or any Subsidiary Target Company have any Liability with respect to any collectively-collectively bargained for plans, whether or not subject to the provisions of ERISA. No statement, either written or oral, has been made by any Target Company to any Person with regard to any Company Benefit Plan that was not in accordance with the Company Benefit Plan in any material respect.
(iib) Each Purchaser Company Benefit Plan in all material respects is and has been operated at all times in compliance with all applicable Laws in all material respects, including ERISA and the Code. Each Purchaser Company Benefit Plan which is intended to be “qualified” within the meaning of Section 401(a) of the Code (i) has been determined by the IRS to be so qualified (or is based on a prototype plan which has received a favorable opinion letter) during the period from its adoption to the date of this Agreement and (ii) is funded through a its related trust has been determined to be exempt from taxation under Section 501(a) of the CodeCode or the Target Companies have requested an initial favorable IRS determination of qualification and/or exemption within the period permitted by applicable Law. To the Knowledge of the Purchaser, no No fact exists which could reasonably be expected to adversely affect the qualified status of such Purchaser Company Benefit Plans or the exempt status of such trusts.
(iiic) With respect to each Purchaser Company Benefit Plan which covers any current or former (to the extent a Target Company maintains a payment obligation under such Company Benefit Plan) officer, director, consultant or employee (or beneficiary thereof) of a Target Company, the Purchaser Company has made available provided to the Seller PubCo accurate and complete copies, if applicable, of: (i) all Purchaser current Company Benefit Plan documents texts and agreements and related trust agreements or annuity Contracts (including any amendments, modifications or supplements thereto); (ii) all current summary plan descriptions and material modifications thereto; (iii) the three (3) most recent Forms 5500, if applicable, and annual report, including all schedules thereto; (iv) the most recent annual and periodic accounting of plan assets; (v) the three (3) most recent nondiscrimination testing reports; (vi) the most recent determination letter received from the IRS, if any; (vii) the most recent actuarial valuation; and (viii) all material written non-routine communications between the Purchaser or any Subsidiary or any Purchaser Benefit Plan and with any Governmental Authority and relating to a Purchaser Benefit Plan within six (6) years preceding the date of this AgreementAuthority.
(ivd) With respect to each Purchaser Company Benefit Plan: (i) such Purchaser Company Benefit Plan has been administered and enforced in all material respects in accordance with its terms, the Code and ERISA; (ii) neither the Purchaser nor any Subsidiary nor any employee, officer or director thereof that is a no breach of fiduciary (under ERISA) with respect to such Purchaser Benefit Plan duty has breached any of its fiduciary responsibilities, obligations or duties imposed on it by ERISAoccurred; (iii) no Action is pending pending, or to the Company’s Knowledge, threatened in writing (other than routine claims for benefits arising in the ordinary course of administration); (iv) nothing has occurred with respect to any Purchaser Benefit Plan that has subjected the Purchaser or any Subsidiary to any material penalty under no prohibited transaction, as defined in Section 502 406 of ERISA or Section 4975 of the Code, has occurred, excluding transactions effected pursuant to a statutory or administration exemption; and (v) all contributions and premiums due through the Closing Date have been made in all material respects as required under ERISA or have been fully accrued in all material respects on the Purchaser Company Financials.
(ve) No Purchaser Company Benefit Plan is, and neither the Purchaser or any Subsidiary or any of their respective ERISA Affiliates sponsors, maintains, contributes to, is required to contribute to, or otherwise has or could reasonably be expected to have any current or contingent Liability under or with respect to, a “defined benefit plan” (as defined in Section 414(j) of the Code), a “multiemployer plan” (as defined in Section 3(37) of ERISA) or a “multiple employer plan” (as described in Section 413(c) of the Code) or is otherwise subject to Title IV of ERISA or Section 412 of the Code, and no Target Company has incurred any Liability or otherwise could have any Liability, contingent or otherwise, under Title IV of ERISA and no condition presently exists that is expected to cause such Liability to be incurred. To the Purchaser’s Knowledge, no Purchaser No Company Benefit Plan will become a multiple employer plan with respect to any Purchaser Entity Target Company immediately after the Closing Date. Neither the Purchaser nor any Subsidiary No Target Company currently maintains or has ever maintained, or is required currently or has ever been required to contribute to or otherwise participate in, a multiple employer welfare arrangement or voluntary employees’ beneficiary association as defined in Section 501(c)(9) of the Code. For purposes of this Agreement, “ERISA Affiliate” means, .
(f) There is no arrangement under any Company Benefit Plan with respect to any Personemployee that would result in the payment of any amount that by operation of Sections 280G or 162(m) of the Code would not be deductible by the Target Companies and no arrangement exists pursuant to which a Target Company will be required to “gross up” or otherwise compensate any person because of the imposition of any excise tax on a payment to such person.
(g) With respect to each Company Benefit Plan which is a “welfare plan” (as described in Section 3(1) of ERISA): (i) no such plan provides medical or death benefits with respect to current or former employees of a Target Company beyond their termination of employment (other than coverage mandated by Law, which is paid solely by such employees); and (ii) there are no reserves, assets, surplus or prepaid premiums under any such plan. Each Target Company has complied with the provisions of Section 601 et seq. of ERISA and Section 4980B of the Code.
(h) Except as set forth in Schedule 5.19(h), the consummation of the transactions contemplated by this Agreement and the Ancillary Documents will not: (i) entitle any individual to severance pay, unemployment compensation or other benefits or compensation; (ii) accelerate the time of payment or vesting, or increase the amount of any compensation due, or in respect of, any Person individual; or entity (whether iii) result in or not incorporated) satisfy a condition to the payment of compensation that is would, in combination with any other payment, result in an “excess parachute payment” within the meaning of Section 280G of the Code. No Target Company has incurred any Liability for any Tax imposed under common control Chapter 43 of the Code or treated as one employer civil liability under Section 4001(b)(1) of ERISA or Section 414(b), (c), (m502(i) or (ol) of ERISA.
(i) Except to the extent required by Section 4980B of the Code or similar state Law, no Target Company provides health or welfare benefits to any former or retired employee or is obligated to provide such benefits to any active employee following such employee’s retirement or other termination of employment or service.
(j) All Company Benefit Plans can be terminated at any time as of or after the Closing Date without resulting in any material Liability to the Surviving Entity or PubCo or their respective Affiliates for any additional contributions, penalties, premiums, fees, fines, excise taxes or any other charges or liabilities.
(k) Except as set forth in Schedule 5.19(k), all options or other equity-based awards issued or granted by the Company are in material compliance with a Section 409A. Each Company Benefit Plan subject to Code Section 409A has been administered in material compliance, and is in material documentary compliance, with the applicable provisions of Section 409A of the Code, the regulations thereunder and other official guidance issued thereunder. No Target Company has any obligation to any employee or other service provider with respect to any Company Benefit Plan that may be subject to any Tax under Section 409A of the Code. No payment to be made under any Company Benefit Plan is, or to the Knowledge of the Company will be, subject to the penalties of Section 409A(a)(1) of the Code. There is no Contract or plan to which any Target Company is a party or by which it is bound to compensate any employee, consultant or director for penalty taxes paid pursuant to Section 409A of the Code.
Appears in 1 contract
Sources: Business Combination Agreement (Catcha Investment Corp)
Benefit Plans. (i) Set Schedule 4.11 sets forth on Schedule 3.19(a) is a true and complete list of each material Benefit Plan of the Purchaser and its Subsidiaries (each, a “Purchaser Benefit LED Employee Plan”). With respect to each Purchaser Benefit Plan, there are no funded benefit obligations for which contributions have not been materially made or properly accrued and there are no material unfunded benefit obligations that have not been accounted for by reserves, or otherwise properly footnoted in accordance with GAAP on the Purchaser Financials. Except as set forth on Schedule 3.19(a), neither the Purchaser nor any Subsidiary or has in the past been a member of a “controlled group” for purposes of Section 414(b), (c), (m) or (o) of the Code other than with the Purchaser or another Subsidiary, nor does the Purchaser or any Subsidiary have any Liability with respect to any collectively-bargained for plans, whether or not subject to the provisions of ERISA.
(ii) Each Purchaser Benefit Plan in all material respects is and has been operated in compliance with all applicable Laws in all material respects, including ERISA and the Code. Each Purchaser Benefit Plan which is intended to be “qualified” within the meaning of Section 401(a) of the Code (i) has been determined by the IRS to be so qualified (or is based on a prototype plan which has received a favorable opinion letter) during the period from its adoption to the date of this Agreement and (ii) is funded through a trust exempt from taxation under Section 501(a) of the Code. To the Knowledge of the Purchaser, no fact exists which could adversely affect the qualified status of such Purchaser Benefit Plans or the exempt status of such trusts.
(iii) With respect to each Purchaser Benefit Plan, the Purchaser has made available to the Seller accurate and complete copies, if applicable, of: (i) all Purchaser Benefit Plan documents and agreements and related trust agreements or annuity Contracts (including any amendments, modifications or supplements thereto); (ii) all summary plan descriptions and material modifications thereto; (iii) the three (3) most recent Forms 5500, if applicable, and annual report, including all schedules thereto; (iv) the most recent annual and periodic accounting of plan assets; (v) the three (3) most recent nondiscrimination testing reports; (vi) the most recent determination letter received from the IRS, if any; (vii) the most recent actuarial valuation; and (viii) all material written communications between the Purchaser or any Subsidiary or any Purchaser Benefit Plan and any Governmental Authority and relating to a Purchaser Benefit Plan within six (6) years preceding the date of this Agreement.
(iv) With respect to each Purchaser Benefit Plan: (i) such Purchaser Benefit LED Employee Plan has been established, operated and administered and enforced in all material respects in accordance with its terms, and each such LED Employee Plan is in material compliance with all applicable Laws. All contributions (including all employer contributions and employee salary reduction contributions) and premiums required to have been paid by LED to any LED Employee Plan under the Code terms of any such LED Employee Plan or its related trust, insurance contract or other funding arrangement, or pursuant to any applicable law have been paid within the time prescribed by any such LED Employee Plan, trust, contract or arrangement, or applicable Law. All contributions and premiums for any period ending on or before the Closing Date that are not yet due have been made to each such LED Employee Plan or its related trust, insurance contract or other funding arrangement. No LED Employee Plan is (i) a "multiple employer plan" for purposes of Sections 4063 or 4064 of ERISA; , (ii) neither subject to Section 412 of the Purchaser nor any Subsidiary nor any employeeCode or Section 302 or Title IV of ERISA, officer or director thereof that is a fiduciary (under ERISA) with respect to such Purchaser Benefit Plan has breached any of its fiduciary responsibilities, obligations or duties imposed on it by ERISA; (iii) no Action is pending or threatened in writing a "multiemployer plan" (other than routine claims for benefits arising in within the ordinary course meaning of administrationSection 4001(a)(3) of ERISA); , (iv) nothing has occurred with respect intended to any Purchaser Benefit Plan that has subjected satisfy the Purchaser or any Subsidiary to any material penalty under requirements of Section 502 of ERISA or Section 4975 of the Code; and (v) all contributions and premiums due through the Closing Date have been made in all material respects as required under ERISA or have been fully accrued in all material respects on the Purchaser Financials.
(v) No Purchaser Benefit Plan is, and neither the Purchaser or any Subsidiary or any of their respective ERISA Affiliates sponsors, maintains, contributes to, is required to contribute to, or otherwise has or could reasonably be expected to have any current or contingent Liability under or with respect to, a “defined benefit plan” (as defined in Section 414(j403(a) of the Code), a “multiemployer plan” (as defined in Section 3(37) of ERISA) or a “multiple employer plan” (as described in Section 413(c) of the Code) or is otherwise subject to Title IV of ERISA or Section 412 of the Code. To the Purchaser’s Knowledge, no Purchaser Benefit Plan will become a multiple employer plan with respect to any Purchaser Entity immediately after the Closing Date. Neither the Purchaser nor any Subsidiary currently maintains or has ever maintained, or is required currently or has ever been required (v) intended to contribute to or otherwise participate in, a multiple employer welfare arrangement or voluntary employees’ beneficiary association as defined in be qualified under Section 501(c)(9401(a) of the Code. For purposes Neither LED nor any LED ERISA Affiliate has incurred any liability (including as a result of this Agreementany indemnification obligation) under Title I or Title IV of ERISA for which LED could be liable. No event has occurred, “no condition exists, and there are no pending or, to the Knowledge of LED, threatened claims by or on behalf of any LED Employee Plan by any person covered thereby (other than ordinary claims for benefits submitted by participants or beneficiaries) or any Governmental Authority that would subject LED, either directly or by reason of affiliation with an LED ERISA Affiliate” means, with to any material Tax, fine, Encumbrance, or other liability imposed by ERISA, the Code or other applicable Law. No asset of LED is subject to any Encumbrance under ERISA or the Code. With respect to each LED Employee Plan, LED has provided or made available to LSG true and complete copies of: (i) such LED Employee Plan, if written, or a description of such LED Employee Plan, if not written, and (ii) to the extent applicable to such LED Employee Plan: all trust agreements, insurance contracts or other funding arrangements; the three most recent Forms 5500 required to have been filed with the IRS and all schedules thereto; all current summary plan descriptions, all material communications received from or sent to the IRS or the Department of Labor (including a written description of any Personoral communication); and all amendments and modifications to any such document. No LED Employee Plan exists that could result in the payment to any Continued Employee of any money or other property (including any severance payments, any Person or entity (whether or not incorporated) that is under common control or treated as one employer under Section 4001(b)(1) bonus of ERISA or Section 414(b), (c), (mother compensation) or (o) in the acceleration of any other rights or benefits to any Continued Employee as a result of the Codetransactions contemplated herein.
Appears in 1 contract
Sources: Exchange and Contribution Agreement (Lighting Science Group Corp)
Benefit Plans. (a) Schedule 3.11(a) lists all Benefit Plans in effect and maintained, sponsored, contributed to, or required to be contributed to by the Sellers and/or the Companies, under which Employees have accrued material benefits for service as Employees in connection with the Business, true and correct copies of which have been made available to Buyer.
(b) Except as would not result in a material Liability to Buyer:
(i) Set forth on Schedule 3.19(a) is a true and complete list of each material Benefit Plan that is intended to be qualified under Section 401(a) of the Purchaser and its Subsidiaries (each, Code has received a “Purchaser Benefit Plan”). With favorable IRS determination letter issued with respect to each Purchaser such plan or a favorable advisory or opinion letter issued by the IRS to the sponsor of the volume submitter or prototype plan adopted with respect to such Benefit PlanPlan to that effect, there are and no funded benefit obligations for amendment has been made nor has any event occurred with respect to any such Benefit Plan which contributions have not been materially made would reasonably be expected to cause the loss or properly accrued denial of such qualification under Section 401(a) of the Code;
(ii) no Seller, no Subsidiary of a Seller, and there are no material unfunded benefit obligations that have not been accounted for by reserves, ERISA Affiliate of any Seller or otherwise properly footnoted in accordance with GAAP on the Purchaser Financials. Except as set forth on Schedule 3.19(a), neither the Purchaser nor any Company or of any Subsidiary of any Seller or any Company sponsors, maintains, contributes to, has in the past been a member of a “controlled group” for purposes of Section 414(b)sponsored, (c)maintained or contributed to, (m) or (o) of the Code other than with the Purchaser or another Subsidiary, nor does the Purchaser or otherwise has any Subsidiary have any Liability obligation with respect to (A) any collectively-bargained for plans, whether plan or not arrangement subject to the provisions Title IV or Section 302 of ERISA.
(ii) Each Purchaser Benefit Plan in all material respects is and has been operated in compliance with all applicable Laws in all material respects, including ERISA and or Section 412 of the Code. Each Purchaser Benefit Plan which is intended to be , (B) a “qualifiedmultiemployer plan” within the meaning of Section 401(a3(37) of ERISA, or (c) a “multiple employer welfare arrangement” (as defined in Section 3(40) of ERISA);
(iii) except as set forth on Schedule 3.11(b)(iii), no Benefit Plan provides health, medical or other welfare benefits after retirement or other termination of employment, other than for continuation coverage required under Section 4980B(f) of the Code and Sections 601 through 608, inclusive, of ERISA or similar state Law (i) has been determined by the IRS to be so qualified (or is based on a prototype plan which has received a favorable opinion letter) during the period from its adoption to the date of this Agreement and (ii) is funded through a trust exempt from taxation under Section 501(a) of the Code. To the Knowledge of the Purchaser, no fact exists which could adversely affect the qualified status of such Purchaser Benefit Plans or the exempt status of such trusts.
(iii) With respect to each Purchaser Benefit Plan, the Purchaser has made available to the Seller accurate and complete copies, if applicable, of: (i) all Purchaser Benefit Plan documents and agreements and related trust agreements or annuity Contracts (including any amendments, modifications or supplements thereto“COBRA”); (ii) all summary plan descriptions and material modifications thereto; (iii) the three (3) most recent Forms 5500, if applicable, and annual report, including all schedules thereto; (iv) the most recent annual and periodic accounting of plan assets; (v) the three (3) most recent nondiscrimination testing reports; (vi) the most recent determination letter received from the IRS, if any; (vii) the most recent actuarial valuation; and (viii) all material written communications between the Purchaser or any Subsidiary or any Purchaser Benefit Plan and any Governmental Authority and relating to a Purchaser Benefit Plan within six (6) years preceding the date of this Agreement.;
(iv) With respect to each Purchaser except as set forth on Schedule 3.11(b)(iv), neither the signing of this Agreement, nor the consummation of the transaction contemplated hereby will accelerate the time of payment or vesting, or trigger any payment or funding, of any compensation or benefits or trigger any other material obligation under any Benefit Plan: ; and
(iv) such Purchaser each Benefit Plan has been is operated and administered and enforced in all material respects in accordance with its termsterms and applicable Law, including ERISA and the Code Code.
(c) The representations and ERISA; (ii) neither the Purchaser nor any Subsidiary nor any employee, officer or director thereof that is a fiduciary (under ERISA) with respect to such Purchaser Benefit Plan has breached any of its fiduciary responsibilities, obligations or duties imposed on it by ERISA; (iii) no Action is pending or threatened in writing (other than routine claims for benefits arising in the ordinary course of administration); (iv) nothing has occurred with respect to any Purchaser Benefit Plan that has subjected the Purchaser or any Subsidiary to any material penalty under Section 502 of ERISA or Section 4975 warranties of the Code; Sellers included in this Section 3.11 shall constitute the sole and (v) all contributions exclusive representations and premiums due through warranties of the Closing Date have been made in all material respects as required Sellers relating to employee benefit matters, including any matters arising under ERISA or have been fully accrued in all material respects on the Purchaser Financialsother applicable Laws.
(v) No Purchaser Benefit Plan is, and neither the Purchaser or any Subsidiary or any of their respective ERISA Affiliates sponsors, maintains, contributes to, is required to contribute to, or otherwise has or could reasonably be expected to have any current or contingent Liability under or with respect to, a “defined benefit plan” (as defined in Section 414(j) of the Code), a “multiemployer plan” (as defined in Section 3(37) of ERISA) or a “multiple employer plan” (as described in Section 413(c) of the Code) or is otherwise subject to Title IV of ERISA or Section 412 of the Code. To the Purchaser’s Knowledge, no Purchaser Benefit Plan will become a multiple employer plan with respect to any Purchaser Entity immediately after the Closing Date. Neither the Purchaser nor any Subsidiary currently maintains or has ever maintained, or is required currently or has ever been required to contribute to or otherwise participate in, a multiple employer welfare arrangement or voluntary employees’ beneficiary association as defined in Section 501(c)(9) of the Code. For purposes of this Agreement, “ERISA Affiliate” means, with respect to any Person, any Person or entity (whether or not incorporated) that is under common control or treated as one employer under Section 4001(b)(1) of ERISA or Section 414(b), (c), (m) or (o) of the Code.
Appears in 1 contract
Sources: Equity Interest Purchase Agreement (Tetra Technologies Inc)
Benefit Plans. (ia) Set forth on Schedule 3.19(a5.19(a) is a true and complete list of each material Benefit Plan of the Purchaser and its Subsidiaries Target Company (each, a “Purchaser Company Benefit Plan”). With respect to each Purchaser the Company Benefit Plan, there are no funded benefit obligations for which contributions have not been materially made or properly accrued and there are no material unfunded benefit obligations that have not been accounted for by reserves, or otherwise properly footnoted in accordance with GAAP IFRS on the Purchaser Company Financials. Except as set forth on Schedule 3.19(a), neither the Purchaser nor any Subsidiary The Target Company is not or has in the past been a member of a “controlled group” for purposes of Section 414(b), (c), (m) or (o) of the Code other than with the Purchaser or another SubsidiaryCode, nor does the Purchaser or any Subsidiary Target Company have any Liability with respect to any collectively-bargained for plans, whether or not subject to the provisions of ERISA. No written statement or the to the Knowledge of the Target Company, oral statement, has been made by the Target Company to any Person with regard to any Company Benefit Plan that was not in accordance with the Company Benefit Plan in any material respect.
(iib) Each Purchaser The Company Benefit Plan in all material respects is and has been operated at all times in compliance with all applicable Laws in all material respects, including ERISA and the Code. Each Purchaser The Company Benefit Plan which is intended to be “qualified” within the meaning of Section 401(a) of the Code (i) has been determined by the IRS to be so qualified (or is based on a prototype plan which has received a favorable opinion letter) during the period from its adoption to the date of this Agreement and (ii) is funded through a its related trust has been determined to be exempt from taxation under Section 501(a) of the CodeCode or the Target Company have requested an initial favorable IRS determination of qualification and/or exemption within the period permitted by applicable Law. To the Knowledge knowledge of the PurchaserTarget Company, no fact exists which could adversely affect the qualified status of such Purchaser Company Benefit Plans or the exempt status of such trusts.
(iiic) With respect to each Purchaser the Company Benefit PlanPlan which covers any current or former officer, manager, consultant or employee (or beneficiary thereof) of the Target Company, the Target Company has provided to Purchaser has made available to the Seller accurate and complete copies, if applicable, of: (i) all Purchaser Company Benefit Plan documents texts and agreements and related trust agreements or annuity Contracts (including any amendments, modifications or supplements thereto); (ii) all summary plan descriptions and material modifications thereto; (iii) the three (3) most recent Forms 5500, if applicable, and annual report, including all schedules thereto; (iv) the most recent annual and periodic accounting of plan assets; (v) the three (3) most recent nondiscrimination testing reports; (vi) the most recent determination letter received from the IRS, if any; and (vii) the most recent actuarial valuation; and (viii) all material written communications between the Purchaser or any Subsidiary or any Purchaser Benefit Plan and any Governmental Authority and relating to a Purchaser Benefit Plan within six (6) years preceding the date of this Agreement.
(ivd) With respect to each Purchaser the Company Benefit Plan: (i) such Purchaser Company Benefit Plan has been administered and enforced in all material respects in accordance with its terms, the Code and ERISA; (ii) neither the Purchaser nor any Subsidiary nor any employee, officer or director thereof that is a no breach of fiduciary (under ERISA) with respect to such Purchaser Benefit Plan duty has breached any of its fiduciary responsibilities, obligations or duties imposed on it by ERISAoccurred; (iii) no Action is pending pending, or to the Target Company’ Knowledge, threatened in writing (other than routine claims for benefits arising in the ordinary course of administration); (iv) nothing has occurred with respect to any Purchaser Benefit Plan that has subjected the Purchaser or any Subsidiary to any material penalty under no prohibited transaction, as defined in Section 502 406 of ERISA or Section 4975 of the Code, has occurred, excluding transactions effected pursuant to a statutory or administration exemption; and (v) all contributions and premiums due through the Closing Date date hereof have been made in all material respects as required under ERISA or have been fully accrued in all material respects on the Purchaser Company Financials.
(ve) No Purchaser Company Benefit Plan is, and neither the Purchaser or any Subsidiary or any of their respective ERISA Affiliates sponsors, maintains, contributes to, is required to contribute to, or otherwise has or could reasonably be expected to have any current or contingent Liability under or with respect to, (i) a “defined benefit plan” (as defined in Section 414(j) of the Code), (ii) a “multiemployer plan” (as defined in Section 3(37) of ERISA) or (iii) a “multiple employer plan” (as described in Section 413(c) of the Code) or is (iv) otherwise subject to Title IV of ERISA or Section 412 of the Code. To Neither Target Company nor any ERISA Affiliate has incurred any Liability or to the Purchaser’s KnowledgeKnowledge of the Target Company, otherwise could have any Liability, contingent or otherwise, under Title IV of ERISA and to the Knowledge of the Target Company, no Purchaser Benefit Plan will become a multiple employer plan with respect condition presently exists that is expected to any Purchaser Entity immediately after the Closing Datecause such Liability to be incurred. Neither the Purchaser nor any Subsidiary The Target Company does not currently maintains maintain or has ever maintained, or is required currently or has ever been required to contribute to or otherwise participate in, a multiple employer welfare arrangement or voluntary employees’ beneficiary association as defined in Section 501(c)(9) of the Code. For purposes of this Agreement, “ERISA Affiliate” means, .
(f) There is no arrangement under any Company Benefit Plan with respect to any employee that would result in the payment of any amount that by operation of Sections 280(G) or 162(m) of the Code would not be deductible by the Target Company and no arrangement exists pursuant to which the Target Company will be required to “gross up” or otherwise compensate any Person because of the imposition of any excise tax on a payment to such Person.
(g) With respect to the Company Benefit Plan which is a “welfare plan” (as described in Section 3(1) of ERISA): (i) no such plan provides medical or death benefits with respect to current or former employees of the Target Company beyond their termination of employment (other than coverage mandated by Law, which is paid solely by such employees); and (ii) there are no reserves, assets, surplus or prepaid premiums under any such Company Benefit Plan. The Target Company has complied with the provisions of Section 601 et seq. of ERISA and Section 4980B of the Code.
(h) The consummation of the transactions contemplated by this Agreement and the Ancillary Documents will not: (i) entitle any individual to severance pay, unemployment compensation or other benefits or compensation; (ii) accelerate the time of payment or vesting, or increase the amount of any compensation due, or in respect of, any Person individual; or entity (whether iii) result in or satisfy a condition to the payment of compensation that would, in combination with any other payment, result in an “excess parachute payment” within the meaning of Section 280G of the Code. The Target Company has not incorporated) that is incurred any Liability for any Tax imposed under common control Chapter 43 of the Code or treated as one employer civil liability under Section 4001(b)(1) of ERISA or Section 414(b), (c), (m502(i) or (ol) of ERISA.
(i) Except to the extent required by Section 4980B of the Code or similar state Law, the Target Company does not provide health or welfare benefits to any former or retired employee or is obligated to provide such benefits to any active employee following such employee’s retirement or other termination of employment or service.
(j) Based on the language of the Company Benefit Plan, all Company Benefit Plans can be terminated at any time as of or after the Closing Date without resulting in any Liability to the Surviving Subsidiary or Pubco or their respective Affiliates for any additional contributions, penalties, premiums, fees, fines, excise taxes or any other charges or liabilities.
(k) The Company Benefit Plan that is subject to Section 409A of the Code (each, a “Section 409A Plan”) is indicated as such in Schedule 5.19(k). No options to purchase Company Interests or any other equity-based awards have been issued or granted by the Target Company that are, or are subject to, a Section 409A Plan. Each Section 409A Plan has been administered in material compliance, and is in documentary material compliance, with the applicable provisions of Section 409A of the Code, the regulations thereunder and other official guidance issued thereunder. The Target Company does not have any obligation to any employee or other service provider with respect to any Section 409A Plan that may be subject to any Tax under Section 409A of the Code. No payment to be made under any Section 409A Plan is, or to the Knowledge of the Target Company will be, subject to the penalties of Section 409A(a)(1) of the Code. There is no Contract or Company Benefit Plan to which the Target Company is a party or by which it is bound to compensate any employee, consultant or director for any Taxes or interest imposed pursuant to Section 409A of the Code.
Appears in 1 contract
Sources: Business Combination Agreement (Relativity Acquisition Corp)
Benefit Plans. (ia) Set forth on Schedule 3.19(a4.19(a) is a true and complete list of each material Benefit Plan of a Target Company as of the Purchaser and its Subsidiaries date hereof (each, a “Purchaser Company Benefit Plan”). With respect to each Purchaser Company Benefit Plan, there are no funded benefit obligations for which contributions have not been materially made or properly accrued and there are no material unfunded benefit obligations that have not been accounted for by reserves, or otherwise properly footnoted in accordance with GAAP on the Purchaser Company Financials. Except as set forth on Schedule 3.19(a), neither the Purchaser nor any Subsidiary No Target Company is or has in the past been a member of a “controlled group” for purposes of Section 414(b), (c), (m) or (o) of the Code with respect to any person or entity other than with the Purchaser or another SubsidiaryTarget Company, nor does the Purchaser or any Subsidiary Target Company have any Liability with respect to any collectively-bargained for benefit plans, whether or not subject to the provisions of ERISA.
(iib) Each Purchaser Company Benefit Plan in all material respects is and has been operated at all times in compliance with all applicable Laws in all material respects, including ERISA and the Code. Each Purchaser Company Benefit Plan which is intended to be “qualified” within the meaning of Section 401(a) of the Code (i) has been determined by the IRS to be so qualified (or is based on a prototype plan which has received a favorable opinion letter) during the period from its adoption to the date of this Agreement and (ii) is funded through a its related trust has been determined to be exempt from taxation under Section 501(a) of the CodeCode or the Target Companies have requested an initial favorable IRS determination of qualification and/or exemption within the period permitted by applicable Law. To the Knowledge of the PurchaserCompany’s Knowledge, no fact exists which that could adversely affect the qualified status of such Purchaser Company Benefit Plans or the exempt status of such trusts.
(iiic) With respect to each Purchaser Company Benefit PlanPlan that covers any current or former officer, director, consultant or employee (or beneficiary thereof) of a Target Company, the Purchaser Company has made available to the Seller Purchaser accurate and complete copies, if applicable, of: (i) all Purchaser Company Benefit Plan documents and agreements Plans and related trust agreements or annuity Contracts (including any amendments, modifications or supplements thereto); (ii) all summary plan descriptions and material modifications thereto; (iii) the three (3) most recent Forms 5500, if applicable, and annual report, including all schedules thereto; (iv) the most recent annual and periodic accounting of plan assets; (v) the three (3) most recent nondiscrimination testing reports; (vi) the most recent determination letter received from the IRS, if any; (vii) the most recent actuarial valuation; and (viii) all material written communications between the Purchaser or any Subsidiary or any Purchaser Benefit Plan and with any Governmental Authority and relating to a Purchaser Benefit Plan within six the last three (63) years preceding the date of this Agreementyears.
(ivd) With respect to each Purchaser Company Benefit Plan: (i) such Purchaser Benefit Plan to the Knowledge of the Company, no breach of fiduciary duty that could reasonably be expected to result in Liability to any Target Company has been administered and enforced in all material respects in accordance with its terms, the Code and ERISAoccurred; (ii) neither the Purchaser nor any Subsidiary nor any employee, officer or director thereof that is a fiduciary (under ERISA) with respect to such Purchaser Benefit Plan has breached any of its fiduciary responsibilities, obligations or duties imposed on it by ERISA; (iii) no Action is pending pending, or to the Company’s Knowledge, threatened in writing (other than routine claims for benefits arising in the ordinary course of administration); and (iviii) nothing has occurred with respect to any Purchaser Benefit Plan that has subjected the Purchaser or any Subsidiary to any material penalty under no prohibited transaction, as defined in Section 502 406 of ERISA or Section 4975 of the Code; and (v) all contributions and premiums due through the Closing Date have been made , has occurred that could reasonably be likely to result in all material respects as required under ERISA liability to any Target Company, excluding transactions effected pursuant to a statutory or have been fully accrued in all material respects on the Purchaser Financialsadministration exemption.
(ve) No Purchaser Benefit Plan isDuring the six (6) year period preceding the Effective Time, and neither the Purchaser or any Subsidiary no Target Company or any of their respective ERISA Affiliates sponsorshas maintained, maintains, contributes to, is required to contribute contributed to, or otherwise has or could reasonably be expected had an obligation to have any current or contingent Liability under or with respect to, contribute to (i) a “defined benefit plan” (as defined in Section 414(j) of the Code), (ii) a “multiemployer plan” (as defined in Section 3(37) of ERISA) or (iii) a “multiple employer plan” (as described in Section 413(c) of the Code) or ). No Company Benefit Plan is otherwise subject to Title IV of ERISA or Section 412 of the Code. To , and neither the PurchaserTarget Company nor any ERISA Affiliate has incurred any Liability, contingent or otherwise, under Title IV of ERISA and, to the Company’s Knowledge, no Purchaser condition presently exists that is expected to cause such Liability to be incurred. No Company Benefit Plan will become a multiple employer plan with respect to any Purchaser Entity Target Company immediately after the Closing Date. Neither the Purchaser nor any Subsidiary No Target Company currently maintains or has ever maintained, or is required currently or has ever been required to contribute to or otherwise participate in, a multiple employer welfare arrangement or voluntary employees’ beneficiary association as defined in Section 501(c)(9) of the Code.
(f) With respect to each Company Benefit Plan that is a “welfare plan” (as described in Section 3(1) of ERISA): (i) no such plan provides medical or death benefits with respect to current or former employees of a Target Company beyond their termination of employment (other than coverage mandated by Law); and (ii) there are no reserves, assets, surplus or prepaid premiums under any such plan. For purposes Each Target Company has complied in all material respects with the provisions of Section 601 et seq. of ERISA and Section 4980B of the Code.
(g) The consummation of the transactions contemplated by this Agreement and the Ancillary Documents will not, by itself: (i) entitle any individual to severance pay, unemployment compensation or other benefits or compensation or (ii) accelerate the time of payment or vesting, or increase the amount of any compensation due, or in respect of, any individual. No Target Company has incurred any Liability for any Tax imposed under Chapter 43 of the Code or civil liability under Section 502(i) or (l) of ERISA.
(h) Except to the extent required by Section 4980B of the Code or similar state Law, no Target Company provides health or welfare benefits to any former or retired employee or is obligated to provide such benefits to any active employee following such employee’s retirement or other termination of employment or service.
(i) Each Company Benefit Plan that is subject to Section 409A of the Code (each, a “Section 409A Plan”) has been administered in compliance, and is in documentary compliance, in each case in all material respects, with the applicable provisions of Section 409A of the Code, the regulations thereunder and other official guidance issued thereunder. There is no Contract or plan to which any Target Company is a party or by which it is bound to compensate any employee, consultant or director for any Taxes or interest imposed pursuant to Section 409A of the Code.
(j) The Company has made available to the Purchaser complete and accurate copies of the Company Equity Plan and forms of agreements used thereunder, and the stock option agreement evidencing the Company Non-Plan Option. Schedule 4.3(b) sets forth the beneficial and record owners of all outstanding Company Options and the Company Non-Plan Option as of the date of this Agreement (including the grant date, number and type of shares issuable thereunder, the exercise price, the expiration date and any vesting schedule).
(k) Each Company Option intended to qualify as an “incentive stock option” under the Code so qualifies. Each grant of a Company Option and Company Non-Plan Option was duly authorized no later than the date on which the grant of such Company Option or Company Non-Plan Option was by its terms to be effective by all necessary corporate action, and: (i) the stock option agreement governing such grant was duly executed and delivered by each party thereto (including electronic execution and delivery); (ii) each such grant was made in accordance with the terms of the Company Equity Plan (except for the Company Non-Plan Option) and all other applicable Laws; (iii) the per share exercise price of each Company Option and Company Non-Plan Option was equal or greater than the fair market value (within the meaning of Section 409A of the Code) of a share of Company Common Stock on the applicable grant date; and (iv) each such grant was properly accounted for in accordance with GAAP in the financial statements (including the related notes) of the Company.
(l) Each Foreign Pension Plan has been maintained in all material respects in compliance with its terms and with the requirements of all applicable Laws and has been maintained, where required, in good standing with applicable regulatory authorities. Each Target Company has complied in all material respects with the requirements of any Foreign Statutory Plan. As of the date of this Agreement, “ERISA Affiliate” means, all contributions required to be made with respect to a Foreign Pension Plan or a Foreign Statutory Plan have been timely made. As of the date of this Agreement, no Target Company has incurred any Personobligation in connection with the termination of, or withdrawal from, any Person Foreign Pension Plan or entity Foreign Statutory Plan. No Target Company located outside of the United States is an “own risk bearer” (eigen r▇▇▇▇▇ ▇▇▇▇▇▇) for any statutory social benefits. The present value of the accrued benefit liabilities (whether or not incorporatedvested) that is under common control or treated each Foreign Pension Plan, determined as one employer under Section 4001(b)(1) of ERISA or Section 414(b), (c), (m) or (o) of the Codeend of the Target Company’s most recently ended fiscal year on the basis of actuarial assumptions, each of which is reasonable, did not exceed the current value of the assets of such Foreign Pension Plan allocable to such benefit liabilities.
Appears in 1 contract
Benefit Plans. (ia) Set forth on Schedule 3.19(a4.19(a) is a true and complete list of each material Benefit Plan sponsored, administered or maintained by the Company for Company employees (excluding, for the avoidance of the Purchaser and its Subsidiaries doubt, any Benefit Plan sponsored, administered or maintained by any professional employer organization in which Company employees may participate pursuant to an agreement with such professional employer organization) (each, a “Purchaser Company Benefit Plan”). With respect to each Purchaser Company Benefit Plan, there are no funded benefit obligations for which contributions have not been materially made or properly accrued and there are no material unfunded benefit obligations that have not been accounted for by reserves, or otherwise properly footnoted in accordance with GAAP on the Purchaser Company Financials. Except as set forth on Schedule 3.19(a), neither the Purchaser nor any Subsidiary or The Company is not and has not in the past been a member of a “controlled group” for purposes of Section 414(b), (c), (m) or (o) of the Code other than with the Purchaser or another SubsidiaryCode, nor does the Purchaser or any Subsidiary Company have any Liability with respect to any collectively-bargained for plans, whether or not subject to the provisions of ERISA.
(iib) Each Purchaser Company Benefit Plan in all material respects is and has been operated at all times in compliance with all applicable Laws in all material respects, including ERISA and the Code. Each Purchaser Company Benefit Plan which is intended to be “qualified” within the meaning of Section 401(a) of the Code (i) has been determined by the IRS to be so qualified (or is based on a prototype plan which has received a favorable opinion letter) during the period from its adoption to the date of this Agreement and (ii) is funded through a its related trust has been determined to be exempt from taxation under Section 501(a) of the Code. To the Knowledge of the Purchaser, no fact exists which could adversely affect the qualified status of such Purchaser Benefit Plans Code or the exempt status Company has requested an initial favorable IRS determination of such trustsqualification or exemption within the period permitted by applicable Law.
(iiic) With respect to each Purchaser Company Benefit PlanPlan which covers any current or former officer, director, consultant or employee (or beneficiary thereof) of the Company, the Company has provided to Purchaser has made available to the Seller accurate and complete copies, if applicable, of: (i) all Purchaser Company Benefit Plan documents texts and agreements and related trust agreements or annuity Contracts (including any amendments, modifications or supplements thereto); (ii) all summary plan descriptions and material modifications thereto; (iii) the three (3) most recent Forms 5500, if applicable, and annual report, including all schedules thereto; (iv) the most recent annual and periodic accounting of plan assets; (v) the three (3) most recent nondiscrimination testing reports; (vi) the most recent determination letter received from the IRS, if any; (vii) the most recent actuarial valuation; and (viii) all material written communications between the Purchaser or any Subsidiary or any Purchaser Benefit Plan and with any Governmental Authority and relating to a Purchaser Benefit Plan within six (6) years preceding the date of this AgreementAuthority.
(ivd) With respect to each Purchaser Company Benefit Plan: (i) such Purchaser Company Benefit Plan has been administered and enforced in all material respects in accordance with its terms, the Code and ERISA; (ii) neither the Purchaser nor any Subsidiary nor any employee, officer or director thereof that is a no breach of fiduciary (under ERISA) with respect to such Purchaser Benefit Plan duty has breached any of its fiduciary responsibilities, obligations or duties imposed on it by ERISAoccurred; (iii) no Action is pending pending, or to the Company’s Knowledge, threatened in writing (other than routine claims for benefits arising in the ordinary course of administration); (iv) nothing has occurred with respect to any Purchaser Benefit Plan that has subjected the Purchaser or any Subsidiary to any material penalty under no prohibited transaction, as defined in Section 502 406 of ERISA or Section 4975 of the Code, has occurred, excluding transactions effected pursuant to a statutory or administration exemption; and (v) all contributions and premiums due through the Closing Date date hereof have been made in all material respects as required under ERISA or have been fully accrued in all material respects on the Purchaser Company Financials.
(ve) No Purchaser Company Benefit Plan is, and neither the Purchaser or any Subsidiary or any of their respective ERISA Affiliates sponsors, maintains, contributes to, is required to contribute to, or otherwise has or could reasonably be expected to have any current or contingent Liability under or with respect to, a “defined benefit plan” (as defined in Section 414(j) of the Code), a “multiemployer plan” (as defined in Section 3(37) of ERISA) or a “multiple employer plan” (as described in Section 413(c) of the Code) or is otherwise subject to Title IV of ERISA or Section 412 of the Code, and the Company has not incurred any Liability under Title IV of ERISA. To the Purchaser’s Knowledge, no Purchaser Benefit Plan will become a multiple employer plan with respect to any Purchaser Entity immediately after the Closing Date. Neither the Purchaser nor any Subsidiary The Company does not currently maintains or maintain and has ever never maintained, or and is not required currently or and has ever never been required to contribute to or otherwise participate in, a multiple employer welfare arrangement or voluntary employees’ beneficiary association as defined in Section 501(c)(9) of the Code. For purposes of this Agreement.
(f) Except as set forth on Schedule 4.19(f), “ERISA Affiliate” means, there is no arrangement under any Company Benefit Plan with respect to any Personemployee that would result in the payment of any amount that by operation of Sections 280G or 162(m) of the Code would not be deductible by the Company and no arrangement exists pursuant to which the Company will be required to “gross up” or otherwise compensate any person because of the imposition of any excise tax on a payment to such person.
(g) With respect to each Company Benefit Plan which is a “welfare plan” (as described in Section 3(1) of ERISA): (i) no such plan provides medical or death benefits with respect to current or former employees of the Company beyond their termination of employment (other than coverage mandated by Law, which is paid solely by such employees); and (ii) there are no reserves, assets, surplus or prepaid premiums under any such plan. The Company has complied in all material respects with the provisions of Section 601 et seq. of ERISA and Section 4980B of the Code.
(h) Except as set forth on Schedule 4.19(h), the consummation of the transactions contemplated by this Agreement and the Ancillary Documents will not: (i) entitle any individual to severance pay, unemployment compensation or other benefits or compensation; (ii) accelerate the time of payment or vesting, or increase the amount of any compensation due, or in respect of, any Person individual; or entity (whether iii) result in or satisfy a condition to the payment of compensation that would, in combination with any other payment, result in an “excess parachute payment” within the meaning of Section 280G of the Code. The Company has not incorporated) that is incurred any Liability for any Tax imposed under common control Chapter 43 of the Code or treated as one employer civil liability under Section 4001(b)(1) of ERISA or Section 414(b), (c), (m502(i) or (ol) of ERISA.
(i) Except to the extent required by Section 4980B of the Code or similar state Law, the Company does not provide health or welfare benefits to any former or retired employee or is obligated to provide such benefits to any active employee following such employee’s retirement or other termination of employment or service.
(j) Each Company Benefit Plan that is subject to Section 409A of the Code (each, a “Section 409A Plan”) as of the Closing Date is indicated as such on Schedule 4.19(j). Each Section 409A Plan has been administered in compliance, and is in documentary compliance, with the applicable provisions of Section 409A of the Code, the regulations thereunder and other official guidance issued thereunder. The Company does not have any obligation to any employee or other service provider with respect to any Section 409A Plan that may be subject to any Tax under Section 409A of the Code. No payment to be made under any Section 409A Plan is, or to the Knowledge of the Company will be, subject to the penalties of Section 409A(a)(1) of the Code. There is no Contract or plan to which any the Company is a party or by which it is bound to compensate any employee, consultant or director for penalty taxes paid pursuant to Section 409A of the Code.
Appears in 1 contract
Benefit Plans. (ia) Set Section 3.11(a) of the Seller Disclosure Schedule sets forth on Schedule 3.19(a) is a true and complete list of each material Benefit Plan of that covers any Business Employee who provides services primarily to the Purchaser and its Subsidiaries (each, a “Purchaser Benefit Plan”)Business. With respect to each Purchaser Benefit Plan, there are no funded benefit obligations for which contributions have not been materially Seller has made or properly accrued available to Purchaser complete and there are no material unfunded benefit obligations that have not been accounted for by reserves, or otherwise properly footnoted in accordance with GAAP on the Purchaser Financials. Except as set forth on Schedule 3.19(a), neither the Purchaser nor any Subsidiary or has in the past been a member of a “controlled group” for purposes of Section 414(b), (c), (m) or (o) correct copies of the Code other than with current plan document (or a written description of material terms if no plan document exists) and, if required by applicable Law, the Purchaser or another Subsidiary, nor does the Purchaser or any Subsidiary have any Liability with respect to any collectively-bargained for plans, whether or not subject to the provisions of ERISA.
(ii) Benefit Plan’s summary plan description. Each Purchaser Benefit Plan and, if applicable, related trust has been established, maintained, funded and administered in all material respects is and has been operated in compliance with all applicable Laws complies in all material respects, with respect to any Business Employee, with its terms and all applicable Laws (including ERISA and and, the Code). Each Purchaser Benefit Plan which that is intended to be “qualified” within the meaning of qualified under Section 401(a) of the Code (ia “Qualified Benefit Plan”) has been determined by the IRS to be so qualified (or is based on a prototype plan which has received a favorable determination letter from the Internal Revenue Service, or with respect to a prototype or volume submitter plan, can rely on an opinion letter) during letter from the period from its adoption Internal Revenue Service to the date prototype or volume submitter plan sponsor, in each case a copy of this Agreement which has been made available to Purchaser, to the effect that such Qualified Benefit Plan is so qualified and (ii) is funded through a that the plan and the trust related thereto are exempt from taxation federal income Taxes under Sections 401(a) and 501(a), respectively, of the Code, and nothing has occurred that could reasonably be expected to cause the revocation of such determination letter from the Internal Revenue Service or the unavailability of reliance on such opinion letter from the Internal Revenue Service, as applicable or otherwise adversely affect the qualification of such Benefit Plan. With respect to any Benefit Plan and any Business Employee, to the knowledge of Seller, no event has occurred or is reasonably expected to occur that has resulted in or would subject Seller to a Tax under Section 501(a4971 of the Code. No event has occurred that would subject the Transferred Assets to a lien under Section 430(k) of the Code. To the Knowledge of the PurchaserAll contributions, no fact exists which could adversely affect the qualified status of such Purchaser Benefit Plans or the exempt status of such trusts.
(iii) With respect to each Purchaser Benefit Plandistributions, the Purchaser has made available to the Seller accurate reimbursements and complete copies, if applicable, of: (i) all Purchaser Benefit Plan documents and agreements and related trust agreements or annuity Contracts (including any amendments, modifications or supplements thereto); (ii) all summary plan descriptions and material modifications thereto; (iii) the three (3) most recent Forms 5500, if applicable, and annual report, including all schedules thereto; (iv) the most recent annual and periodic accounting of plan assets; (v) the three (3) most recent nondiscrimination testing reports; (vi) the most recent determination letter received from the IRS, if any; (vii) the most recent actuarial valuation; and (viii) all material written communications between the Purchaser or any Subsidiary or any Purchaser Benefit Plan and any Governmental Authority and relating to a Purchaser Benefit Plan within six (6) years preceding the date of this Agreement.
(iv) With respect to each Purchaser Benefit Plan: (i) such Purchaser Benefit Plan has been administered and enforced in all material respects in accordance with its terms, the Code and ERISA; (ii) neither the Purchaser nor any Subsidiary nor any employee, officer or director thereof that is a fiduciary (under ERISA) with respect to such Purchaser Benefit Plan has breached any of its fiduciary responsibilities, obligations or duties imposed on it by ERISA; (iii) no Action is pending or threatened in writing (other than routine claims for benefits arising in the ordinary course of administration); (iv) nothing has occurred premium payments due with respect to any Purchaser Business Employee under or pursuant to each Benefit Plan that has subjected prior to the Purchaser or any Subsidiary to any material penalty under Section 502 of ERISA or Section 4975 Closing will have been timely made as of the Code; and (v) all contributions and premiums due through the Closing Date have been made in all material respects as required under ERISA or have been fully accrued in all material respects on the Purchaser FinancialsClosing.
(vb) No Purchaser Benefit Plan is, and neither the Purchaser or any Subsidiary or Seller nor any of their respective ERISA its Affiliates sponsors, maintains, contributes to, is required to contribute to, or otherwise has or could reasonably be expected to have any current or contingent Liability liability or obligation under or with respect to, : (i) a “defined benefit plan” (as defined in plan that is or subject to the minimum funding standards of Section 414(j) 302 of ERISA or Section 412 of the Code), ; or (ii) a “multiemployer multi-employer plan” (as defined in Section 3(37) of ERISA). Neither Seller nor any of its Affiliates has: (A) withdrawn from any pension plan under circumstances resulting (or expected to result) in liability; or (B) engaged in any transaction which would give rise to a liability under Section 4069 or Section 4212(c) of ERISA.
(c) Except as set forth on Section 3.11(c) of the Seller Disclosure Schedule attached hereto and other than as required under Section 4980B of the Code or other similar applicable Law and for which the beneficiary pays the full premium cost, no Benefit Plan provides for any Business Employee benefits or coverage in the nature of health, life or disability insurance following retirement or other termination of employment or service (other than death benefits when termination occurs upon death).
(d) Except as set forth on Section 3.11(d) attached hereto, no Benefit Plan exists that could: (i) result in the payment to any Business Employee, director or consultant of the Business of any money or other property; or (ii) accelerate the payment, vesting of or provide any additional rights or benefits (including funding of compensation or benefits through a trust or otherwise) to any Business Employee, director or consultant of the Business, in each case, as a result of the execution of this Agreement or the consummation of the transactions contemplated hereby.
(e) The execution of this Agreement and the consummation of the transactions contemplated hereby, will not (alone or in conjunction with any other event) (i) result in any material payment becoming due to any Business Employee or Former Business Employee under any Benefit Plan or otherwise, (ii) materially increase any benefits or compensation otherwise payable to any Business Employee or Former Business Employee under any Benefit Plan or otherwise, or (iii) result in the acceleration of time of payment or vesting of, or require the material funding of, any such benefits or compensation.
(f) Each Benefit Plan that is a “multiple employer nonqualified deferred compensation plan” (within the meaning of Section 409A of the Code) complies with respect to the Business Employees in all material respects with the requirements of Section 409A of the Code and the regulations thereunder by its terms and has been operated with respect to the Business Employees in all material respects in accordance with such requirements such that no material additional Taxes are due with respect to any such arrangement under Section 409A of the Code.
(g) The Company is not a party to, nor is otherwise obligated under, any plan, policy, agreement or arrangement that provides for the gross-up or reimbursement of Taxes imposed under Section 409A or 4999 of the Code (or any corresponding provisions of state, local 19 or foreign Taxes). No amount or other entitlement that could be received as described a result of the transactions contemplated hereby (alone or in conjunction with any other event, including any termination of employment) by any “disqualified individual” (as defined in Section 413(c280G(c) of the Code) or is otherwise subject to Title IV of ERISA or Section 412 of the Code. To the Purchaser’s Knowledge, no Purchaser Benefit Plan will become a multiple employer plan with respect to any Purchaser Entity immediately after the Closing Date. Neither the Purchaser nor any Subsidiary currently maintains or has ever maintained, or is required currently or has ever been required to contribute to or otherwise participate in, a multiple employer welfare arrangement or voluntary employees’ beneficiary association Company will constitute an “excess parachute payment” (as defined in Section 501(c)(9280G(b)(1) of the Code. For purposes of this Agreement, “ERISA Affiliate” means, with respect to any Person, any Person or entity (whether or not incorporated) that is under common control or treated as one employer under Section 4001(b)(1) of ERISA or Section 414(b), (c), (m) or (o) of the Code.
Appears in 1 contract
Sources: Unit Purchase Agreement
Benefit Plans. (ia) Set forth on Schedule 3.19(a) is Except as has not had and would not reasonably be expected to result in a true and complete list of Liability material to the Target Companies in the United States, taken as a whole, with respect to each material Benefit Plan of the Purchaser and its Subsidiaries a Target Company (each, each a “Purchaser Company Benefit Plan”). With respect to each Purchaser Benefit Plan, there are no funded benefit obligations for which contributions have not been materially made or properly accrued and there are no material unfunded benefit obligations that have not been accounted for by reserves, or otherwise properly footnoted in accordance with GAAP on the Purchaser Company Financials. Except as set forth on Schedule 3.19(a), neither the Purchaser nor any Subsidiary No Target Company is or has in the past been a member of a “controlled group” for purposes of Section 414(b), (c), (m) or (o) of the Code other than with the Purchaser or another SubsidiaryCode, nor does the Purchaser or any Subsidiary Target Company have any Liability with respect to any collectively-bargained for plans, whether or not subject to the provisions of ERISA.
(iib) Each Purchaser Except as has not had and would not reasonably be expected to result in a Liability material to the Target Companies, taken as a whole, each Company Benefit Plan in all material respects is and has been operated at all times in compliance with all applicable Laws in all material respects, including ERISA and the Code. Each Purchaser Company Benefit Plan which is intended to be “qualified” within the meaning of Section 401(a) of the Code (i) has been determined by the IRS to be so qualified (or is based on a prototype plan which has received a favorable opinion letter) during the period from its adoption to the date of this Agreement and (ii) is funded through a its related trust has been determined to be exempt from taxation under Section 501(a) of the CodeCode or the Target Companies have requested an initial favorable IRS determination of qualification and/or exemption within the period permitted by applicable Law. To the Knowledge of the PurchaserCompany, no fact exists which could would reasonably be expected to materially and adversely affect the qualified status of such Purchaser Company Benefit Plans or the exempt status of such trusts.
(iiic) With Except as has not had and would not reasonably be expected to result in a Liability material to the Target Companies, taken as a whole, with respect to each Purchaser Benefit Plan, the Purchaser has made available to the Seller accurate and complete copies, if applicable, of: (i) all Purchaser Benefit Plan documents and agreements and related trust agreements or annuity Contracts (including any amendments, modifications or supplements thereto); (ii) all summary plan descriptions and material modifications thereto; (iii) the three (3) most recent Forms 5500, if applicable, and annual report, including all schedules thereto; (iv) the most recent annual and periodic accounting of plan assets; (v) the three (3) most recent nondiscrimination testing reports; (vi) the most recent determination letter received from the IRS, if any; (vii) the most recent actuarial valuation; and (viii) all material written communications between the Purchaser or any Subsidiary or any Purchaser Benefit Plan and any Governmental Authority and relating to a Purchaser Benefit Plan within six (6) years preceding the date of this Agreement.
(iv) With respect to each Purchaser Company Benefit Plan: (i) such Purchaser Company Benefit Plan has been administered and enforced in all material respects in accordance with its terms, and all applicable Law, including the Code and ERISA; (ii) neither the Purchaser nor any Subsidiary nor any employee, officer or director thereof that is a no breach of fiduciary (under ERISA) with respect to such Purchaser Benefit Plan duty has breached any of its fiduciary responsibilities, obligations or duties imposed on it by ERISAoccurred; (iii) no Action is pending pending, or to the Company’s Knowledge, threatened in writing (other than routine claims for benefits arising in the ordinary course of administration); (iv) nothing has occurred with respect to any Purchaser Benefit Plan that has subjected the Purchaser or any Subsidiary to any material penalty under no prohibited transaction, as defined in Section 502 406 of ERISA or Section 4975 of the Code, has occurred, excluding transactions effected pursuant to a statutory or administration exemption; and (v) all contributions and premiums due through the Closing Date have been made in all material respects as required under ERISA or have been fully accrued in all material respects in accordance with GAAP on the Purchaser Company Financials.
(vd) No Purchaser Company Benefit Plan is, and neither the Purchaser or any Subsidiary or any of their respective ERISA Affiliates sponsors, maintains, contributes to, is required to contribute to, or otherwise has or could reasonably be expected to have any current or contingent Liability under or with respect to, a “defined benefit plan” (as defined in Section 414(j) of the Code), a “multiemployer plan” (as defined in Section 3(37) of ERISA) or a “multiple employer plan” (as described in Section 413(c) of the Code) or is otherwise subject to Title IV of ERISA or Section 412 of the Code, and no Target Company has incurred any Liability or otherwise could have any Liability, contingent or otherwise, under Title IV of ERISA and no condition presently exists that is expected to cause such Liability to be incurred. To the Purchaser’s Knowledge, no Purchaser No Company Benefit Plan will become a multiple employer plan with respect to any Purchaser Entity Target Company immediately after the Closing Date. Neither the Purchaser nor any Subsidiary No Target Company currently maintains or has ever maintained, or is required currently or has ever been required to contribute to or otherwise participate in, a multiple employer welfare arrangement or voluntary employees’ beneficiary association as defined in Section 501(c)(9) of the Code. For purposes of this Agreement.
(e) Except as has not had and would not reasonably be expected to result in a Liability material to the Target Companies, “ERISA Affiliate” meanstaken as a whole, with respect to any Person, any Person or entity each Company Benefit Plan which is a “welfare plan” (whether or not incorporated) that is under common control or treated as one employer under described in Section 4001(b)(13(1) of ERISA): (i) no such plan provides medical or death benefits with respect to current or former employees of a Target Company beyond their termination of employment (other than coverage mandated by Law, which is paid solely by such employees); and (ii) there are no reserves, assets, surplus or prepaid premiums under any such plan. Each Target Company has complied with the provisions of Section 601 et seq. of ERISA or and Section 414(b), (c), (m) or (o) 4980B of the Code.
(f) Except as has not had and would not reasonably be expected to result in a Liability material to the Target Companies, taken as a whole, the consummation of the transactions contemplated by this Agreement and the Ancillary Documents will not: (i) entitle any individual to severance pay, unemployment compensation or other benefits or compensation; or (ii) accelerate the time of payment or vesting, or increase the amount of any compensation due, or in respect of, any individual.
(g) Except as has not had and would not reasonably be expected to result in a Liability material to the Target Companies, taken as a whole, (i) each Company Benefit Plan that is subject to Section 409A of the Code (each, a “Section 409A Plan”) as of the Closing Date has been administered in material compliance, and is in documentary compliance in all material respects, with the applicable provisions of Section 409A of the Code, the regulations thereunder; and other official guidance issued thereunder; and (ii) there is no Contract or plan to which any Target Company is a party or by which it is bound to compensate any employee, consultant or director for penalty taxes paid or liability incurred pursuant to Section 409A of the Code.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Alberton Acquisition Corp)
Benefit Plans. (ia) Set Schedule 4.11 sets forth on Schedule 3.19(a) is a true and complete list of each material Benefit Plan of the Purchaser and its Subsidiaries (each, a “Purchaser Benefit LED Employee Plan”). With respect to each Purchaser Benefit Plan, there are no funded benefit obligations for which contributions have not been materially made or properly accrued and there are no material unfunded benefit obligations that have not been accounted for by reserves, or otherwise properly footnoted in accordance with GAAP on the Purchaser Financials. Except as set forth on Schedule 3.19(a), neither the Purchaser nor any Subsidiary or has in the past been a member of a “controlled group” for purposes of Section 414(b), (c), (m) or (o) of the Code other than with the Purchaser or another Subsidiary, nor does the Purchaser or any Subsidiary have any Liability with respect to any collectively-bargained for plans, whether or not subject to the provisions of ERISA.
(iib) Each Purchaser Benefit Plan in all material respects is and has been operated in compliance with all applicable Laws in all material respects, including ERISA and the Code. Each Purchaser Benefit Plan which is intended to be “qualified” within the meaning of Section 401(a) of the Code (i) has been determined by the IRS to be so qualified (or is based on a prototype plan which has received a favorable opinion letter) during the period from its adoption to the date of this Agreement and (ii) is funded through a trust exempt from taxation under Section 501(a) of the Code. To the Knowledge of the Purchaser, no fact exists which could adversely affect the qualified status of such Purchaser Benefit Plans or the exempt status of such trusts.
(iii) With respect to each Purchaser Benefit Plan, the Purchaser has made available to the Seller accurate and complete copies, if applicable, of: (i) all Purchaser Benefit Plan documents and agreements and related trust agreements or annuity Contracts (including any amendments, modifications or supplements thereto); (ii) all summary plan descriptions and material modifications thereto; (iii) the three (3) most recent Forms 5500, if applicable, and annual report, including all schedules thereto; (iv) the most recent annual and periodic accounting of plan assets; (v) the three (3) most recent nondiscrimination testing reports; (vi) the most recent determination letter received from the IRS, if any; (vii) the most recent actuarial valuation; and (viii) all material written communications between the Purchaser or any Subsidiary or any Purchaser Benefit Plan and any Governmental Authority and relating to a Purchaser Benefit Plan within six (6) years preceding the date of this Agreement.
(iv) With respect to each Purchaser Benefit Plan: (i) such Purchaser Benefit LED Employee Plan has been established, operated and administered and enforced in all material respects in accordance with its terms, and each such LED Employee Plan is in material compliance with all applicable Laws. All contributions (including all employer contributions and employee salary reduction contributions) and premiums required to have been paid by LED to any LED Employee Plan under the Code terms of any such LED Employee Plan or its related trust, insurance contract or other funding arrangement, or pursuant to any applicable law have been paid within the time prescribed by any such LED Employee Plan, trust, contract or arrangement, or applicable Law. All contributions and premiums for any period ending on or before the Closing Date that are not yet due have been made to each such LED Employee Plan or its related trust, insurance contract or other funding arrangement.
(c) No LED Employee Plan is (i) a “multiple employer plan” for purposes of Sections 4063 or 4064 of ERISA; , (ii) neither subject to Section 412 of the Purchaser nor any Subsidiary nor any employeeCode or Section 302 or Title IV of ERISA, officer or director thereof that is a fiduciary (under ERISA) with respect to such Purchaser Benefit Plan has breached any of its fiduciary responsibilities, obligations or duties imposed on it by ERISA; (iii) no Action is pending or threatened in writing (other than routine claims for benefits arising in the ordinary course of administration); (iv) nothing has occurred with respect to any Purchaser Benefit Plan that has subjected the Purchaser or any Subsidiary to any material penalty under Section 502 of ERISA or Section 4975 of the Code; and (v) all contributions and premiums due through the Closing Date have been made in all material respects as required under ERISA or have been fully accrued in all material respects on the Purchaser Financials.
(v) No Purchaser Benefit Plan is, and neither the Purchaser or any Subsidiary or any of their respective ERISA Affiliates sponsors, maintains, contributes to, is required to contribute to, or otherwise has or could reasonably be expected to have any current or contingent Liability under or with respect to, a “defined benefit plan” (as defined in Section 414(j) of the Code), a “multiemployer plan” (as defined in within the meaning of Section 3(374001(a)(3) of ERISA), (iv) or a “multiple employer plan” (as described in intended to satisfy the requirements of Section 413(c403(a) of the Code) or is otherwise subject to Title IV of ERISA or Section 412 of the Code. To the Purchaser’s Knowledge, no Purchaser Benefit Plan will become a multiple employer plan with respect to any Purchaser Entity immediately after the Closing Date. Neither the Purchaser nor any Subsidiary currently maintains or has ever maintained, or is required currently or has ever been required (v) intended to contribute to or otherwise participate in, a multiple employer welfare arrangement or voluntary employees’ beneficiary association as defined in Section 501(c)(9) of the Code. For purposes of this Agreement, “ERISA Affiliate” means, with respect to any Person, any Person or entity (whether or not incorporated) that is under common control or treated as one employer be qualified under Section 4001(b)(1) of ERISA or Section 414(b), (c), (m) or (o401(a) of the Code.
(d) Neither LED nor any LED ERISA Affiliate has incurred any liability (including as a result of any indemnification obligation) under Title I or Title IV of ERISA for which LED could be liable. No event has occurred, no condition exists, and there are no pending or, to the Knowledge of LED, threatened claims by or on behalf of any LED Employee Plan by any person covered thereby (other than ordinary claims for benefits submitted by participants or beneficiaries) or any Governmental Authority that would subject LED, either directly or by reason of affiliation with an LED ERISA Affiliate, to any material Tax, fine, Encumbrance, or other liability imposed by ERISA, the Code or other applicable Law. No asset of LED is subject to any Encumbrance under ERISA or the Code.
(e) With respect to each LED Employee Plan, LED has provided or made available to LSG true and complete copies of: (i) such LED Employee Plan, if written, or a description of such LED Employee Plan, if not written, and (ii) to the extent applicable to such LED Employee Plan: all trust agreements, insurance contracts or other funding arrangements; the three most recent Forms 5500 required to have been filed with the IRS and all schedules thereto; all current summary plan descriptions, all material communications received from or sent to the IRS or the Department of Labor (including a written description of any oral communication); and all amendments and modifications to any such document.
(f) No LED Employee Plan exists that could result in the payment to any Continued Employee of any money or other property (including any severance payments, bonus of other compensation) or in the acceleration of any other rights or benefits to any Continued Employee as a result of the transactions contemplated herein.
Appears in 1 contract
Sources: Exchange and Contribution Agreement (LED Holdings, LLC)
Benefit Plans. (ia) Set forth on Schedule 3.19(a4.19(a) is a true and complete list of each material Benefit Plan of the Purchaser and its Subsidiaries a Target Company (each, a “Purchaser Company Benefit Plan”). With respect to each Purchaser Company Benefit Plan, there are no funded benefit obligations for which contributions have not been materially made or properly accrued and there are no material unfunded benefit obligations that have not been accounted for by reserves, or otherwise properly footnoted in accordance with GAAP on the Purchaser Company Financials. Except as set forth on Schedule 3.19(a), neither the Purchaser nor any Subsidiary No Target Company is or has in the past been a member of a “controlled group” for purposes of Section 414(b), (c), (m) or (o) of the Code other than with the Purchaser or another SubsidiaryCode, nor does the Purchaser or any Subsidiary Target Company have any Liability with respect to any collectively-bargained for plans, whether or not subject to the provisions of ERISA.
(iib) Each Purchaser Company Benefit Plan in all material respects is and has been operated operated, administered, and funded at all times in compliance with all applicable Laws in all material respects, including including, but not limited to, ERISA and the Code. Each Purchaser Company Benefit Plan which is intended to be “qualified” within the meaning of Section 401(a) of the Code (i) has been determined by the IRS to be so qualified (or is based on a prototype plan which has received a favorable opinion letter) during the period from its adoption to the date of this Agreement and (ii) is funded through a its related trust has been determined to be exempt from taxation under Section 501(a) of the CodeCode or the Target Companies have requested an initial favorable IRS determination of qualification and/or exemption within the period permitted by applicable Law. To the Knowledge of the PurchaserCompany’s Knowledge, no fact exists which could adversely affect the qualified status of such Purchaser Company Benefit Plans or the exempt status of such trusts.
(iiic) With respect to each Purchaser Company Benefit PlanPlan which covers any current or former officer, director, consultant or employee (or beneficiary thereof) of a Target Company, the Company has provided to Purchaser has made available to the Seller accurate and complete copies, if applicable, of: (i) all Purchaser Company Benefit Plan documents and agreements and related trust agreements or annuity Contracts (including any amendments, modifications or supplements thereto); (ii) all summary plan descriptions and summary of material modifications thereto; (iii) the three (3) most recent Forms 5500, if applicable, and annual report, including all schedules thereto; (iv) the most recent annual and periodic accounting of plan assets; (v) the three (3) most recent nondiscrimination testing reports; (vi) the most recent determination letter received from the IRS, if any; (vii) the most recent actuarial valuation; and (viii) all material written communications between the Purchaser or any Subsidiary or any Purchaser Benefit Plan and with any Governmental Authority and relating to a Purchaser Benefit Plan within six the last three (63) years preceding the date of this Agreementyears.
(ivd) With respect to each Purchaser Company Benefit Plan: (i) such Purchaser Company Benefit Plan has been administered and enforced in all material respects in accordance with its terms, the Code and ERISA; (ii) neither the Purchaser nor any Subsidiary nor any employee, officer or director thereof that is a no breach of fiduciary (under ERISA) with respect to such Purchaser Benefit Plan duty has breached any of its fiduciary responsibilities, obligations or duties imposed on it by ERISAoccurred; (iii) no Action is pending pending, or to the Company’s Knowledge, threatened in writing (other than routine claims for benefits arising in the ordinary course of administration); (iv) nothing has occurred with respect to any Purchaser Benefit Plan that has subjected the Purchaser or any Subsidiary to any material penalty under no prohibited transaction, as defined in Section 502 406 of ERISA or Section 4975 of the Code, has occurred, excluding transactions effected pursuant to a statutory or administration exemption; and (v) all contributions and premiums due through the Closing Date have been made in all material respects as required under ERISA or have been fully accrued in all material respects on the Purchaser Company Financials.
(ve) No Purchaser Company Benefit Plan is, and neither the Purchaser or any Subsidiary or any of their respective ERISA Affiliates sponsors, maintains, contributes to, is required to contribute tocurrently, or otherwise has or could is reasonably be expected to have any current or contingent Liability under or with respect tobecome, a “defined benefit plan” (as defined in Section 414(j) of the Code), a “multiemployer plan” (as defined in Section 3(37) of ERISA) or a “multiple employer plan” (as described in Section 413(c) of the Code) or is otherwise subject to Title IV of ERISA or Section 412 of the Code, and no Target Company has incurred any Liability or otherwise could have any Liability, contingent or otherwise, under Title IV of ERISA and no condition presently exists that is expected to cause such Liability to be incurred. To the Purchaser’s Knowledge, no Purchaser No Company Benefit Plan will become a multiple employer plan with respect to any Purchaser Entity Target Company immediately after the Closing Date. Neither the Purchaser nor any Subsidiary No Target Company currently maintains or has ever maintained, or is required currently or has ever been required to contribute to or otherwise participate in, a multiple employer welfare arrangement or voluntary employees’ beneficiary association as defined in Section 501(c)(9) of the Code.
(f) No arrangement exists pursuant to which a Target Company will be required to “gross up” or otherwise compensate any person because of the imposition of any excise Tax on a payment to such person.
(g) With respect to each Company Benefit Plan which is a “welfare plan” (as described in Section 3(1) of ERISA): (i) no such plan provides medical or death benefits with respect to current or former employees of a Target Company beyond their termination of employment (other than coverage mandated by Law, which is paid solely by such employees); and (ii) there are no reserves, assets, surplus or prepaid premiums under any such plan. For purposes Each Target Company has complied in all material respects with the provisions of Section 601 et seq. of ERISA and Section 4980B of the Code.
(h) Except as set forth on Schedule 4.19(h), the consummation of the transactions contemplated by this AgreementAgreement and the Ancillary Documents will not: (i) entitle any individual to severance pay, unemployment compensation or other benefits or compensation (except as set forth on Schedule 4.19(a)); (ii) accelerate the time of payment or vesting, or increase the amount of any compensation due, or in respect of, any individual; or (iii) result in or satisfy a condition to the payment of compensation that would, in combination with any other payment, result in an “ERISA Affiliateexcess parachute payment” meanswithin the meaning of Section 280G of the Code. No Target Company has incurred any Liability for any Tax imposed under Chapter 43 of the Code or civil liability under Section 502(i) or (l) of ERISA.
(i) All Company Benefit Plans can be terminated at any time prior to the Closing Date without resulting in any Liability to the Surviving Corporation or Purchaser or their respective Affiliates for any additional contributions, penalties, premiums, fees, fines, excise Taxes or any other charges or liabilities.
(j) Each Company Benefit Plan that is subject to Section 409A of the Code (each, a “Section 409A Plan”) as of the Closing Date is indicated as such on Schedule 4.19(j). No options or other equity-based awards have been issued or granted by the Company that are, or are subject to, a Section 409A Plan. Each Section 409A Plan has been administered in compliance, and is in documentary compliance, in all material respects, with the applicable provisions of Section 409A of the Code, the regulations thereunder and other official guidance issued thereunder. No Target Company has any obligation to any employee or other service provider with respect to any Person, Section 409A Plan that may be subject to any Person or entity (whether or not incorporated) that is under common control or treated as one employer Tax under Section 4001(b)(1) 409A of ERISA the Code. No payment to be made under any Section 409A Plan is, or to the Knowledge of the Company will be, subject to the penalties of Section 414(b), (c), (m) or (o409A(a)(1) of the Code. There is no Contract or plan to which any Target Company is a party or by which it is bound to compensate any employee, consultant or director for penalty Taxes paid pursuant to Section 409A of the Code.
Appears in 1 contract
Benefit Plans. (ia) Set forth on Schedule 3.19(a5.19(a) is a true and complete list of each material Benefit Plan of the Purchaser and its Subsidiaries a Target Company (each, a “Purchaser Company Benefit Plan”). With respect to each Purchaser Company Benefit Plan, there are no funded benefit obligations for which contributions have not been materially made or properly accrued and there are no material unfunded benefit obligations that have not been accounted for by reserves, or otherwise properly footnoted in accordance with GAAP on the Purchaser Company Financials. Except as set forth on Schedule 3.19(a), neither the Purchaser nor any Subsidiary No Target Company is or has in the past been a member of a “controlled group” for purposes of Section 414(b), (c), (m) or (o) of the Code other than with the Purchaser or another SubsidiaryCode, nor does the Purchaser or any Subsidiary Target Company have any Liability with respect to any collectively-bargained for plans, whether or not subject to the provisions of ERISA. No statement, either written or oral, has been made by any Target Company to any Person with regard to any Company Benefit Plan that was not in accordance with the Company Benefit Plan in any material respect.
(iib) Each Purchaser Except as set forth on Schedule 5.19(b), each Company Benefit Plan in all material respects is and has been operated at all times in compliance with all applicable Laws in all material respects, including ERISA and the Code. Each Purchaser Company Benefit Plan which is intended to be “qualified” within the meaning of Section 401(a) of the Code (i) has been determined by the IRS to be so qualified (or is based on a prototype plan which has received a favorable opinion letter) during the period from its adoption to the date of this Agreement and (ii) is funded through a its related trust has been determined to be exempt from taxation under Section 501(a) of the CodeCode or the Target Companies have requested an initial favorable IRS determination of qualification and/or exemption within the period permitted by applicable Law. To the Knowledge of the Purchaser, no No fact exists which could adversely affect the qualified status of such Purchaser Company Benefit Plans or the exempt status of such trusts.
(iiic) With respect to each Purchaser Company Benefit Plan, the Purchaser Company has made available provided to the Seller SPAC accurate and complete copies, if applicable, of: (i) all Purchaser Company Benefit Plan documents texts and agreements and related trust agreements or annuity Contracts (including any amendments, modifications or supplements thereto); ) or an accurate written summary of any Company Benefit Plan which is unwritten, (ii) all summary plan descriptions and material modifications thereto; , (iii) the three (3) most recent Forms 5500, if applicable, and annual report, including all schedules thereto; , (iv) the most recent annual and periodic accounting of plan assets; , (v) the three (3) most recent nondiscrimination testing reports; , (vi) the most recent determination letter received from the IRS, if any; , (vii) the most recent actuarial valuation; , and (viii) all material written communications between the Purchaser or any Subsidiary or any Purchaser Benefit Plan and with any Governmental Authority and relating to a Purchaser Benefit Plan within six (6) years preceding the date of this AgreementAuthority.
(ivd) With Except as set forth on Schedule 5.19(d), with respect to each Purchaser Company Benefit Plan: (i) such Purchaser Company Benefit Plan has been administered and enforced in all material respects in accordance with its termsterms and all applicable Laws, including the Code and ERISA; , (ii) neither the Purchaser nor no breach of fiduciary duty that could reasonably be expected to result in Liability to any Subsidiary nor any employeeTarget Company has occurred, officer or director thereof that is a fiduciary (under ERISA) with respect to such Purchaser Benefit Plan has breached any of its fiduciary responsibilities, obligations or duties imposed on it by ERISA; (iii) no Action is pending pending, or to the Company’s Knowledge, threatened in writing (other than routine claims for benefits arising in the ordinary course of administration); , (iv) nothing has occurred with respect to any Purchaser Benefit Plan that has subjected the Purchaser or any Subsidiary to any material penalty under no prohibited transaction, as defined in Section 502 406 of ERISA or Section 4975 of the Code, has occurred that could reasonably be likely to result in Liability to any Target Company, excluding transactions effected pursuant to a statutory or administration exemption; (v) no filing has been made with respect to any Company Benefit Plan under any voluntary correction program; (vi) there has been no amendment to, written interpretation or announcement (whether or not written) by any Target Company relating to, any change in participation or coverage under, any Company Benefit Plan that would materially increase the expense of maintaining such Company Benefit Plan above the level of expense incurred with respect to such Company Benefit Plan for the most recent full fiscal year included in the Company Financials; and (vvii) all contributions and premiums due through the Closing Date have been made in all material respects as required under all applicable Laws, including the Code and ERISA or have been fully accrued in all material respects on the Purchaser Company Financials.
(ve) No Purchaser Benefit Plan isDuring the six (6) year period preceding the Effective Time, and neither the Purchaser or any Subsidiary no Target Company or any of their respective ERISA Affiliates sponsorshas maintained, maintains, contributes contributed to, is required sponsored, had an obligation to contribute toto or any Liability, whether absolute or otherwise has or could reasonably be expected to have any current or contingent Liability under or contingent, with respect to, to (i) a “defined benefit plan” (as defined in Section 414(j) of the Code), (ii) a “multiemployer plan” (as defined in Section 3(37) of ERISA) or (iii) a “multiple employer plan” (as described in Section 413(c) of the Code) or ). No Company Benefit Plan is otherwise subject to Title IV of ERISA or Section 412 of the Code, and neither the Target Company nor any ERISA Affiliate has incurred any Liability or otherwise could have any Liability, contingent or otherwise, under Title IV of ERISA and no condition presently exists that is expected to cause such Liability to be incurred. To the Purchaser’s Knowledge, no Purchaser No Company Benefit Plan will become a multiple employer plan with respect to any Purchaser Entity Target Company immediately after the Closing Date. Neither the Purchaser nor any Subsidiary No Target Company currently maintains or has ever maintained, or is required currently or has ever been required to contribute to or otherwise participate in, a multiple employer welfare arrangement or voluntary employees’ beneficiary association as defined in Section 501(c)(9) of the Code. For purposes of this Agreement, “ERISA Affiliate” means, .
(f) There is no arrangement under any Company Benefit Plan with respect to any Personemployee that would result in the payment of any amount that by operation of Sections 280G or 162(m) of the Code would not be deductible by the Target Companies and no arrangement exists pursuant to which a Target Company will be required to “gross up” or otherwise compensate any person because of the imposition of any excise tax on a payment to such person.
(g) With respect to each Company Benefit Plan which is a “welfare plan” (as described in Section 3(1) of ERISA): (i) no such plan provides medical or death benefits with respect to current or former employees of a Target Company beyond their termination of employment (other than coverage mandated by Law, which is paid solely by such employees); and (ii) there are no reserves, assets, surplus or prepaid premiums under any such plan. Each Target Company has complied with the provisions of Section 601 et seq. of ERISA and Section 4980B, 4980D, 4980H, 6721 and 6722 of the Code.
(h) Except as set forth on Schedule 5.19(h), the consummation of the transactions contemplated by this Agreement and the Ancillary Documents will not: (i) entitle any individual to severance pay, unemployment compensation or other benefits or compensation, (ii) accelerate the time of payment, funding or vesting, or increase the amount of any compensation due, or in respect of, any Person individual, or entity (iii) result in or satisfy a condition to the payment of compensation that would, in combination with any other payment, result in an “excess parachute payment” within the meaning of Section 280G of the Code. No Target Company has incurred any Liability for any Tax imposed under Chapter 43 of the Code or civil liability under Section 502(i) or (l) of ERISA.
(i) Except to the extent required by Section 4980B of the Code or similar state Law, no Target Company provides health or welfare benefits to any former or retired employee or is obligated to provide such benefits to any active employee following such employee’s retirement or other termination of employment or service.
(j) All Company Benefit Plans can be terminated at any time as of or after the Closing Date without resulting in any Liability to the Surviving Subsidiaries or Pubco, or their respective Affiliates for any additional contributions, penalties, premiums, fees, fines, excise taxes or any other charges or liabilities.
(k) Each Company Benefit Plan that is subject to Section 409A of the Code (each, a “Section 409A Plan”) as of the Closing Date is indicated as such on Schedule 5.19(k). No equity-based awards have been issued or granted by the Company that are, or are subject to, a Section 409A Plan. Except as set forth on Schedule 5.19(k), (i) each Section 409A Plan has been administered in compliance, and is in documentary compliance, with the applicable provisions of Section 409A of the Code, the regulations thereunder and other official guidance issued thereunder, (ii) no Target Company has any obligation to any employee or other service provider with respect to any Section 409A Plan that may be subject to any Tax under Section 409A of the Code, and (iii) no payment to be made under any Section 409A Plan is, or to the Knowledge of the Company will be, subject to the penalties of Section 409A(a)(1) of the Code. There is no Contract or plan to which any Target Company is a party or by which it is bound to compensate, reimburse or indemnify any employee, consultant or director for any Taxes or interest imposed pursuant to Section 409A of the Code.
(l) Each Foreign Pension Plan, in form and operation, materially complies with its terms and with the requirements of all applicable Laws and has been maintained, where required, in good standing with applicable regulatory authorities. All contributions required to be made with respect to a Foreign Pension Plan have been timely made, and no Foreign Pension Plan has any Liability which is not properly accrued on the Company Financials. No Target Company has incurred any obligation in connection with the termination of, or withdrawal from, any Foreign Pension Plan. The present value of the accrued benefit Liabilities (whether or not incorporatedvested) that is under common control or treated each Foreign Pension Plan, determined as one employer under Section 4001(b)(1) of ERISA or Section 414(b), (c), (m) or (o) of the Codeend of the Target Company’s most recently ended fiscal year on the basis of actuarial assumptions, each of which is reasonable, did not exceed the current value of the assets of such Foreign Pension Plan allocable to such benefit Liabilities.
Appears in 1 contract
Sources: Business Combination Agreement (Willow Lane Acquisition Corp.)
Benefit Plans. (ia) Set forth on Schedule 3.19(a5.19(a) is a true and complete list of each material Benefit Plan of the Purchaser and its Subsidiaries a Target Company (each, a “Purchaser Company Benefit Plan”). With respect to each Purchaser Company Benefit Plan, there are no funded benefit obligations for which contributions have not been materially made or properly accrued and there are no material unfunded benefit obligations that have not been accounted for by reserves, or otherwise properly footnoted in accordance with GAAP on the Purchaser Company Financials. Except as set forth on Schedule 3.19(a), neither the Purchaser nor any Subsidiary No Target Company is or has in the past been a member of a “controlled group” for purposes of Section 414(b), (c), (m) or (o) of the Code other than with the Purchaser or another SubsidiaryCode, nor does the Purchaser or any Subsidiary Target Company have any Liability with respect to any collectively-bargained for plans, whether or not subject to the provisions of ERISA. No statement, either written or oral, has been made by any Target Company to any Person with regard to any Company Benefit Plan that was not in accordance with the Company Benefit Plan in any material respect.
(iib) Each Purchaser Except as set forth in Schedule 5.19(b), each Company Benefit Plan in all material respects is and has been operated at all times in compliance with all applicable Laws in all material respects, including ERISA and the Code. Each Purchaser Company Benefit Plan which is intended to be “qualified” within the meaning of Section 401(a) of the Code (i) has been determined by the IRS to be so qualified (or is based on a prototype plan which has received a favorable opinion letter) during the period from its adoption to the date of this Agreement and (ii) is funded through a its related trust has been determined to be exempt from taxation under Section 501(a) of the CodeCode or the Target Companies have requested an initial favorable IRS determination of qualification and/or exemption within the period permitted by applicable Law. To the Knowledge of the Purchaser, no No fact exists which could adversely affect the qualified status of such Purchaser Company Benefit Plans or the exempt status of such trusts.
(iiic) With respect to each Purchaser Company Benefit PlanPlan which covers any current or former officer, director, consultant or employee (or beneficiary thereof) of a Target Company, the Company has provided to Purchaser has made available to the Seller accurate and complete copies, if applicable, of: (i) all Purchaser Company Benefit Plan documents texts and agreements and related trust agreements or annuity Contracts (including any amendments, modifications or supplements thereto); (ii) all summary plan descriptions and material modifications thereto; (iii) the three (3) most recent Forms 5500, if applicable, and annual report, including all schedules thereto; (iv) the most recent annual and periodic accounting of plan assets; (v) the three (3) most recent nondiscrimination testing reports; (vi) the most recent determination letter received from the IRS, if any; (vii) the most recent actuarial valuation; and (viii) all material written communications between the Purchaser or any Subsidiary or any Purchaser Benefit Plan and with any Governmental Authority and relating to a Purchaser Benefit Plan within six (6) years preceding the date of this AgreementAuthority.
(ivd) With Except as set forth in Schedule 5.19(d), with respect to each Purchaser Company Benefit Plan: (i) such Purchaser Company Benefit Plan has been administered and enforced in all material respects in accordance with its terms, the Code and ERISA; (ii) neither the Purchaser nor no breach of fiduciary duty that could reasonably be expected to result in liability to any Subsidiary nor any employee, officer or director thereof that is a fiduciary (under ERISA) with respect to such Purchaser Benefit Plan Target Company has breached any of its fiduciary responsibilities, obligations or duties imposed on it by ERISAoccurred; (iii) no Action is pending pending, or to the Company’s Knowledge, threatened in writing (other than routine claims for benefits arising in the ordinary course of administration); (iv) nothing has occurred with respect to any Purchaser Benefit Plan that has subjected the Purchaser or any Subsidiary to any material penalty under no prohibited transaction, as defined in Section 502 406 of ERISA or Section 4975 of the Code, has occurred that could reasonably be likely to result in liability to any Target Company, excluding transactions effected pursuant to a statutory or administration exemption; and (v) all contributions and premiums due through the Closing Date have been made in all material respects as required under ERISA or have been fully accrued in all material respects on the Purchaser Company Financials.
(ve) No Purchaser Benefit Plan isDuring the six (6) year period preceding the Effective Time, and neither the Purchaser or any Subsidiary no Target Company or any of their respective ERISA Affiliates sponsorshas maintained, maintains, contributes to, is required to contribute contributed to, or otherwise has or could reasonably be expected had an obligation to have any current or contingent Liability under or with respect to, contribute to (i) a “defined benefit plan” (as defined in Section 414(j) of the Code), (ii) a “multiemployer plan” (as defined in Section 3(37) of ERISA) or (iii) a “multiple employer plan” (as described in Section 413(c) of the Code) or ). No Company Benefit Plan is otherwise subject to Title IV of ERISA or Section 412 of the Code, and neither the Target Company nor any ERISA Affiliate has incurred any Liability or otherwise could have any Liability, contingent or otherwise, under Title IV of ERISA and no condition presently exists that is expected to cause such Liability to be incurred. To the Purchaser’s Knowledge, no Purchaser No Company Benefit Plan will become a multiple employer plan with respect to any Purchaser Entity Target Company immediately after the Closing Date. Neither the Purchaser nor any Subsidiary No Target Company currently maintains or has ever maintained, or is required currently or has ever been required to contribute to or otherwise participate in, a multiple employer welfare arrangement or voluntary employees’ beneficiary association as defined in Section 501(c)(9) of the Code. For purposes of this Agreement, “ERISA Affiliate” means, .
(f) There is no arrangement under any Company Benefit Plan with respect to any Personemployee that would result in the payment of any amount that by operation of Sections 280G or 162(m) of the Code would not be deductible by the Target Companies and no arrangement exists pursuant to which a Target Company will be required to “gross up” or otherwise compensate any person because of the imposition of any excise tax on a payment to such person.
(g) With respect to each Company Benefit Plan which is a “welfare plan” (as described in Section 3(1) of ERISA): (i) no such plan provides medical or death benefits with respect to current or former employees of a Target Company beyond their termination of employment (other than coverage mandated by Law, which is paid solely by such employees); and (ii) there are no reserves, assets, surplus or prepaid premiums under any such plan. Each Target Company has complied with the provisions of Section 601 et seq. of ERISA and Section 4980B of the Code.
(h) Except as set forth in Schedule 5.19(h), the consummation of the transactions contemplated by this Agreement and the Ancillary Documents will not: (i) entitle any individual to severance pay, unemployment compensation or other benefits or compensation; (ii) accelerate the time of payment or vesting, or increase the amount of any compensation due, or in respect of, any Person individual; or entity (iii) result in or satisfy a condition to the payment of compensation that would, in combination with any other payment, result in an “excess parachute payment” within the meaning of Section 280G of the Code. No Target Company has incurred any Liability for any Tax imposed under Chapter 43 of the Code or civil liability under Section 502(i) or (l) of ERISA.
(i) Except to the extent required by Section 4980B of the Code or similar state Law, no Target Company provides health or welfare benefits to any former or retired employee or is obligated to provide such benefits to any active employee following such employee’s retirement or other termination of employment or service.
(j) All Company Benefit Plans can be terminated at any time as of or after the Closing Date without resulting in any Liability to the Surviving Subsidiaries or Pubco, or their respective Affiliates for any additional contributions, penalties, premiums, fees, fines, excise taxes or any other charges or liabilities.
(k) Each Company Benefit Plan that is subject to Section 409A of the Code (each, a “Section 409A Plan”) as of the Closing Date is indicated as such on Schedule 5.19(k). No Company Options or other equity-based awards have been issued or granted by the Company that are, or are subject to, a Section 409A Plan. Except as set forth in Schedule 5.19(k), (i) each Section 409A Plan has been administered in compliance, and is in documentary compliance, with the applicable provisions of Section 409A of the Code, the regulations thereunder and other official guidance issued thereunder; (ii) no Target Company has any obligation to any employee or other service provider with respect to any Section 409A Plan that may be subject to any Tax under Section 409A of the Code; and (iii) no payment to be made under any Section 409A Plan is, or to the Knowledge of the Company will be, subject to the penalties of Section 409A(a)(1) of the Code. There is no Contract or plan to which any Target Company is a party or by which it is bound to compensate any employee, consultant or director for any Taxes or interest imposed pursuant to Section 409A of the Code.
(l) Each Foreign Pension Plan has been maintained in substantial compliance with its terms and with the requirements of all applicable Laws and has been maintained, where required, in good standing with applicable regulatory authorities. All contributions required to be made with respect to a Foreign Pension Plan have been timely made. No Target Company has incurred any obligation in connection with the termination of, or withdrawal from, any Foreign Pension Plan. The present value of the accrued benefit liabilities (whether or not incorporatedvested) that is under common control or treated each Foreign Pension Plan, determined as one employer under Section 4001(b)(1) of ERISA or Section 414(b), (c), (m) or (o) of the Codeend of the Target Company’s most recently ended fiscal year on the basis of actuarial assumptions, each of which is reasonable, did not exceed the current value of the assets of such Foreign Pension Plan allocable to such benefit liabilities.
Appears in 1 contract
Sources: Merger Agreement (Americas Technology Acquisition Corp.)
Benefit Plans. (ia) Set forth on Schedule 3.19(a) is a true sets forth an accurate and complete list of each material Benefit Plan Plans in which the employees of Seller participate (the “Seller Plans”), and Purchaser has been provided with accurate and complete copies or descriptions of the Purchaser and its Subsidiaries Seller Plans.
(each, a “Purchaser Benefit Plan”). With respect to each Purchaser Benefit Plan, there are no funded benefit obligations for which contributions have not been materially made or properly accrued and there are no material unfunded benefit obligations that have not been accounted for by reserves, or otherwise properly footnoted in accordance with GAAP on the Purchaser Financials. b) Except as set forth on in Schedule 3.19(a3.19(b), neither the Purchaser nor any Subsidiary or has in the past been a member of a “controlled group” for purposes of Section 414(b), (c), (m) or (o) none of the Code other than with the Seller Plans are in violation of any law, statute or rule of any Governmental Entity. Purchaser shall not be liable for any acts of Seller or another Subsidiary, nor does the Purchaser its employees or any Subsidiary have any Liability agents with respect to any collectively-bargained for plans, Seller Plan prior to and including the Closing Date. Benefits under Seller Plans are as represented in the governing documents and have not been increased or modified (whether written or not subject written) subsequent to the provisions dates of ERISAsuch documents. There has been no communication to any employee or former employee of any intention or commitment to modify any Seller Plan or to establish or implement any other Benefit Plan. Full payment has been made of all amounts that Seller has been required to have paid as contributions to any Seller Plan or other employee benefit arrangement under applicable law or under the terms of any such plan or arrangement.
(iic) Each Purchaser Benefit Plan Schedule 3.19(c) lists the employees of Seller employed in the Business who are on sick leave, personal absence or other leave as of the date hereof.
(d) No employee or former employee of Seller will become entitled to any bonus, retirement, severance, job security or similar benefit or enhanced benefit or any fee or payment of any kind solely as a result of the transactions contemplated hereby.
(e) Seller has complied in all material respects is and with the requirements of COBRA. Seller has been operated in compliance with all applicable Laws in all material respects, including ERISA no obligation or liability to provide post-employment welfare benefits to any current or former employee of the Business (other than as required by COBRA).
(f) With respect to the Business and the Code. Each Purchaser Benefit Plan which Acquired Assets, Seller has not made any payments, is intended not obligated to make any payments, and is not a party to any agreement that could obligate it to make any payments, that will not be “qualified” within the meaning of Section 401(afully deductible under Sections 162(m) or 280G of the Code (i) has been determined by the IRS to be so qualified (or is based on a prototype plan which has received a favorable opinion letter) during the period from its adoption to the date any similar provision of this Agreement and (ii) is funded through a trust exempt from taxation under Section 501(a) of the Code. To the Knowledge of the Purchaserforeign, no fact exists which could adversely affect the qualified status of such Purchaser Benefit Plans state or the exempt status of such trustslocal law).
(iiig) With respect to each Purchaser Benefit Plan, the Purchaser has made available to the Neither Seller accurate and complete copies, if applicable, of: (i) all Purchaser Benefit Plan documents and agreements and related trust agreements or annuity Contracts (including any amendments, modifications or supplements thereto); (ii) all summary plan descriptions and material modifications thereto; (iii) the three (3) most recent Forms 5500, if applicable, and annual report, including all schedules thereto; (iv) the most recent annual and periodic accounting of plan assets; (v) the three (3) most recent nondiscrimination testing reports; (vi) the most recent determination letter received from the IRS, if any; (vii) the most recent actuarial valuation; and (viii) all material written communications between the Purchaser or any Subsidiary or any Purchaser Benefit Plan and any Governmental Authority and relating to a Purchaser Benefit Plan within six (6) years preceding the date of this Agreement.
(iv) With respect to each Purchaser Benefit Plan: (i) such Purchaser Benefit Plan has been administered and enforced in all material respects in accordance with its terms, the Code and ERISA; (ii) neither the Purchaser nor any Subsidiary nor any employeemember of Seller’s controlled group, officer or director thereof that is a fiduciary (under ERISA) with respect to such Purchaser Benefit Plan has breached any of its fiduciary responsibilities, obligations or duties imposed on it by ERISA; (iii) no Action is pending or threatened in writing (other than routine claims for benefits arising in the ordinary course of administration); (iv) nothing has occurred with respect to any Purchaser Benefit Plan that has subjected the Purchaser or any Subsidiary to any material penalty under Section 502 of ERISA or Section 4975 of the Code; and (v) all contributions and premiums due through the Closing Date have been made in all material respects as required under ERISA or have been fully accrued in all material respects on the Purchaser Financials.
(v) No Purchaser Benefit Plan is, and neither the Purchaser or any Subsidiary or any of their respective ERISA Affiliates sponsors, maintains, contributes to, is required to contribute to, or otherwise has or could reasonably be expected to have any current or contingent Liability under or with respect to, a “defined benefit plan” (as defined in Section 414(j) 414 of the Code), (i) maintains or has ever maintained (A) a “multiemployer plan” (as defined in Section 3(37) of ERISA), (B) or a “multiple employer plan” (as described in Section 413(c) of the Code) or is otherwise an employee benefit plan subject to Title IV VII of ERISA (other than a defined contribution plan), or (C) a plan to which Section 412 of the Code. To the Purchaser’s Knowledge, no Purchaser Benefit Plan will become a multiple employer plan with respect to any Purchaser Entity immediately after the Closing Date. Neither the Purchaser nor any Subsidiary currently maintains or has ever maintainedCode applies, or is required currently or (ii) has ever been required to contribute to or otherwise participate engaged in, within the last five years, a multiple employer welfare arrangement or voluntary employees’ beneficiary association as defined transaction described in Section 501(c)(9) 4069 of the Code. For purposes of this Agreement, “ERISA Affiliate” means, with respect to any Person, any Person or entity (whether or not incorporated) that is under common control or treated as one employer under Section 4001(b)(1) of ERISA or Section 414(b), (c), (m) or (o) of the CodeERISA.
Appears in 1 contract
Benefit Plans. (ia) Set forth on Schedule 3.19(a) in Section 4.19 of the Company Disclosure Schedules is a true and complete list of each material Benefit Plan of the Purchaser and its Subsidiaries a Target Company (each, a “Purchaser Company Benefit Plan”). With respect to each Purchaser Company Benefit Plan, there are no funded benefit obligations for which contributions have not been materially made or properly accrued and there are no material unfunded benefit obligations that have not been accounted for by reserves, or otherwise properly footnoted in accordance with GAAP or Japanese generally accepted accounting principles on the Purchaser Company Financials. Except as set forth on Schedule 3.19(a), neither the Purchaser nor any Subsidiary No Target Company is or has in the past been a member of a “controlled group” for purposes of Section 414(b), (c), (m) or (o) of the Code other than with the Purchaser or another SubsidiaryCode, nor does the Purchaser or any Subsidiary Target Company have any Liability with respect to any collectively-bargained for plans, whether or not subject to the provisions of ERISA.
(iib) Each Purchaser Company Benefit Plan in all material respects is and has been operated at all times in compliance with all applicable Laws in all material respects, including ERISA and the Code. Each Purchaser Company Benefit Plan which is intended to be “qualified” within the meaning of Section 401(a) of the Code (i) has been determined by the IRS to be so qualified (or is based on a prototype plan which has received a favorable opinion letter) during the period from its adoption to the date of this Agreement Date and (ii) is funded through a its related trust has been determined to be exempt from taxation under Section 501(a) of the CodeCode or the Target Companies have requested an initial favorable IRS determination of qualification and/or exemption within the period permitted by applicable Law. To the Knowledge of the PurchaserCompany’s Knowledge, no fact exists which could adversely affect the qualified status of such Purchaser Company Benefit Plans or the exempt status of such trusts.
(iiic) With respect to each Purchaser Company Benefit PlanPlan which covers any current or former officer, director, consultant or employee (or beneficiary thereof) of a Target Company, the Company has provided to Purchaser has made available to the Seller accurate and complete copies, if applicable, of: (i) all Purchaser Company Benefit Plan documents and agreements and related trust agreements or annuity Contracts (including any amendments, modifications or supplements thereto); (ii) all summary plan descriptions and summary of material modifications thereto; (iii) the three (3) most recent Forms 5500, if applicable, and annual report, including all schedules thereto; (iv) the most recent annual and periodic accounting of plan assets; (v) the three (3) most recent nondiscrimination testing reports; (vi) the most recent determination letter received from the IRS, if any; (vii) the most recent actuarial valuation; and (viii) all material written communications between the Purchaser or any Subsidiary or any Purchaser Benefit Plan and with any Governmental Authority and relating to a Purchaser Benefit Plan within six the last three (63) years preceding the date of this Agreementyears.
(ivd) With respect to each Purchaser Company Benefit Plan: (i) such Purchaser Company Benefit Plan has been administered and enforced in all material respects in accordance with its terms, the Code and ERISA; (ii) neither the Purchaser nor any Subsidiary nor any employee, officer or director thereof that is a no breach of fiduciary (under ERISA) with respect to such Purchaser Benefit Plan duty has breached any of its fiduciary responsibilities, obligations or duties imposed on it by ERISAoccurred; (iii) no Action is pending pending, or to the Company’s Knowledge, threatened in writing (other than routine claims for benefits arising in the ordinary course of administration); (iv) nothing has occurred with respect to any Purchaser Benefit Plan that has subjected the Purchaser or any Subsidiary to any material penalty under no prohibited transaction, as defined in Section 502 406 of ERISA or Section 4975 of the Code, has occurred, excluding transactions effected pursuant to a statutory or administration exemption; and (v) all contributions and premiums due through the Closing Date have been made in all material respects as required under ERISA or have been fully accrued in all material respects on the Purchaser Company Financials.
(ve) No Purchaser Company Benefit Plan is, and neither the Purchaser or any Subsidiary or any of their respective ERISA Affiliates sponsors, maintains, contributes to, is required to contribute to, or otherwise has or could reasonably be expected to have any current or contingent Liability under or with respect to, a “defined benefit plan” (as defined in Section 414(j) of the Code), a “multiemployer plan” (as defined in Section 3(37) of ERISA) or a “multiple employer plan” (as described in Section 413(c) of the Code) or is otherwise subject to Title IV of ERISA or Section 412 of the Code, and no Target Company has incurred any Liability or otherwise could have any Liability, contingent or otherwise, under Title IV of ERISA and no condition presently exists that is expected to cause such Liability to be incurred. To the Purchaser’s Knowledge, no Purchaser No Company Benefit Plan will become a multiple employer plan with respect to any Purchaser Entity Target Company immediately after the Closing Date. Neither the Purchaser nor any Subsidiary No Target Company currently maintains or has ever maintained, or is required currently or has ever been required to contribute to or otherwise participate in, a multiple employer welfare arrangement or voluntary employees’ beneficiary association as defined in Section 501(c)(9) of the Code.
(f) No arrangement exists pursuant to which a Target Company will be required to “gross up” or otherwise compensate any person because of the imposition of any excise tax on a payment to such person.
(g) With respect to each Company Benefit Plan which is a “welfare plan” (as described in Section 3(1) of ERISA): (i) no such plan provides medical or death benefits with respect to current or former employees of a Target Company beyond their termination of employment (other than coverage mandated by Law, which is paid solely by such employees); and (ii) there are no reserves, assets, surplus or prepaid premiums under any such plan. For The Target Companies have complied in all material respects with the provisions of Section 601 et seq. of ERISA and Section 4980B of the Code.
(h) Each Company Benefit Plan satisfies the requirements of the Patient Protection and Affordable Care Act of 2010 (the “PPACA”), such that there is no reasonable expectation that any Tax or penalty could be imposed pursuant to the PPACA that relates to such group health plan. To the Knowledge of the Company, no condition exists that could cause any Target Company to have any Liability for any assessable payment under Section 4980H of the Code. To the Knowledge of the Company, no event has occurred, or condition exists, that could subject any Target Company to any Liability on account of a violation of the health care requirements of Part 6 or 7 of Title I of ERISA or Section 4980B or 4980D of the Code. Each Target Company has maintained records that are sufficient to satisfy the reporting requirements under Sections 6055 and 6056 of the Code, to the extent required, for all periods of time up to and through the Closing Date. No Target Company has modified the employment or service terms of any employee or service provider for the purpose of excluding such employee or service provider from full-time status for purposes of PPACA.
(i) Except as set forth in Section 4.19(i) of the Company Disclosure Schedules, the consummation of the transactions contemplated by this AgreementAgreement and the Ancillary Documents will not: (i) entitle any individual to severance pay, unemployment compensation or other benefits or compensation (except as set forth in Section 4.19 of the Company Disclosure Schedules); (ii) accelerate the time of payment or vesting, or increase the amount of any compensation due, or in respect of, any individual; or (iii) result in or satisfy a condition to the payment of compensation that would, in combination with any other payment, result in an “ERISA Affiliateexcess parachute payment” meanswithin the meaning of Section 280G of the Code. No Target Company has incurred any Liability for any Tax imposed under Chapter 43 of the Code or civil liability under Section 502(i) or (l) of ERISA.
(j) All Company Benefit Plans can be terminated at any time prior to the Closing Date without resulting in any Liability to the Surviving Corporation or Purchaser or their respective Affiliates for any additional contributions, penalties, premiums, fees, fines, excise taxes or any other charges or liabilities.
(k) Each Company Benefit Plan that is subject to Section 409A of the Code (each, a “Section 409A Plan”) as of the Closing Date is indicated as such in Section 4.19(k) of the Company Disclosure Schedules. No options or other equity-based awards have been issued or granted by the Company that are, or are subject to, a Section 409A Plan. Each Section 409A Plan has been administered in compliance, and is in documentary compliance, in all material respects, with the applicable provisions of Section 409A of the Code, the regulations thereunder and other official guidance issued thereunder. No Target Company has any obligation to any employee or other service provider with respect to any Person, Section 409A Plan that may be subject to any Person or entity (whether or not incorporated) that is under common control or treated as one employer Tax under Section 4001(b)(1) 409A of ERISA the Code. No payment to be made under any Section 409A Plan is, or to the Knowledge of the Company will be, subject to the penalties of Section 414(b), (c), (m) or (o409A(a)(1) of the Code. There is no Contract or plan to which any Target Company is a party or by which it is bound to compensate any employee, consultant or director for penalty taxes paid pursuant to Section 409A of the Code.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Pono Capital Two, Inc.)
Benefit Plans. (ia) Set forth on Schedule 3.19(a4.19(a) is a true and complete list of each material Benefit Plan of the Purchaser and its Subsidiaries a Target Company (each, a “Purchaser Company Benefit Plan”). With respect to each Purchaser Company Benefit Plan, there are no funded benefit obligations for which contributions have not been materially made or properly accrued according to GAAP and there are no material unfunded benefit obligations that have not been accounted for by reserves, or otherwise properly footnoted in accordance with GAAP on the Purchaser Company Financials. Except as set forth on Schedule 3.19(a4.19(a), neither the Purchaser nor any Subsidiary no Target Company is or has in the past been a member of a “controlled group” for purposes of Section 414(b), (c), (m) or (o) of the Code other than with the Purchaser or another SubsidiaryCode, nor does the Purchaser or any Subsidiary Target Company have any Liability with respect to any collectively-bargained for plans, whether or not subject to the provisions of ERISA. No statement, either written or oral, has been made by any Target Company to any Person with regard to any Company Benefit Plan that was not in accordance with the Company Benefit Plan in any material respect.
(iib) Each Purchaser Company Benefit Plan in all material respects is and has been operated at all times in compliance with all applicable Laws in all material respects, including ERISA and the Code. Each Purchaser Company Benefit Plan which is intended to be “qualified” within the meaning of Section 401(a) of the Code (i) has been determined by the IRS to be so qualified (or is based on a prototype plan which has received a favorable opinion letter) during the period from its adoption to the date of this Agreement and (ii) is funded through a its related trust has been determined to be exempt from taxation under Section 501(a) of the CodeCode or the Target Companies have requested an initial favorable IRS determination of qualification and/or exemption within the period permitted by applicable Law. To the Knowledge of the Purchaser, no No fact exists which could adversely affect the qualified status of such Purchaser Company Benefit Plans or the exempt status of such trusts.
(iiic) With respect to each Purchaser Company Benefit PlanPlan which covers any current or former officer, director, consultant, independent contractor or employee (or beneficiary thereof) of a Target Company, the Company has provided to Purchaser has made available to the Seller accurate and complete copies, if applicable, of: (i) all Purchaser Company Benefit Plan documents texts and agreements and related trust agreements or annuity Contracts (including any amendments, modifications or supplements thereto); (ii) all summary plan descriptions and material modifications thereto; (iii) the three (3) most recent Forms 5500, if applicable, and annual report, including all schedules thereto; (iv) the most recent annual and periodic accounting of plan assets; (v) the three (3) most recent nondiscrimination testing reports; (vi) the most recent determination letter received from the IRS, if any; (vii) the most recent actuarial valuation; and (viii) all material written communications between the Purchaser or any Subsidiary or any Purchaser Benefit Plan and with any Governmental Authority and relating to a Purchaser Benefit Plan within six (6) years preceding the date of this AgreementAuthority.
(ivd) With respect to each Purchaser Company Benefit Plan: (i) such Purchaser Company Benefit Plan has been administered administered, funded , maintained and enforced in all material respects in accordance with its terms, the Code and ERISA; (ii) neither the Purchaser nor any Subsidiary nor any employee, officer or director thereof that is a no breach of fiduciary (under ERISA) with respect to such Purchaser Benefit Plan duty has breached any of its fiduciary responsibilities, obligations or duties imposed on it by ERISAoccurred; (iii) no Action is pending pending, or to the Company’s Knowledge, threatened in writing (other than routine claims for benefits arising in the ordinary course of administration); (iv) nothing has occurred with respect to any Purchaser Benefit Plan that has subjected the Purchaser or any Subsidiary to any material penalty under no prohibited transaction, as defined in Section 502 406 of ERISA or Section 4975 of the Code, has occurred, excluding transactions effected pursuant to a statutory or administration exemption; and (v) all contributions and premiums due through the Closing Date have been made in all material respects as required under ERISA or have been fully accrued in all material respects on the Purchaser Company Financials.
(ve) No Purchaser Company Benefit Plan is, and neither the Purchaser no Target Company or any Subsidiary entity, trade or any business that is a member of their respective ERISA Affiliates a group described in Section 414(b), (c), (m) or (o) of the Code sponsors, maintains, contributes to, is required has an obligation to contribute to, or otherwise has or could reasonably be expected to have any current or contingent Liability under or with respect to, a “defined benefit plan” (as defined in Section 414(j) of the Code), a “multiemployer plan” (as defined in Section 3(37) of ERISA) or a “multiple employer plan” (as described in Section 413(c) of the Code) or is otherwise subject to Title IV of ERISA or Section 412 of the Code, and no Target Company has incurred any Liability or otherwise could have any Liability, contingent or otherwise, under Title IV of ERISA and no condition presently exists that is expected to cause such Liability to be incurred. To the Purchaser’s Knowledge, no Purchaser Benefit Plan will become a multiple employer plan with respect to any Purchaser Entity immediately after the Closing Date. Neither the Purchaser nor any Subsidiary No Target Company currently maintains or has ever maintained, or is required currently or has ever been required to contribute to or otherwise participate in, a multiple employer welfare arrangement or voluntary employees’ beneficiary association as defined in Section 501(c)(9) of the Code. For purposes of this Agreement, “ERISA Affiliate” means, .
(f) There is no arrangement under any Company Benefit Plan with respect to any Personemployee that would result in the payment of any amount that by operation of Sections 280G or 162(m) of the Code would not be deductible by the Target Companies and no arrangement exists pursuant to which a Target Company will be required to “gross up” or otherwise compensate any person because of the imposition of any excise tax on a payment to such person.
(g) With respect to each Company Benefit Plan which is a “welfare plan” (as described in Section 3(1) of ERISA): (i) no such plan provides medical or death benefits with respect to current or former employees, officers, directors, consultants, or independent contractors of a Target Company beyond their termination of employment (other than coverage mandated by Law, which is paid solely by such employees); and (ii) there are no reserves, assets, surplus or prepaid premiums under any such plan. Each Target Company has complied with the provisions of Section 601 et seq. of ERISA, Section 4980B of the Code and with the Patient Protection and Affordable Care Act of 2010, and, to the Knowledge of the Company, no event has occurred, and no condition or circumstance exists, that would subject any Target Company or any Company Benefit Plan to any material Liability for penalties or excise Taxes under Sections 4980D or 4980H of the Code.
(h) The consummation of the transactions contemplated by this Agreement and the Ancillary Documents will not: (i) entitle any individual to severance pay, unemployment compensation or other benefits or compensation; (ii) accelerate the time of payment or vesting, or increase the amount of any compensation due, or in respect of, any Person individual; or entity (whether iii) result in or not incorporated) satisfy a condition to the payment of compensation that is would, in combination with any other payment, result in an “excess parachute payment” within the meaning of Section 280G of the Code. No Target Company has incurred any Liability for any Tax imposed under common control Chapter 43 of the Code or treated as one employer civil liability under Section 4001(b)(1) of ERISA or Section 414(b), (c), (m502(i) or (ol) of ERISA.
(i) Except to the extent required by Section 4980B of the Code or similar state Law, no Target Company provides health or welfare benefits to any former or retired employee or is obligated to provide such benefits to any active employee following such employee’s retirement or other termination of employment or service.
(j) All Company Benefit Plans can be terminated at any time as of or after the Closing Date without resulting in any Liability to the Surviving Corporation or Purchaser or their respective Affiliates for any additional contributions, penalties, premiums, fees, fines, excise taxes or any other charges or liabilities.
(k) Each Company Benefit Plan that is subject to Section 409A of the Code (each, a “Section 409A Plan”) as of the Closing Date is indicated as such on Schedule 4.19(k). No Company Options or other equity-based awards have been issued or granted by the Company that are, or are subject to, a Section 409A Plan. Each Section 409A Plan has been administered in compliance, and is in documentary compliance, with the applicable provisions of Section 409A of the Code, the regulations thereunder and other official guidance issued thereunder. No Target Company has any obligation to any employee or other service provider with respect to any Section 409A Plan that may be subject to any Tax under Section 409A of the Code. No payment to be made under any Section 409A Plan is, or to the Knowledge of the Company will be, subject to the penalties of Section 409A(a)(1) of the Code. There is no Contract or plan to which any Target Company is a party or by which it is bound to compensate any employee, consultant or director for penalty taxes paid pursuant to Section 409A of the Code.
Appears in 1 contract
Sources: Merger Agreement (Artemis Strategic Investment Corp)
Benefit Plans. (ia) Set forth on Schedule 3.19(a5.19(a) is a true and complete list of each material Benefit Plan of the Purchaser and its Subsidiaries Company (each, a “Purchaser Company Benefit Plan”). With respect to each Purchaser Company Benefit Plan, there are no funded benefit obligations for which contributions have not been materially made or properly accrued and there are no material unfunded benefit obligations that have not been accounted for by reserves, or otherwise properly footnoted in accordance with GAAP on the Purchaser Company Financials. Except as set forth on Schedule 3.19(a)The Company is not, neither the Purchaser nor any Subsidiary or and has never in the past been been, a member of a “controlled group” for purposes of Section 414(b), (c), (m) or (o) of the Code other than with the Purchaser or another SubsidiaryCode, nor does the Purchaser or any Subsidiary Company have any Liability with respect to any collectively-bargained for plans, whether or not subject to the provisions of ERISA. No statement, either written or oral, has been made by the Company to any Person with regard to any Company Benefit Plan that was not in accordance with the Company Benefit Plan in any material respect.
(iib) Each Purchaser Company Benefit Plan in all material respects is and has been operated at all times in compliance with all applicable Laws in all material respects, including ERISA and the Code. Each Purchaser Company Benefit Plan which is intended to be “qualified” within the meaning of Section 401(a) of the Code (i) has been determined by the IRS to be so qualified (or is based on a prototype plan which has received a favorable opinion letter) during the period from its adoption to the date of this Agreement and (ii) is funded through a its related trust has been determined to be exempt from taxation under Section 501(a) of the CodeCode or the Company has requested an initial favorable IRS determination of qualification and/or exemption within the period permitted by applicable Law. To the Knowledge of the Purchaser, no No fact exists which could adversely affect the qualified status of such Purchaser Company Benefit Plans or the exempt status of such trusts.
(iiic) With respect to each Purchaser Company Benefit PlanPlan which covers any current or former officer, director, consultant or employee (or beneficiary thereof) of the Company, the Purchaser Company has made available provided to the Seller Purchaser accurate and complete copies, if applicable, of: (i) all Purchaser Company Benefit Plan documents texts and agreements and related trust agreements or annuity Contracts (including any amendments, modifications or supplements thereto); , (ii) all summary plan descriptions and material modifications thereto; , (iii) the three (3) most recent Forms 5500, if applicable, and annual report, including all schedules thereto; , (iv) the most recent annual and periodic accounting of plan assets; , (v) the three (3) most recent nondiscrimination testing reports; , (vi) the most recent determination letter received from the IRS, if any; , (vii) the most recent actuarial valuation; , and (viii) all material written communications between the Purchaser or any Subsidiary or any Purchaser Benefit Plan and with any Governmental Authority and relating to a Purchaser Benefit Plan within six (6) years preceding the date of this AgreementAuthority.
(ivd) With respect to each Purchaser Company Benefit Plan: (i) such Purchaser Company Benefit Plan has been administered and enforced in all material respects in accordance with its termsterms and all applicable Laws, including the Code and ERISA; , (ii) neither no breach of fiduciary duty that could reasonably be expected to result in Liability to the Purchaser nor any Subsidiary nor any employeeCompany has occurred, officer or director thereof that is a fiduciary (under ERISA) with respect to such Purchaser Benefit Plan has breached any of its fiduciary responsibilities, obligations or duties imposed on it by ERISA; (iii) no Action is pending pending, or to the Company’s Knowledge, threatened in writing (other than routine claims for benefits arising in the ordinary course of administration); , (iv) nothing has occurred with respect to any Purchaser Benefit Plan that has subjected the Purchaser or any Subsidiary to any material penalty under no prohibited transaction, as defined in Section 502 406 of ERISA or Section 4975 of the Code, has occurred that could reasonably be likely to result in liability to the Company, excluding transactions effected pursuant to a statutory or administration exemption; (v) no filing has been made with respect to any Company Benefit Plan under any voluntary correction program; (vi) there has been no amendment to, written interpretation or announcement (whether or not written) by the Company relating to, any change in participation or coverage under, any Company Benefit Plan that would materially increase the expense of maintaining such Company Benefit Plan above the level of expense incurred with respect to such Company Benefit Plan for the most recent full fiscal year included in the Company Financials; and (vvii) all contributions and premiums due through the Closing Date have been made in all material respects as required under all applicable Laws, including the Code and ERISA or have been fully accrued in all material respects on the Purchaser Company Financials.
(ve) No Purchaser Benefit Plan isDuring the six (6) year period preceding the Effective Time, and neither the Purchaser Company nor any of its ERISA Affiliates has maintained, contributed to, sponsored, had an obligation to contribute to or any Subsidiary Liability, whether absolute or any of their respective ERISA Affiliates sponsorscontingent, maintains, contributes to, is required to contribute to, or otherwise has or could reasonably be expected to have any current or contingent Liability under or with respect to, to (i) a “defined benefit plan” (as defined in Section 414(j) of the Code), (ii) a “multiemployer plan” (as defined in Section 3(37) of ERISA) or (iii) a “multiple employer plan” (as described in Section 413(c) of the Code) or ). No Company Benefit Plan is otherwise subject to Title IV of ERISA or Section 412 of the Code, and neither the Company nor any ERISA Affiliate has incurred any Liability or otherwise could have any Liability, contingent or otherwise, under Title IV of ERISA and no condition presently exists that is expected to cause such Liability to be incurred. To the Purchaser’s Knowledge, no Purchaser No Company Benefit Plan will become a multiple employer plan with respect to any Purchaser Entity the Company immediately after the Closing Date. Neither the Purchaser nor any Subsidiary The Company currently maintains or does not maintain and has ever never maintained, or and is not required currently or and has ever never been required to contribute to or otherwise participate in, a multiple employer welfare arrangement or voluntary employees’ beneficiary association as defined in Section 501(c)(9) of the Code. For purposes of this Agreement, “ERISA Affiliate” means, .
(f) There is no arrangement under any Company Benefit Plan with respect to any Personemployee that would result in the payment of any amount that by operation of Sections 280G or 162(m) of the Code would not be deductible by the Company and no arrangement exists pursuant to which the Company will be required to “gross up” or otherwise compensate any person because of the imposition of any excise tax on a payment to such person.
(g) With respect to each Company Benefit Plan which is a “welfare plan” (as described in Section 3(1) of ERISA): (i) no such plan provides medical or death benefits with respect to current or former employees of the Company beyond their termination of employment (other than coverage mandated by Law, which is paid solely by such employees); and (ii) there are no reserves, assets, surplus or prepaid premiums under any such plan. The Company has complied with the provisions of Section 601 et seq. of ERISA and Section 4980B, 4980D, 4980H, 6721 and 6722 of the Code.
(h) The consummation of the transactions contemplated by this Agreement and the Ancillary Documents will not: (i) entitle any individual to severance pay, unemployment compensation or other benefits or compensation, (ii) accelerate the time of payment or vesting, or increase the amount of any compensation due, or in respect of, any Person individual, or entity (iii) result in or satisfy a condition to the payment of compensation that would, in combination with any other payment, result in an “excess parachute payment” within the meaning of Section 280G of the Code. The Company has not incurred any Liability for any Tax imposed under Chapter 43 of the Code or civil liability under Section 502(i) or (l) of ERISA.
(i) Except to the extent required by Section 4980B of the Code or similar state Law, the Company does not provide health or welfare benefits to any former or retired employee or is obligated to provide such benefits to any active employee following such employee’s retirement or other termination of employment or service.
(j) All Company Benefit Plans can be terminated at any time as of or after the Closing Date without resulting in any Liability to the Surviving Subsidiaries or Pubco, or their respective Affiliates for any additional contributions, penalties, premiums, fees, fines, excise taxes or any other charges or liabilities.
(k) Each Company Benefit Plan that is subject to Section 409A of the Code (each, a “Section 409A Plan”) as of the Closing Date is indicated as such on Schedule 5.19(k). No equity-based awards have been issued or granted by the Company that are, or are subject to, a Section 409A Plan. Each Section 409A Plan has been administered in compliance, and is in documentary compliance, with the applicable provisions of Section 409A of the Code, the regulations thereunder and other official guidance issued thereunder. The Company does not have any obligation to any employee or other service provider with respect to any Section 409A Plan that may be subject to any Tax under Section 409A of the Code, and No payment to be made under any Section 409A Plan is, or to the Knowledge of the Company will be, subject to the penalties of Section 409A(a)(1) of the Code. There is no Contract or plan to which the Company is a party or by which it is bound to compensate any employee, consultant or director for any Taxes or interest imposed pursuant to Section 409A of the Code.
(l) Each Foreign Pension Plan has been maintained in substantial compliance with its terms and with the requirements of all applicable Laws and has been maintained, where required, in good standing with applicable regulatory authorities. All contributions required to be made with respect to a Foreign Pension Plan have been timely made. The Company has not incurred any obligation in connection with the termination of, or withdrawal from, any Foreign Pension Plan. The present value of the accrued benefit liabilities (whether or not incorporatedvested) that is under common control or treated each Foreign Pension Plan, determined as one employer under Section 4001(b)(1) of ERISA or Section 414(b), (c), (m) or (o) of the Codeend of the Company’s most recently ended fiscal year on the basis of actuarial assumptions, each of which is reasonable, did not exceed the current value of the assets of such Foreign Pension Plan allocable to such benefit liabilities.
Appears in 1 contract
Sources: Business Combination Agreement (Colombier Acquisition Corp. Ii)
Benefit Plans. (ia) Set forth on Schedule 3.19(aSection 5.15(a) is a true and complete list of the Seller Disclosure Letter lists each material Benefit Plan of the Purchaser and its Subsidiaries Plan.
(each, a “Purchaser Benefit Plan”). b) With respect to each Purchaser material Benefit Plan, there are no funded benefit obligations for which contributions have Seller has made available to Buyer (A) a copy of the plan document and all amendments thereto (or, if a Benefit Plan is not been materially made reduced to writing, a written summary of such plan’s key terms) and (B) if applicable, a copy of the most recent IRS determination letter or properly accrued and there are no material unfunded benefit obligations that have not been accounted for by reservesopinion letter received, (C) if applicable, each trust agreement, insurance contract, account, or otherwise properly footnoted in accordance other documents that establish the funding of a vehicle for such Benefit Plan, (D) the most recent summary plan description and any summaries of material modifications, (E) if applicable, the Form 5500 annual report for the most recently completed year, including all schedules and attachments, (F) copies of all estimates of potential withdrawal liability or funded status with GAAP on respect to any Benefit Plan that is subject to Title IV of ERISA from each of the Purchaser Financials. last three (3) years; and (G) any written notices, letters, or other material correspondence within the last three (3) years from any Governmental Body.
(c) Except as set forth on Schedule 3.19(a)in Section 5.15(c) of the Seller Disclosure Letter, neither the Purchaser Company nor any Subsidiary of its ERISA Affiliates sponsors, maintains, contributes to, or is required to contribute to or, within the preceding six (6) years has sponsored, maintained, contributed to, or been required to contribute to, or has in the past been a member of incurred, or is reasonably expected to incur, any liability or obligation with respect to (i) a “controlled groupmultiemployer plan” for purposes of as defined in Section 414(b), (c), (m) or (o3(37) of the Code, (ii) a plan that is or was subject to Title IV of ERISA or Section 412 of the Code, (iii) a “defined benefit plan” as defined in Section 3(35) of ERISA, or (iv) a “multiple employer plan” subject to Section 413(c) of the Code; and no such liability or obligation is reasonably expected to result in a liability or obligation of Buyer. No prohibited transaction (within the meaning of Code other than with the Purchaser or another Subsidiary, nor does the Purchaser or any Subsidiary have any Liability Section 4975 and Section 406 of ERISA has occurred with respect to any collectively-bargained for plans, whether Benefit Plan that would reasonably be expected to subject Buyer to a Tax or not subject penalty imposed by either Section 4975 of the Code or Section 502(i) of ERISA in an amount which would reasonably be expected to be material to the provisions Company. All liability of ERISA.
(ii) Each Purchaser the Company and its ERISA Affiliates under Title IV of ERISA that has been incurred with respect to any Benefit Plan described in this Section 5.15(c) in the last six (6) years has been satisfied in all material respects is and each of the Company and its ERISA Affiliates has met in all applicable minimum funding requirements under Section 302 of ERISA and Section 412 of the Code with respect to such Benefit Plans.
(d) Each Benefit Plan, including any associated trust or fund, has been established, and at all relevant times, has been maintained, funded, administered, and operated in compliance with all applicable Laws in all material respectsrespects with its terms and with the applicable requirements of the Code, including ERISA and the Code. regulations issued thereunder and any other Requirements of Law.
(e) Each Purchaser Benefit Plan which is intended to be “qualified” within the meaning of Section 401(a) of the Code (i) has been determined by the IRS to be so qualified (or is based on a prototype plan which has received a favorable determination, or is entitled to rely on an opinion letter) during , from the period from IRS as to its adoption qualification under the Code, and to the Knowledge of Seller, no event has occurred since the date of this Agreement and (ii) is funded through a trust exempt from taxation under Section 501(a) of the Code. To the Knowledge of the Purchaser, no fact exists which could such determination or opinion letter that would reasonably be expected to materially adversely affect the qualified status of such Purchaser Benefit Plans or the tax-exempt status of any such trusts.
(iii) With respect to each Purchaser Benefit Plan, the Purchaser has made available to the Seller accurate and complete copies, if applicable, of: (i) all Purchaser Benefit Plan documents and agreements and related trust agreements or annuity Contracts (including any amendments, modifications or supplements thereto); (ii) all summary plan descriptions and material modifications thereto; (iii) the three (3) most recent Forms 5500, if applicable, and annual report, including all schedules thereto; (iv) the most recent annual and periodic accounting of plan assets; (v) the three (3) most recent nondiscrimination testing reports; (vi) the most recent determination letter received from the IRS, if any; (vii) the most recent actuarial valuation; and (viii) all material written communications between the Purchaser or any Subsidiary or any Purchaser Benefit Plan and any Governmental Authority and relating related trust or result in material liability to a Purchaser Benefit Plan within six (6) years preceding the date of this AgreementBusiness.
(ivf) With respect to each Purchaser Benefit Plan: (i) such Purchaser Benefit Plan has been administered and enforced in all There are no material respects in accordance with its termsactions, the Code and ERISA; (ii) neither the Purchaser nor any Subsidiary nor any employee, officer suits or director thereof that is a fiduciary (under ERISA) with respect to such Purchaser Benefit Plan has breached any of its fiduciary responsibilities, obligations or duties imposed on it by ERISA; (iii) no Action is pending or threatened in writing proceedings (other than routine claims for benefits arising benefits) pending or, to the Knowledge of Seller, threatened in the ordinary course of administration); (iv) nothing has occurred connection with respect to any Purchaser Benefit Plan that would reasonably be expected to result in a material liability to the Business. No Benefit Plan is, or within the last six (6) years has subjected been, the Purchaser subject of an examination or any Subsidiary audit by a Governmental Body, is the subject of an application or filing under, or is a participant in, a government-sponsored amnesty, voluntary compliance, and self-correction of similar program, in each case, that would reasonably be expected to any result in material penalty under Section 502 of ERISA or Section 4975 of liability to the Code; and Business.
(vg) Except as would not reasonably be expected to be material to the Business, taken as a whole, all contributions and premiums due through required to be made under the Closing Date terms of any Benefit Plan to any funds, insurance contracts or trusts established thereunder or in connection therewith have been properly accrued in accordance with GAAP and have been made by the due date thereof (including any valid extension thereof) in all material respects as required under ERISA or have been fully accrued in all material respects on accordance with the Purchaser Financialsterms of such Benefit Plans, the terms of any collective bargaining agreement (to the extent applicable) and applicable statutes, laws and regulations, including ERISA, the Patient Protection and Affordability Act, and the Code.
(vh) Except as set forth in Section 5.15(h) of the Seller Disclosure Letter, or as required by this Agreement, the execution, delivery and performance of this Agreement by Seller and the consummation of the transactions contemplated by this Agreement will not (alone or in combination with any other event) (i) entitle any Business Employee to any payment (including severance or unemployment pay), (ii) result in any payment becoming due, accelerate the time of payment or vesting of benefits, or increase the amount of compensation due to any Business Employee, or (iii) result in the forgiveness of any indebtedness of any Business Employee.
(i) No Purchaser Benefit Plan isPlan, and neither the Purchaser or any Subsidiary or any of their respective ERISA Affiliates sponsorsagreement, maintainscontract, contributes to, is required to contribute toarrangement, or otherwise has or could plan would reasonably be expected to have result, separately or in the aggregate, either alone or together with any current or contingent Liability under or with respect toother event, a in the payment of any “defined benefit planexcess parachute payment” (as defined in within the meaning of Section 414(j) 280G of the CodeCode or in the imposition of an excise Tax under Section 4999 of the Code (or any corresponding provisions of state, local or foreign Tax law). The Company has no obligation to gross up, a compensate, reimburse, indemnify or “multiemployer planmake-whole” (as defined in Section 3(37) of ERISA) any Business Employee for any penalty or a “multiple employer plan” (as Tax, including those described in Section 413(c) or payable by reason of the Code) Sections 280G, 409A or is otherwise subject to Title IV of ERISA or Section 412 of the Code. To the Purchaser’s Knowledge, no Purchaser Benefit Plan will become a multiple employer plan with respect to any Purchaser Entity immediately after the Closing Date. Neither the Purchaser nor any Subsidiary currently maintains or has ever maintained, or is required currently or has ever been required to contribute to or otherwise participate in, a multiple employer welfare arrangement or voluntary employees’ beneficiary association as defined in Section 501(c)(9) of the Code. For purposes of this Agreement, “ERISA Affiliate” means, with respect to any Person, any Person or entity (whether or not incorporated) that is under common control or treated as one employer under Section 4001(b)(1) of ERISA or Section 414(b), (c), (m) or (o) 4999 of the Code.
Appears in 1 contract
Benefit Plans. (i( ) Set forth on Schedule 3.19(a) is Seller has furnished to Purchaser a true correct, complete and complete list current copy of each material Benefit Plan plan, program, policy or arrangement which is set forth in writing and which provides cash or property or other compensation related benefits of any kind or description whatsoever to or on behalf of any current or former employee of the Purchaser and its Subsidiaries (each, a “Purchaser Benefit Plan”). With respect to each Purchaser Benefit Plan, there are no funded benefit obligations for which contributions have not been materially made or properly accrued and there are no material unfunded benefit obligations that have not been accounted for by reserves, or otherwise properly footnoted in accordance with GAAP on the Purchaser Financials. Except as set forth on Schedule 3.19(a), neither the Purchaser nor any Subsidiary or has in the past been a member of a “controlled group” for purposes of Section 414(b), (c), (m) or (o) of the Code other than with the Purchaser or another Subsidiary, nor does the Purchaser or any Subsidiary have any Liability Seller employed primarily with respect to the Business or any of their dependents and a complete description of any such plan, program, policy or arrangement which is not set forth in writing (collectively-bargained for plans, whether or not subject to the provisions of ERISA"Benefit Plans"). Each Benefit Plan is listed on Schedule 3.11.
(iia) Each Seller has furnished to Purchaser Benefit Plan in a correct, complete and current copy of all material respects is and has been operated in compliance with all applicable Laws in all material respects, including ERISA and the Code. Each Purchaser Benefit Plan which is intended to be “qualified” within the meaning of Section 401(a) of the Code (i) has been determined by the IRS to be so qualified (or is based on a prototype plan which has received a favorable opinion letter) during the period from its adoption to the date of this Agreement and (ii) is funded through a trust exempt from taxation under Section 501(a) of the Code. To the Knowledge of the Purchaser, no fact exists which could adversely affect the qualified status of such Purchaser Benefit Plans or the exempt status of such trusts.
(iii) With respect to each Purchaser Benefit Plan, the Purchaser has employee handbooks currently made available to the Seller accurate and complete copies, if applicable, of: (i) all Purchaser Benefit Plan documents and agreements and related trust agreements or annuity Contracts (including any amendments, modifications or supplements thereto); (ii) all summary plan descriptions and material modifications thereto; (iii) the three (3) most recent Forms 5500, if applicable, and annual report, including all schedules thereto; (iv) the most recent annual and periodic accounting of plan assets; (v) the three (3) most recent nondiscrimination testing reports; (vi) the most recent determination letter received from the IRS, if any; (vii) the most recent actuarial valuation; and (viii) all material written communications between the Purchaser or any Subsidiary or any Purchaser Benefit Plan and any Governmental Authority and relating to a Purchaser Benefit Plan within six (6) years preceding the date of this Agreement.
(iv) With respect to each Purchaser Benefit Plan: (i) such Purchaser Benefit Plan has been administered and enforced in all material respects in accordance with its terms, the Code and ERISA; (ii) neither the Purchaser nor any Subsidiary nor any employee, officer or director thereof that is a fiduciary (under ERISA) Seller's employees with respect to such Purchaser Benefit Plan has breached any of its fiduciary responsibilities, obligations or duties imposed on it by ERISA; the
(iiib) no Action The Seller is pending or threatened in writing (other than routine claims for benefits arising in the ordinary course of administration); (iv) nothing has occurred with respect not a party to any Purchaser Benefit Plan that has subjected employment related contract or agreement of any kind whatsoever relating to the Purchaser or Business, any Subsidiary to any material penalty under Section 502 of ERISA or Section 4975 of the Code; and (v) all contributions and premiums due through the Closing Date have been made in all material respects as required under ERISA or have been fully accrued in all material respects on the Purchaser Financials.
(v) No Purchaser Benefit Plan is, and neither the Purchaser or any Subsidiary or any of their respective ERISA Affiliates sponsors, maintains, contributes to, is required to contribute to, or otherwise has or could reasonably be expected to have any current or contingent Liability under or with respect to, a “defined benefit plan” multiemployer plan (as defined in Section 414(j) of the Code), a “multiemployer plan” (as defined in under Section 3(37) of ERISA) ), which is, or a “multiple employer plan” (as described purports to be, binding in Section 413(c) of the Code) any way whatsoever on Purchaser, and there is no provision in any employment related contract or is otherwise subject to Title IV of ERISA agreement or Section 412 of the Code. To the Purchaser’s Knowledge, no Purchaser Benefit Plan will become specifically imposing any liability on Purchaser.
(c) The Seller has not made a multiple employer plan statement or representation of any kind or description whatsoever to the Company's employees with respect to any their possible employment by Purchaser Entity immediately after or, if employed by Purchaser, their possible compensation or benefit package from Purchaser. 11. Labor Relations. Since January 23, 1996 and, to the Closing Dateknowledge of Seller (based solely upon inquiry of J. Read ▇▇▇▇▇ 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, ▇▇. Neither ▇▇▇▇▇ and certain other individuals), since December 31, 1992, except as set forth in Schedule 3.12, (a) the Purchaser nor any Subsidiary currently maintains or has ever maintained, or is required currently or has ever been required to contribute to or otherwise participate in, a multiple employer welfare arrangement or voluntary employees’ beneficiary association as defined in Section 501(c)(9) employees of the Code. For purposes of this Agreement, “ERISA Affiliate” means, Seller with respect to the 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 Seller has not been and is not a signatory to a collective bargaining agreement with any Personlabor organization that relates to the Business; (c) no representation election petition has been filed by employees of the Seller with respect to the Business or is pending with the NLRB and no union organizing campaign involving employees of the 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, any Person or entity (whether or not incorporatedfiled pursuant to a collective bargaining agreement, has been filed or is pending against the Seller with respect to the Business; (f) that no hand billing, 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 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 common control the Fair Labor Standards Act, ▇▇▇▇▇-▇▇▇▇▇ Act, ▇▇▇▇▇-▇▇▇▇▇▇ Act, or treated Service Contract Act or any other federal, state, local or foreign law, 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 one employer under Section 4001(b)(1) of amended, the Americans with Disabilities Act, the Family and Medical Leave Act, the Fair Labor Standards Act, ERISA or Section 414(b)any other federal law or any comparable state fair employment practices act or foreign law regulating discrimination in the workplace; (j) if the Seller is a federal or state contractor obligated to develop and maintain an affirmative action plan, (c), (m) or (o) of the Code.no discrimination
Appears in 1 contract
Sources: Asset Purchase Agreement (Consolidated Stainless Inc)
Benefit Plans. (i) Set forth on Schedule 3.19(a(bb)(i) is of the Company Disclosure Letter contains a true and complete list of each all material Company Benefit Plan Plans. Current and complete copies of all the Company Benefit Plans as amended as of the Purchaser and its Subsidiaries (each, a “Purchaser Benefit Plan”). With respect to each Purchaser Benefit Plan, there are no funded benefit obligations for which contributions have not been materially made or properly accrued and there are no material unfunded benefit obligations that have not been accounted for by reservesdate hereof, or otherwise properly footnoted in accordance with GAAP on if unwritten a summary of material terms, have been delivered or made available to the Purchaser Financialstogether with (A) any annuity contract, trust agreement, insurance policy, or other funding agreement; and (B) any employee booklet, policy or plan summary. Except as set forth on Schedule 3.19(a)No fact, neither condition or circumstance exists that would materially affect the information contained in the documents required to be provided to the Purchaser nor any Subsidiary or has in the past been a member of a “controlled group” for purposes of pursuant to this Section 414(b(bb)(i), (c), (m) or (o) of the Code other than with the Purchaser or another Subsidiary, nor does the Purchaser or any Subsidiary have any Liability with respect to any collectively-bargained for plans, whether or not subject to the provisions of ERISA.
(ii) No material Company Benefit Plan:
(A) is subject to federal or provincial pension standards legislation;
(B) is a “retirement compensation arrangement”, a “deferred profit sharing plan”, or a “salary deferral arrangement”, as each such term is defined in the Tax Act;
(C) provides for health and welfare benefits which are not fully-insured;
(D) provides for retiree or post-termination benefits to Company Employees or former Company Employees or beneficiaries or dependents thereof (other than as required by applicable Laws); or
(E) except as disclosed in Schedule (bb)(ii) of the Company Disclosure Letter, provides benefits to dependent or independent contractors.
(iii) Each Purchaser Company Benefit Plan in all material respects is is, and has been operated in compliance with all applicable Laws been, established, registered (if required), amended, funded, operated, communicated, administered and invested, in all material respects, including ERISA in compliance with its terms and the Code. Each Purchaser Benefit Plan which is intended all Laws; all employer and employee payments, contributions and premiums required to be “qualified” within the meaning remitted, paid to or in respect of Section 401(a) of the Code (i) has been determined by the IRS to be so qualified (or is based on a prototype plan which has received a favorable opinion letter) during the period from its adoption to the date of this Agreement and (ii) is funded through a trust exempt from taxation under Section 501(a) of the Code. To the Knowledge of the Purchaser, no fact exists which could adversely affect the qualified status of such Purchaser Benefit Plans or the exempt status of such trusts.
(iii) With respect to each Purchaser Company Benefit Plan, as of the Purchaser has made available to the Seller accurate date hereof, have been paid or remitted in a timely fashion in accordance with its terms and complete copies, if applicable, of: (i) all Purchaser Laws; and all obligations in respect of each Company Benefit Plan documents have been properly accrued and agreements and related trust agreements or annuity Contracts (including any amendments, modifications or supplements thereto); (ii) all summary plan descriptions and material modifications thereto; (iii) reflected in the three (3) most recent Forms 5500, if applicable, and annual report, including all schedules thereto; (iv) the most recent annual and periodic accounting of plan assets; (v) the three (3) most recent nondiscrimination testing reports; (vi) the most recent determination letter received from the IRS, if any; (vii) the most recent actuarial valuation; and (viii) all material written communications between the Purchaser or any Subsidiary or any Purchaser Benefit Plan and any Governmental Authority and relating to a Purchaser Benefit Plan within six (6) years preceding the date of this AgreementCompany’s financial statements.
(iv) With respect to each Purchaser Benefit Plan: (i) such Purchaser Benefit Plan has been administered and enforced in all To the knowledge of the Company, there are no investigations by a Governmental Entity or material respects in accordance with its terms, the Code and ERISA; (ii) neither the Purchaser nor any Subsidiary nor any employee, officer or director thereof that is a fiduciary (under ERISA) with respect to such Purchaser Benefit Plan has breached any of its fiduciary responsibilities, obligations or duties imposed on it by ERISA; (iii) no Action is pending or threatened in writing claims (other than routine claims for benefits arising in payment of benefits) pending involving any Company Benefit Plan, and to the ordinary course of administration); (iv) nothing has occurred with respect to any Purchaser Benefit Plan that has subjected the Purchaser or any Subsidiary to any material penalty under Section 502 of ERISA or Section 4975 knowledge of the Code; and Company there exists no state of facts which would reasonably be expected to give rise to such investigations or material claims (v) all contributions and premiums due through the Closing Date have been made in all material respects as required under ERISA or have been fully accrued in all material respects on the Purchaser Financialsother than routine claims for payment of benefits).
(v) No Purchaser Benefit Plan isThere has been no amendment to, and neither or announcement by the Purchaser or any Subsidiary Company or any of their respective ERISA Affiliates sponsors, maintains, contributes to, is required to contribute its Subsidiaries relating to, or otherwise has change in employee participation or could reasonably be expected to have coverage under, any current Company Benefit Plan and no Company Benefit Plan contains provisions permitting retroactive increase or contingent Liability under or with respect topayments on termination which, a “defined benefit plan” in each case, would materially increase the expense of maintaining such plan above the level of the expense incurred therefor for the most recent fiscal year.
(vi) Except as defined disclosed in Section 414(jSchedule (bb)(vi) of the Code)Company Disclosure Letter, neither the execution of this Agreement by the Company nor the consummation of the Arrangement pursuant to the Plan of Arrangement (whether alone or in conjunction with any subsequent events) would result in (A) any Company Employees receiving termination or severance pay or any increase in termination or severance pay upon any termination of employment after the date hereof, (B) acceleration of the time of payment or vesting or result in any payment or funding (through a “multiemployer plan” (as defined in Section 3(37grantor trust or otherwise) of ERISA) compensation or a “multiple employer plan” (as described benefits under, increase the amount payable or result in Section 413(c) any other material obligation pursuant to any of the CodeCompany Benefit Plans, or (C) limiting or is otherwise subject to Title IV of ERISA or Section 412 restricting the right of the Code. To Company or, after the Purchaser’s Knowledgeconsummation of the Arrangement, the Purchaser to merge, amend or terminate any of the Company Benefit Plans, other than those limits or restrictions pursuant to applicable Laws.
(vii) There is no Purchaser entity other than the Company or its Subsidiaries participating in any Company Benefit Plan.
(viii) All data necessary to administer each Company Benefit Plan will become a multiple employer plan with respect to any Purchaser Entity immediately after is in the Closing Date. Neither the Purchaser nor any Subsidiary currently maintains or has ever maintained, or is required currently or has ever been required to contribute to or otherwise participate in, a multiple employer welfare arrangement or voluntary employees’ beneficiary association as defined in Section 501(c)(9) possession of the Code. For purposes of this Agreement, “ERISA Affiliate” means, with respect to any Person, any Person Company or entity (whether its Subsidiaries or not incorporated) that its agents and is under common control or treated as one employer under Section 4001(b)(1) of ERISA or Section 414(b), (c), (m) or (o) in a form which is sufficient for the proper administration of the CodeCompany Benefit Plan in accordance with its terms and, to the knowledge of the Company, such data is complete and correct in all material respects.
Appears in 1 contract
Benefit Plans. (ia) Set forth on Schedule 3.19(a4.19(a) is a true and complete list of each material Benefit Plan of the Purchaser and its Subsidiaries a Target Company (each, a “Purchaser Company Benefit Plan”). With respect to each Purchaser Company Benefit Plan, there are no funded benefit obligations for which contributions have not been materially made or properly accrued and there are no material unfunded benefit obligations that have not been accounted for by reserves, or otherwise properly footnoted in accordance with GAAP on the Purchaser Company Financials. Except as set forth on Schedule 3.19(a), neither the Purchaser nor any Subsidiary No Target Company is or has in the past been a member of a “controlled group” for purposes of Section 414(b), (c), (m) or (o) of the Code other than with the Purchaser or another SubsidiaryCode, nor does the Purchaser or any Subsidiary Target Company have any Liability with respect to any collectively-bargained for plans, whether or not subject to the provisions of ERISA. No statement, either written or oral, has been made by any Target Company to any Person with regard to any Company Benefit Plan that was not in accordance with the Company Benefit Plan in any material respect.
(iib) Each Purchaser Company Benefit Plan in all material respects is and has been operated at all times in compliance with all applicable Laws in all material respects, including ERISA and the Code. Each Purchaser Company Benefit Plan which is intended to be “qualified” within the meaning of Section 401(a) of the Code (i) has been determined by the IRS to be so qualified (or is based on a prototype plan which has received a favorable opinion letter) during the period from its adoption to the date of this Agreement and (ii) is funded through a its related trust has been determined to be exempt from taxation under Section 501(a) of the CodeCode or the Target Companies have requested an initial favorable IRS determination of qualification and/or exemption within the period permitted by applicable Law. To the Knowledge of the Purchaser, no No fact exists which could adversely affect the qualified status of such Purchaser Company Benefit Plans or the exempt status of such trusts.
(iiic) With respect to each Purchaser Company Benefit PlanPlan which covers any current or former officer, director, consultant or employee (or beneficiary thereof) of a Target Company, the Company has provided to Purchaser has made available to the Seller accurate and complete copies, if applicable, of: (i) all Purchaser Company Benefit Plan documents texts and agreements and related trust agreements or annuity Contracts (including any amendments, modifications or supplements thereto); (ii) all summary plan descriptions and material modifications thereto; (iii) the three (3) most recent Forms 5500, if applicable, and annual report, including all schedules thereto; (iv) the most recent annual and periodic accounting of plan assets; (v) the three (3) most recent nondiscrimination testing reports; (vi) the most recent determination letter received from the IRS, if any; (vii) the most recent actuarial valuation; and (viii) all material written communications between the Purchaser or any Subsidiary or any Purchaser Benefit Plan and with any Governmental Authority and relating to a Purchaser Benefit Plan within six (6) years preceding the date of this AgreementAuthority.
(ivd) With respect to each Purchaser Company Benefit Plan: (i) such Purchaser Company Benefit Plan has been administered and enforced in all material respects in accordance with its terms, the Code and ERISA; (ii) neither the Purchaser nor any Subsidiary nor any employee, officer or director thereof that is a no breach of fiduciary (under ERISA) with respect to such Purchaser Benefit Plan duty has breached any of its fiduciary responsibilities, obligations or duties imposed on it by ERISAoccurred; (iii) no Action is pending pending, or to the Company’s Knowledge, threatened in writing (other than routine claims for benefits arising in the ordinary course of administration); (iv) nothing has occurred with respect to any Purchaser Benefit Plan that has subjected the Purchaser or any Subsidiary to any material penalty under no prohibited transaction, as defined in Section 502 406 of ERISA or Section 4975 of the Code, has occurred, excluding transactions effected pursuant to a statutory or administration exemption; and (v) all contributions and premiums due through the Closing Date have been made in all material respects as required under ERISA or have been fully accrued in all material respects on the Purchaser Company Financials.
(ve) No Purchaser Company Benefit Plan is, and neither the Purchaser or any Subsidiary or any of their respective ERISA Affiliates sponsors, maintains, contributes to, is required to contribute to, or otherwise has or could reasonably be expected to have any current or contingent Liability under or with respect to, a “defined benefit plan” (as defined in Section 414(j) of the Code), a “multiemployer plan” (as defined in Section 3(37) of ERISA) or a “multiple employer plan” (as described in Section 413(c) of the Code) or is otherwise subject to Title IV of ERISA or Section 412 of the Code, and no Target Company has incurred any Liability or otherwise could have any Liability, contingent or otherwise, under Title IV of ERISA and no condition presently exists that is expected to cause such Liability to be incurred. To the Purchaser’s Knowledge, no Purchaser No Company Benefit Plan will become a multiple employer plan with respect to any Purchaser Entity Target Company immediately after the Closing Date. Neither the Purchaser nor any Subsidiary No Target Company currently maintains or has ever maintained, or is required currently or has ever been required to contribute to or otherwise participate in, a multiple employer welfare arrangement or voluntary employees’ beneficiary association as defined in Section 501(c)(9) of the Code. For purposes of this Agreement, “ERISA Affiliate” means, .
(f) There is no arrangement under any Company Benefit Plan with respect to any Personemployee that would result in the payment of any amount that by operation of Sections 280G or 162(m) of the Code would not be deductible by the Target Companies and no arrangement exists pursuant to which a Target Company will be required to “gross up” or otherwise compensate any person because of the imposition of any excise tax on a payment to such person.
(g) With respect to each Company Benefit Plan which is a “welfare plan” (as described in Section 3(1) of ERISA): (i) no such plan provides medical or death benefits with respect to current or former employees of a Target Company beyond their termination of employment (other than coverage mandated by Law, which is paid solely by such employees); and (ii) there are no reserves, assets, surplus or prepaid premiums under any such plan. Each Target Company has complied with the provisions of Section 601 et seq. of ERISA and Section 4980B of the Code.
(h) The consummation of the transactions contemplated by this Agreement and the Ancillary Documents will not: (i) entitle any individual to severance pay, unemployment compensation or other benefits or compensation; (ii) accelerate the time of payment or vesting, or increase the amount of any compensation due, or in respect of, any Person individual; or entity (whether iii) result in or not incorporated) satisfy a condition to the payment of compensation that is would, in combination with any other payment, result in an “excess parachute payment” within the meaning of Section 280G of the Code. No Target Company has incurred any Liability for any Tax imposed under common control Chapter 43 of the Code or treated as one employer civil liability under Section 4001(b)(1) of ERISA or Section 414(b), (c), (m502(i) or (ol) of ERISA.
(i) Except to the extent required by Section 4980B of the Code or similar state Law, no Target Company provides health or welfare benefits to any former or retired employee or is obligated to provide such benefits to any active employee following such employee’s retirement or other termination of employment or service.
(j) All Company Benefit Plans can be terminated at any time as of or after the Closing Date without resulting in any Liability to the Surviving Corporation or Purchaser or their respective Affiliates for any additional contributions, penalties, premiums, fees, fines, excise taxes or any other charges or liabilities.
(k) Each Company Benefit Plan that is subject to Section 409A of the Code (each, a “Section 409A Plan”) as of the Closing Date is indicated as such on Schedule 4.19(k). No Company Options or other equity-based awards have been issued or granted by the Company that are, or are subject to, a Section 409A Plan. Each Section 409A Plan has been administered in compliance, and is in documentary compliance, with the applicable provisions of Section 409A of the Code, the regulations thereunder and other official guidance issued thereunder. No Target Company has any obligation to any employee or other service provider with respect to any Section 409A Plan that may be subject to any Tax under Section 409A of the Code. No payment to be made under any Section 409A Plan is, or to the Knowledge of the Company will be, subject to the penalties of Section 409A(a)(1) of the Code. There is no Contract or plan to which any Target Company is a party or by which it is bound to compensate any employee, consultant or director for penalty taxes paid pursuant to Section 409A of the Code.
Appears in 1 contract
Benefit Plans. (ia) Set forth on Schedule 3.19(aSection 6.19(a) of the Company Disclosure Schedules is a true and complete list of each material Benefit Foreign Plan of the Purchaser and its Subsidiaries a Target Company (each, a “Purchaser Company Benefit Plan”). With respect No Target Company has within the past ten (10) years maintained or contributed to each Purchaser (or had an obligation to contribute to) any Benefit Plan, there are no funded benefit obligations for which contributions have not been materially made or properly accrued and there are no material unfunded benefit obligations that have not been accounted for by reserves, or otherwise properly footnoted in accordance with GAAP on the Purchaser Financials. Except as set forth on Schedule 3.19(a), neither the Purchaser nor any Subsidiary or has in the past been a member of a “controlled group” for purposes of Section 414(b), (c), (m) or (o) of the Code other than with the Purchaser or another Subsidiary, nor does the Purchaser or any Subsidiary have any Liability with respect to any collectively-bargained for plans, whether or not subject to the provisions of ERISA, which is not a Foreign Plan.
(ii) Each Purchaser Benefit Plan in all material respects is and has been operated in compliance with all applicable Laws in all material respects, including ERISA and the Code. Each Purchaser Benefit Plan which is intended to be “qualified” within the meaning of Section 401(a) of the Code (i) has been determined by the IRS to be so qualified (or is based on a prototype plan which has received a favorable opinion letter) during the period from its adoption to the date of this Agreement and (ii) is funded through a trust exempt from taxation under Section 501(a) of the Code. To the Knowledge of the Purchaser, no fact exists which could adversely affect the qualified status of such Purchaser Benefit Plans or the exempt status of such trusts.
(iiib) With respect to each Purchaser material Company Benefit PlanPlan which covers any current or former officer, director, individual consultant or employee (or beneficiary thereof) of a Target Company, the Purchaser Company has made available to the Seller Purchaser accurate and complete copies, if applicable, of: (i) all Purchaser Benefit Plan the current plan documents and agreements and related trust agreements or annuity Contracts (including any amendments, modifications or supplements thereto), and written descriptions of any material Company Benefit Plans which are not in writing; (ii) all summary plan descriptions and material modifications thereto; (iii) the three (3) most recent Forms 5500, if applicable, and annual report, including all schedules thereto; (iv) the most recent annual and periodic accounting of plan assets; (v) the three (3) most recent nondiscrimination testing reports; (vi) the most recent determination letter received from the IRS, if any; (vii) the most recent actuarial valuation; and (viiiiii) all material written communications between in the Purchaser or any Subsidiary or any Purchaser Benefit Plan and past five (5) years with any Governmental Authority and relating to concerning any matter that is still pending or for which a Purchaser Benefit Plan within six (6) years preceding the date of this AgreementTarget Company has any outstanding material Liability.
(ivc) With Except as set forth on Section 6.19(c) of the Company Disclosure Schedules, with respect to each Purchaser Company Benefit Plan: (i) such Purchaser Company Benefit Plan has been administered and enforced in all material respects in accordance with its termsterms and the requirements of all applicable Laws, the Code and ERISAhas been maintained, where required, in good standing in all material respects with applicable regulatory authorities and Governmental Authorities; (ii) neither the Purchaser nor no breach of fiduciary duty that would result in material Liability to any Subsidiary nor any employee, officer or director thereof that is a fiduciary (under ERISA) with respect to such Purchaser Benefit Plan Target Company has breached any of its fiduciary responsibilities, obligations or duties imposed on it by ERISAoccurred; (iii) no Action that would result in a material Liability to any Target Company is pending pending, or to the Company’s Knowledge, threatened in writing (other than routine claims for benefits arising in the ordinary course of administration); (iv) nothing has occurred all contributions, premiums and other payments (including any special contribution, interest or penalty) required to be made with respect to any Purchaser a Company Benefit Plan that has subjected the Purchaser or any Subsidiary to any material penalty under Section 502 of ERISA or Section 4975 of the Codehave been timely made; and (v) all contributions and premiums due through the Closing Date benefits accrued under any unfunded Company Benefit Plan have been made timely made, and (vi) no Company Benefit Plan provides for retroactive increases in contributions, premiums or other payments in relation thereto. No Target Company has incurred any material obligation in connection with the termination of, or withdrawal from, any Company Benefit Plan. The Target Companies are, and have since their respective incorporation been, in compliance in all material respects as required under ERISA or have been fully accrued in with all material respects on applicable Laws regarding the Purchaser FinancialsChina Social Benefits.
(vd) No Purchaser Benefit Plan isTo the extent applicable, and neither the Purchaser or any Subsidiary or any of their respective ERISA Affiliates sponsors, maintains, contributes to, is required to contribute to, or otherwise has or could reasonably be expected to have any current or contingent Liability under or with respect to, a “defined benefit plan” (as defined in Section 414(j) present value of the Code), a “multiemployer plan” (as defined in Section 3(37) of ERISA) or a “multiple employer plan” (as described in Section 413(c) of the Code) or is otherwise subject to Title IV of ERISA or Section 412 of the Code. To the Purchaser’s Knowledge, no Purchaser Benefit Plan will become a multiple employer plan with respect to any Purchaser Entity immediately after the Closing Date. Neither the Purchaser nor any Subsidiary currently maintains or has ever maintained, or is required currently or has ever been required to contribute to or otherwise participate in, a multiple employer welfare arrangement or voluntary employees’ beneficiary association as defined in Section 501(c)(9) of the Code. For purposes of this Agreement, “ERISA Affiliate” means, with respect to any Person, any Person or entity accrued benefit liabilities (whether or not incorporatedvested) that is under common control each Company Benefit Plan, determined as of the end of the Company’s most recently ended fiscal year on the basis of reasonable actuarial assumptions, did not materially exceed the current value of the assets of such Company Benefit Plan allocable to such benefit liabilities.
(e) The consummation of the Transactions contemplated by this Agreement and the Ancillary Documents will not: (i) entitle any individual to severance pay, unemployment compensation or treated as one employer other benefits or compensation under Section 4001(b)(1) of ERISA any Company Benefit Plan or Section 414(b), (c), (m) under any applicable Law; or (oii) accelerate the time of payment or vesting, or increase the Codeamount of any compensation due, or in respect of, any director, employee or independent contractor of a Target Company.
(f) Except to the extent required by applicable Law, no Target Company provides health, life insurance or welfare benefits to any former or retired employee or is obligated to provide such benefits to any active employee following such employee’s retirement or other termination of employment or service.
Appears in 1 contract
Sources: Business Combination Agreement (Golden Star Acquisition Corp)
Benefit Plans. (a) Seller has established the following funds to provide for the payment of retirement benefits and gratuity benefits to the Business Employees:
(i) Set forth on Schedule 3.19(a) is a true contributory provident fund pursuant to the Employees’ Provident Funds and complete list Miscellaneous Provisions Act, 1952 to provide for the payment of each material Benefit Plan of provident fund benefits to the Purchaser Business Employees and its Subsidiaries other employees (each, a the “Purchaser Benefit PlanProvident Fund”). With respect to each Purchaser Benefit Plan, there are no funded benefit obligations for which contributions have not been materially made or properly accrued and there are no material unfunded benefit obligations that have not been accounted for by reserves, or otherwise properly footnoted in accordance with GAAP on the Purchaser Financials. Except as set forth on Schedule 3.19(a), neither the Purchaser nor any Subsidiary or has in the past been a member of a “controlled group” for purposes of Section 414(b), (c), (m) or (o) of the Code other than with the Purchaser or another Subsidiary, nor does the Purchaser or any Subsidiary have any Liability with respect to any collectively-bargained for plans, whether or not subject to the provisions of ERISA.;
(ii) Each Purchaser Benefit Plan in all material respects is and has been operated in compliance with all applicable Laws in all material respects, including ERISA and a superannuation fund registered under the Code. Each Purchaser Benefit Plan which is intended to be “qualified” within the meaning of Section 401(a) provisions of the Code Tax Act to provide for the payment of superannuation benefits to its Business Employees and other employees who are covered under such scheme (i) has been determined by the IRS to be so qualified (or is based on a prototype plan which has received a favorable opinion letter) during the period from its adoption to the date of this Agreement and (ii) is funded through a trust exempt from taxation under Section 501(a) of the Code. To the Knowledge of the Purchaser, no fact exists which could adversely affect the qualified status of such Purchaser Benefit Plans or the exempt status of such trusts.“Superannuation Fund”); and
(iii) With respect to each Purchaser Benefit Plan, the Purchaser has made available a gratuity fund pursuant to the Seller accurate Payment of ▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇, for the payment of gratuity benefits to its Business Employees and complete copies, if applicable, of: other employees (i) all Purchaser Benefit Plan documents and agreements and related trust agreements or annuity Contracts (including any amendments, modifications or supplements theretothe “Gratuity Fund”); (ii) all summary plan descriptions and material modifications thereto; (iii) the three (3) most recent Forms 5500, if applicable, and annual report, including all schedules thereto; (iv) the most recent annual and periodic accounting of plan assets; (v) the three (3) most recent nondiscrimination testing reports; (vi) the most recent determination letter received from the IRS, if any; (vii) the most recent actuarial valuation; and (viii) all material written communications between the Purchaser or any Subsidiary or any Purchaser Benefit Plan and any Governmental Authority and relating to a Purchaser Benefit Plan within six (6) years preceding the date of this Agreement.
(ivb) With respect Prior to each Purchaser Benefit Plan: (i) such Purchaser Benefit Plan has been administered and enforced in the Closing Date, Seller shall make all material respects in accordance with its termscontributions required to be made to the Provident Fund, the Code Superannuation Fund and ERISA; the Gratuity Fund (ii) neither the Purchaser nor any Subsidiary nor any employee, officer or director thereof that is a fiduciary (under ERISA“Funds”) with respect to the Business Employees by applicable Law and the terms of such Purchaser Benefit Plan has breached any of its fiduciary responsibilities, obligations or duties imposed on it by ERISA; (iii) no Action is pending or threatened in writing (other than routine claims for benefits arising Funds in the ordinary course of administration); (iv) nothing has occurred period prior to the Closing, and shall pay all premiums and any other amounts due or payable to the Funds with respect to any Purchaser Benefit Plan the Business Employees so as to ensure that has subjected all the Funds are fully funded as of the Closing in accordance with Section 8.3(b), and no payment, contribution or premium is required to be paid to the Funds with respect to the Business Employees for the period prior to the Closing.
(c) Seller and its Affiliates shall provide the statutory auditor of Seller with all reasonable documentation and information requested by the statutory auditor in the preparation of the certificate required pursuant to Section 4.2(a)(xiii). Purchaser or any Subsidiary representative or professional advisor of Purchaser may, at Purchaser’s sole cost and expense and during normal working hours, examine the work papers and the methodology employed by the statutory auditor of Seller with respect to any material penalty under Section 502 of ERISA or Section 4975 the preparation of the Code; and (v) all contributions and premiums due through the Closing Date have been made in all material respects as required under ERISA or have been fully accrued in all material respects on the Purchaser Financialscertificate.
(vd) No Purchaser Benefit Plan is, Seller and neither its Affiliates shall provide the Purchaser or any Subsidiary or any of their respective ERISA Affiliates sponsors, maintains, contributes to, is required actuary selected pursuant to contribute to, or otherwise has or could reasonably be expected to have any current or contingent Liability under or Section 8.3(a) with respect to, a “defined benefit plan” (as defined all reasonable documentation and information requested by such actuary in Section 414(j) the preparation of the Codeactuarial valuation report required pursuant to Section 4.2(a)(xiv), a “multiemployer plan” (as defined in Section 3(37) of ERISA) or a “multiple employer plan” (as described in Section 413(c) of the Code) or is otherwise subject to Title IV of ERISA or Section 412 of the Code. To the Purchaser’s Knowledge, no Purchaser Benefit Plan will become a multiple employer plan with respect to any Purchaser Entity immediately after the Closing Date. Neither the Purchaser nor any Subsidiary currently maintains or has ever maintained, or is required currently or has ever been required to contribute to or otherwise participate in, a multiple employer welfare arrangement or voluntary employees’ beneficiary association as defined in Section 501(c)(9) of the Code. For purposes of this Agreement, “ERISA Affiliate” means, with respect to any Person, any Person or entity (whether or not incorporated) that is under common control or treated as one employer under Section 4001(b)(1) of ERISA or Section 414(b), (c), (m) or (o) of the Code.
Appears in 1 contract
Benefit Plans. (a) The Disclosure Schedule lists all "Seller Pension Plans," "Seller Welfare Plans," "Seller Benefit Arrangements," and material incentive, bonus, supplementary benefit, club membership, retention and similar "Current Compensation" plans and "Transferred Plans," as such terms are defined in the Personnel Agreement (collectively, "Plans"). Seller has made available to Buyer true and complete copies of (i) Set forth the Plans and related trust agreements, funding agreements or other agreements or contracts evidencing any funding vehicle with respect thereto; (ii) the three most recent annual reports on Schedule 3.19(a) is a true Treasury Form 5500, including all schedules and complete list of each material Benefit Plan of the Purchaser and its Subsidiaries (each, a “Purchaser Benefit Plan”). With respect to each Purchaser Benefit Plan, there are no funded benefit obligations for which contributions have not been materially made or properly accrued and there are no material unfunded benefit obligations that have not been accounted for by reservesattachments thereto, or otherwise properly footnoted any other annual return required to be filed in accordance with GAAP on a jurisdiction outside the Purchaser Financials. Except as set forth on Schedule 3.19(a), neither the Purchaser nor any Subsidiary or has in the past been a member of a “controlled group” for purposes of Section 414(b), (c), (m) or (o) of the Code other than with the Purchaser or another Subsidiary, nor does the Purchaser or any Subsidiary have any Liability U.S. with respect to any collectively-bargained Plan for plans, whether or not subject to the provisions of ERISA.
(ii) Each Purchaser Benefit Plan in all material respects which such a report is and has been operated in compliance with all applicable Laws in all material respects, including ERISA and the Code. Each Purchaser Benefit Plan which is intended to be “qualified” within the meaning of Section 401(a) of the Code (i) has been determined by the IRS to be so qualified (or is based on a prototype plan which has received a favorable opinion letter) during the period from its adoption to the date of this Agreement and (ii) is funded through a trust exempt from taxation under Section 501(a) of the Code. To the Knowledge of the Purchaser, no fact exists which could adversely affect the qualified status of such Purchaser Benefit Plans or the exempt status of such trusts.
(iii) With respect to each Purchaser Benefit Plan, the Purchaser has made available to the Seller accurate and complete copies, if applicable, of: (i) all Purchaser Benefit Plan documents and agreements and related trust agreements or annuity Contracts (including any amendments, modifications or supplements thereto); (ii) all summary plan descriptions and material modifications theretorequired; (iii) the three (3) most recent Forms 5500actuarial reports with respect to any Plan that is subject to Title IV of the Employee Retirement Income Security Act of 1974, if applicableas amended ("ERISA"), and annual report, including all schedules theretoor any other Plan in respect of which such actuarial reports have been prepared; (iv) the most recent annual form of summary plan description, including any summary of material modifications thereto or other modifications communicated to participants, currently in effect with respect to each Plan; and periodic accounting of plan assets; (v) the three (3) most recent nondiscrimination testing reports; (vi) the most recent determination letter received from with respect to each Plan intended to qualify under Section 401(a) of the IRSCode.
(b) Except as set forth in the Disclosure Schedule:
(i) Except as provided for in Section 4.1(d) of the Personnel Agreement, if any; (vii) the most recent actuarial valuation; and (viii) each Transferred Plan has been administered in all material respects consistently with its written communications between terms and Seller and each of the Purchaser CD Int Subsidiaries has complied in connection with each Transferred Plan in all material respects with applicable provisions of ERISA, the Code and any other applicable law of the United States or of any other applicable jurisdiction, including, without limitation, the qualification provisions of Code Section 401(a) for each Plan intended to qualify thereunder.
(ii) There is no pending or, to the knowledge of Seller, threatened legal action or proceeding or investigation against any Transferred Plan, the assets or any Subsidiary of the trusts under such plans or the plan sponsor or the plan administrator or against any Purchaser Benefit Plan fiduciary of the Transferred Plans that would reasonably be expected to have a material adverse effect on the CD Int Business and there is no basis for any Governmental Authority and relating such claim or lawsuit.
(iii) No CD Int Entity has made any plan or commitment, whether or not legally binding, to create any additional plan or modify or change any existing plan that would, individually or in the aggregate, reasonably be expected to, directly or indirectly, have a material adverse effect on the CD Int Business.
(iv) No CD Int Entity has incurred any outstanding liability under Section 4062 of ERISA or to the PBGC, to a Purchaser Benefit Plan within six trust established under Section 4041 or 4042 of ERISA or to a trustee appointed under ERISA Section 4042.
(6v) years preceding None of the date Transferred Plans contains any provisions which would prohibit the transactions contemplated by this Agreement and none of the Transferred Plans, other than any Retention Agreement listed on Schedule 2.3 to the Personnel Agreement or employment agreement with Da▇▇ ▇▇▇▇▇, would give rise to any material severance, termination or other payments as a result of the transactions contemplated by this Agreement.
(ivvi) With respect to each Purchaser Benefit Plan: (i) such Purchaser Benefit Pension Plan has been administered and enforced in all material respects in accordance with its terms, the Code and ERISA; (ii) neither the Purchaser nor any Subsidiary nor any employee, officer or director thereof that is a fiduciary (under ERISA) with respect to such Purchaser Benefit Plan has breached any of its fiduciary responsibilities, obligations or duties imposed on it by ERISA; (iii) no Action is pending or threatened in writing (other than routine claims for benefits arising in the ordinary course of administration); (iv) nothing has occurred with respect to any Purchaser Benefit Plan that has subjected the Purchaser or any Subsidiary to any material penalty under Section 502 of ERISA or Section 4975 of the Code; and (v) all contributions and premiums due through the Closing Date have been made in all material respects as required under ERISA or have been fully accrued in all material respects on the Purchaser Financials.
(v) No Purchaser Benefit Plan is, and neither the Purchaser or any Subsidiary or any of their respective ERISA Affiliates sponsors, maintains, contributes to, is required to contribute to, or otherwise has or could reasonably be expected to have any current or contingent Liability under or with respect to, a “defined benefit plan” (as defined in Section 414(jthe Personnel Agreement) that the Seller (including any member of the Codecontrolled group of corporations, within the meaning of Code Section 1563, which includes the Seller) maintains or ever has maintained, or to which any of them contributes, ever has contributed or ever been required to contribute, neither Seller nor any member of its controlled group of corporations (as referenced above) has incurred or has any reason to expect that it will incur any liability to the PBGC (other than PBGC premium payments) or otherwise under Title IV of ERISA (including any withdrawal liability).
(vii) None of the CD Int Entities or other members of their controlled group of corporations (as referenced above) contributes to, a “multiemployer plan” ever has contributed to, or ever has been required to contribute to any Multiemployer Plan (as defined in Section 3(37) of ERISA) or a “multiple employer plan” has any liability (as described in Section 413(cincluding withdrawal liability) under any Multiemployer Plan.
(viii) None of the CodeTransferred Plans that are Welfare Benefit Plans (including any Seller maintained retiree medical or life benefit plans) contain vested benefits that may not be changed. Each such plan may be amended or is otherwise subject to Title IV of ERISA terminated at any time by the Seller (or Section 412 of the Code. To the Purchaser’s Knowledge, appropriate CD Int Subsidiary) and no Purchaser Benefit Plan will become a multiple employer such plan with respect to contains any Purchaser Entity immediately provision that would prevent Buyer from amending or terminating any plan maintained by it on or after the Closing Date. Neither the Purchaser nor Buyer acknowledges that such rights to amend or terminate such plans are subject to applicable collective bargaining agreements and other applicable law.
(ix) No CD Int Entity is obligated to make any Subsidiary currently maintains or has ever maintained, payment or is required currently or has ever been required to contribute to or otherwise participate in, a multiple employer welfare arrangement or voluntary employees’ beneficiary association as defined in Section 501(c)(9) of the Code. For purposes of this Agreement, “ERISA Affiliate” means, with respect party to any Person, agreement that under any Person circumstances could obligate Buyer or entity (whether any CD Int Entity to make any payment that will not be deductible in whole or not incorporated) that is under common control or treated as one employer under in part by reason of Section 4001(b)(1) of ERISA or Section 414(b), (c), (m) or (o) 280G of the Code.
(x) Seller has delivered or otherwise made available to Buyer the most recent listing of open workers' compensation claims for the CD Int Business.
Appears in 1 contract
Benefit Plans. (ia) Set forth on Schedule 3.19(a4.19(a) is a true and complete list of each material Benefit Plan of the Purchaser and its Subsidiaries Company (each, a “Purchaser Company Benefit Plan”). With respect to each Purchaser Company Benefit Plan, there are no funded benefit obligations for which contributions have not been materially made or properly accrued and there are no material unfunded benefit obligations that have not been accounted for by reserves, or otherwise properly footnoted in accordance with GAAP on the Purchaser Company Financials. Except as set forth on Schedule 3.19(a), neither the Purchaser The Company is not nor any Subsidiary or has it in the past six (6) years been a member of a “controlled group” for purposes of Section 414(b), (c), (m) or (o) of the Code other than with the Purchaser or another SubsidiaryCode, nor does the Purchaser or any Subsidiary have Company has any Liability with respect to any collectively-bargained for plans, whether or not subject to the provisions of ERISA. No statement, either written or oral, has been made by the Company to any Person with regard to any Company Benefit Plan that was not in accordance with the Company Benefit Plan in any material respect.
(iib) Each Purchaser Company Benefit Plan in all material respects is and has been operated and administered at all times in compliance with all applicable Laws in all material respects, including ERISA and the Code. Each Purchaser Company Benefit Plan which is intended to be “qualified” within the meaning of Section 401(a) of the Code (i) has been determined by the IRS to be so qualified (or is based on a prototype plan which has received a favorable opinion letter) during the period from its adoption to the date of this Agreement and (ii) is funded through a its related trust has been determined to be exempt from taxation under Section 501(a) of the CodeCode or the Company has requested an initial favorable IRS determination of qualification and/or exemption within the period permitted by applicable Law. To the Knowledge of the PurchaserCompany’s Knowledge, no fact exists which could would reasonably be expected to adversely affect the qualified status of such Purchaser Company Benefit Plans or the exempt status of such trusts.
(iiic) With respect to each Purchaser Company Benefit PlanPlan which covers any current or former officer, director, consultant or employee (or beneficiary thereof) of the Company, the Company has provided to Purchaser has made available to the Seller accurate and complete copies, if applicable, of: (i) all Purchaser Company Benefit Plan documents texts and agreements and related trust agreements or annuity Contracts (including any amendments, modifications or supplements thereto); (ii) all summary plan descriptions and material modifications thereto; (iii) the three (3) most recent Forms 5500, if applicable, and annual report, including all schedules thereto; (iv) the most recent annual and periodic accounting of plan assets; (v) the three (3) most recent nondiscrimination testing reports; (vi) the most recent determination letter received from the IRS, if any; (vii) the most recent actuarial valuation; and (viii) all material written communications between the Purchaser or any Subsidiary or any Purchaser Benefit Plan and with any Governmental Authority and relating to a Purchaser Benefit Plan within six (6) years preceding the date of this AgreementAuthority.
(ivd) With respect to each Purchaser Company Benefit Plan: (i) such Purchaser Company Benefit Plan has been administered and enforced in all material respects in accordance with its terms, the Code and ERISA; (ii) neither the Purchaser nor any Subsidiary nor any employee, officer or director thereof that is a no breach of fiduciary (under ERISA) with respect to such Purchaser Benefit Plan duty has breached any of its fiduciary responsibilities, obligations or duties imposed on it by ERISAoccurred; (iii) no Action is pending pending, or to the Company’s Knowledge, threatened in writing (other than routine claims for benefits arising in the ordinary course of administration); (iv) nothing has occurred with respect to any Purchaser Benefit Plan that has subjected the Purchaser or any Subsidiary to any material penalty under no prohibited transaction, as defined in Section 502 406 of ERISA or Section 4975 of the Code, has occurred, excluding transactions effected pursuant to a statutory or administration exemption; and (v) all contributions and premiums due through the Closing Date have been made in all material respects as required under ERISA or have been fully accrued in all material respects on the Purchaser Company Financials.
(ve) No Purchaser Company Benefit Plan is, and neither the Purchaser or any Subsidiary or any of their respective ERISA Affiliates sponsors, maintains, contributes to, is required to contribute to, or otherwise has or could reasonably be expected to have any current or contingent Liability under or with respect to, a “defined benefit plan” (as defined in Section 414(j) of the Code), a “multiemployer plan” (as defined in Section 3(37) of ERISA) or a “multiple employer plan” (as described in Section 413(c) of the Code) or is otherwise subject to Title IV of ERISA or Section 412 of the Code, and the Company has no Liability or otherwise could reasonably be expected to have any Liability, contingent or otherwise, under Title IV of ERISA and no condition presently exists that is expected to cause such Liability to be incurred. To the Purchaser’s Knowledge, no Purchaser No Company Benefit Plan will become a multiple employer plan with respect to any Purchaser Entity the Company immediately after the Closing Date. Neither The Company does not currently maintain nor has in the Purchaser nor any Subsidiary currently maintains or has ever past six (6) years maintained, or nor is required currently or and has ever in the past six (6) years never been required to contribute to or otherwise participate in, a multiple employer welfare arrangement or voluntary employees’ beneficiary association as defined in Section 501(c)(9) of the Code. For purposes of this Agreement, “ERISA Affiliate” means, .
(f) There is no arrangement under any Company Benefit Plan with respect to any Person, employee that would result in the payment of any Person amount that by operation of Sections 280G of the Code would not be deductible by the Company and no arrangement exists pursuant to which the Company will be required to “gross up” or entity otherwise compensate any person because of the imposition of any excise tax on a payment to such person.
(whether or not incorporatedg) that With respect to each Company Benefit Plan which is under common control or treated a “welfare plan” (as one employer under described in Section 4001(b)(13(1) of ERISA): (i) no such plan provides medical or death benefits with respect to current or former employees (or a dependent or beneficiary thereof) of the Company beyond their termination of employment (other than coverage mandated by Law, which is paid solely by such employees, dependents or beneficiaries); and (ii) there are no reserves, assets, surplus or prepaid premiums under any such plan. The Company has complied in all material respects with the provisions of Section 601 et seq. of ERISA or and Section 414(b), (c), (m) or (o) 4980B of the Code.
(h) The Company and each Company Benefit Plan that is a “group health plan” as defined in Section 733(a)(1) of ERISA (each, a “Health Plan”) is and has been for the past six (6) years in compliance, in all material respects, with the Patient Protection and Affordable Care Act of 2010, and, to the Knowledge of the Company, no event has occurred, and no condition or circumstance exists, that would subject the Company or any Health Plan to any material Liability for penalties or excise Taxes under Sections 4980D or 4980H of the Code.
(i) The consummation of the transactions contemplated by this Agreement and the Ancillary Documents will not: (i) entitle any individual to severance pay, unemployment compensation or other benefits or compensation; (ii) accelerate the time of payment or vesting, or increase the amount of any compensation due, or in respect of, any individual; or (iii) result in or satisfy a condition to the payment of compensation that would, in combination with any other payment, result in an “excess parachute payment” within the meaning of Section 280G of the Code. The Company has not incurred any Liability for any Tax imposed under Chapter 43 of the Code or civil liability under Section 502(i) or (l) of ERISA.
(j) Except to the extent required by Section 4980B of the Code or similar state Law, the Company provides no health or welfare benefits to any former or retired employee or is obligated to provide such benefits to any active employee following such employee’s retirement or other termination of employment or service.
(k) Each Company Benefit Plan subject to Section 409A of the Code has been operated, administered and is in documentary compliance with the applicable provisions of Section 409A of the Code, the regulations thereunder and other official guidance issued thereunder. There is no Contract or plan to which the Company is a party or by which it is bound to compensate any employee, consultant or director for penalty taxes paid pursuant to Section 409A of the Code.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Deep Medicine Acquisition Corp.)
Benefit Plans. (ia) Set forth on Schedule 3.19(a3.18(a) is a true and complete list of each material Benefit Plan of the Purchaser and its Subsidiaries Company maintains (each, a “Purchaser Company Benefit Plan”). With respect to each Purchaser Company Benefit Plan, there are no funded benefit obligations for which contributions have not been materially made or properly accrued and there are no material unfunded benefit obligations that have not been accounted for by reserves, or otherwise properly footnoted in accordance with GAAP on the Purchaser Company Financials. Except as set forth on Schedule 3.19(a), neither the Purchaser The Company is not nor any Subsidiary or has in the past been a member of a “controlled group” for purposes of Section 414(b), (c), (m) or (o) of the Code other than with the Purchaser or another SubsidiaryCode, nor does the Purchaser or any Subsidiary Company have any Liability with respect to any collectively-bargained for plans, whether or not subject to the provisions of ERISA. No statement, either written or oral, has been made by the Company to any Person with regard to any Company Benefit Plan that was not in accordance with the Company Benefit Plan in any material respect.
(iib) Each Purchaser Company Benefit Plan in all material respects is and has been operated at all times in compliance with all applicable Laws in all material respects, including ERISA and the Code. Each Purchaser Company Benefit Plan which is intended to be “qualified” within the meaning of Section 401(a) of the Code (i) has been determined by the IRS to be so qualified (or is based on a prototype plan which has received a favorable opinion letter) during the period from its adoption to the date of this Agreement and (ii) is funded through a its related trust has been determined to be exempt from taxation under Section 501(a) of the CodeCode or the Company have requested an initial favorable IRS determination of qualification and/or exemption within the period permitted by applicable Law. To the Knowledge of the Purchaser, no No fact exists which could adversely affect the qualified status of such Purchaser Company Benefit Plans or the exempt status of such trusts.
(iiic) With respect to each Purchaser Benefit Plan, the Purchaser has made available to the Seller accurate and complete copies, if applicable, of: (i) all Purchaser Benefit Plan documents and agreements and related trust agreements or annuity Contracts (including any amendments, modifications or supplements thereto); (ii) all summary plan descriptions and material modifications thereto; (iii) the three (3) most recent Forms 5500, if applicable, and annual report, including all schedules thereto; (iv) the most recent annual and periodic accounting of plan assets; (v) the three (3) most recent nondiscrimination testing reports; (vi) the most recent determination letter received from the IRS, if any; (vii) the most recent actuarial valuation; and (viii) all material written communications between the Purchaser or any Subsidiary or any Purchaser Benefit Plan and any Governmental Authority and relating to a Purchaser Benefit Plan within six (6) years preceding the date of this Agreement.
(iv) With respect to each Purchaser Company Benefit Plan: (i) such Purchaser Company Benefit Plan has been administered and enforced in all material respects in accordance with its terms, the Code and ERISA; (ii) neither the Purchaser nor any Subsidiary nor any employee, officer or director thereof that is a no breach of fiduciary (under ERISA) with respect to such Purchaser Benefit Plan duty has breached any of its fiduciary responsibilities, obligations or duties imposed on it by ERISAoccurred; (iii) no Action is pending pending, or to the Company’s Knowledge, threatened in writing (other than routine claims for benefits arising in the ordinary course of administration); (iv) nothing has occurred with respect to any Purchaser Benefit Plan that has subjected the Purchaser or any Subsidiary to any material penalty under no prohibited transaction, as defined in Section 502 406 of ERISA or Section 4975 of the Code, has occurred, excluding transactions effected pursuant to a statutory or administration exemption; and (v) all contributions and premiums due through the Closing Date have been made in all material respects as required under ERISA or have been fully accrued in all material respects on the Purchaser Company Financials.
(vd) No Purchaser Company Benefit Plan is, and neither the Purchaser or any Subsidiary or any of their respective ERISA Affiliates sponsors, maintains, contributes to, is required to contribute to, or otherwise has or could reasonably be expected to have any current or contingent Liability under or with respect to, a “defined benefit plan” (as defined in Section 414(j) of the Code), a “multiemployer plan” (as defined in Section 3(37) of ERISA) or a “multiple employer plan” (as described in Section 413(c) of the Code) or is otherwise subject to Title IV of ERISA or Section 412 of the Code, and no Target Company has incurred any Liability or otherwise could have any Liability, contingent or otherwise, under Title IV of ERISA and no condition presently exists that is expected to cause such Liability to be incurred. To the Purchaser’s Knowledge, no Purchaser No Company Benefit Plan will become a multiple employer plan with respect to any Purchaser Entity the Company immediately after the Closing Date. Neither the Purchaser nor any Subsidiary No Target Company currently maintains or has ever maintained, or is required currently or has ever been required to contribute to or otherwise participate in, a multiple employer welfare arrangement or voluntary employees’ beneficiary association as defined in Section 501(c)(9) of the Code. For purposes of this Agreement, “ERISA Affiliate” means, .
(e) There is no arrangement under any Company Benefit Plan with respect to any Personemployee that would result in the payment of any amount that by operation of Sections 280G or 162(m) of the Code would not be deductible by the Company and no arrangement exists pursuant to which the Company will be required to “gross up” or otherwise compensate any person because of the imposition of any excise tax on a payment to such person.
(f) The consummation of the transactions contemplated by this Agreement and the Ancillary Documents will not: (i) entitle any individual to severance pay, unemployment compensation or other benefits or compensation; (ii) accelerate the time of payment or vesting, or increase the amount of any compensation due, or in respect of, any Person individual; or entity (whether iii) result in or satisfy a condition to the payment of compensation that would, in combination with any other payment, result in an “excess parachute payment” within the meaning of Section 280G of the Code. The Company has not incorporated) that is incurred any Liability for any Tax imposed under common control Chapter 43 of the Code or treated as one employer civil liability under Section 4001(b)(1) of ERISA or Section 414(b), (c), (m502(i) or (ol) of ERISA.
(g) Except to the Codeextent required by Section 4980B of the Code or similar state Law, the Company does not provide health or welfare benefits to any former or retired employee or is obligated to provide such benefits to any active employee following such employee’s retirement or other termination of employment or service.
Appears in 1 contract
Benefit Plans. (i) Set forth on Schedule 3.19(a) Except as could not have a Material Adverse Effect, none of the Benefit Plans is a true and complete list of each material Benefit Plan of the Purchaser and its Subsidiaries (each, a “Purchaser Benefit Plan”). With respect to each Purchaser Benefit Plan, there are no funded benefit obligations for which contributions have not been materially made or properly accrued and there are no material unfunded benefit obligations plan that have not been accounted for by reserves, or otherwise properly footnoted in accordance with GAAP on the Purchaser Financials. Except as set forth on Schedule 3.19(a), neither the Purchaser nor any Subsidiary or has in the past been a member of a “controlled group” for purposes of Section 414(b), (c), (m) or (o) of the Code other than with the Purchaser or another Subsidiary, nor does the Purchaser or any Subsidiary have any Liability with respect to any collectively-bargained for plans, whether or not is subject to the provisions Title IV of ERISA.
(ii) Each Purchaser Benefit Plan in all material respects is and has been operated in compliance with all applicable Laws in all material respects, including ERISA and the Code. Each Purchaser Benefit Plan which is intended to be “qualified” within the meaning of Section 401(a) of the Code (i) has been determined by the IRS to be so qualified (or is based on a prototype plan which has received a favorable opinion letter) during the period from its adoption to the date of this Agreement and (ii) is funded through a trust exempt from taxation under Section 501(a) of the Code. To the Knowledge of the Purchaser, no fact exists which could adversely affect the qualified status of such Purchaser Benefit Plans or the exempt status of such trusts.
(iii) With respect to each Purchaser Benefit Plan, the Purchaser has made available to the Seller accurate and complete copies, if applicable, of: (i) all Purchaser Benefit Plan documents and agreements and related trust agreements or annuity Contracts (including any amendments, modifications or supplements thereto); (ii) all summary plan descriptions and material modifications thereto; (iii) the three (3) most recent Forms 5500, if applicable, and annual report, including all schedules thereto; (iv) the most recent annual and periodic accounting of plan assets; (v) the three (3) most recent nondiscrimination testing reports; (vi) the most recent determination letter received from the IRS, if any; (vii) the most recent actuarial valuation; and (viii) all material written communications between the Purchaser or any Subsidiary or any Purchaser Benefit Plan and any Governmental Authority and relating to a Purchaser Benefit Plan within six (6) years preceding the date of this Agreement.
(iv) With respect to each Purchaser Benefit Plan: (i) such Purchaser Benefit Plan has been administered and enforced in all material respects in accordance with its terms, the Code and ERISA; (ii) neither the Purchaser nor any Subsidiary nor any employee, officer or director thereof that is a fiduciary (under ERISA) with respect to such Purchaser Benefit Plan has breached any of its fiduciary responsibilities, obligations or duties imposed on it by ERISA; (iii) no Action is pending or threatened in writing (other than routine claims for benefits arising in the ordinary course of administration); (iv) nothing has occurred with respect to any Purchaser Benefit Plan that has subjected the Purchaser or any Subsidiary to any material penalty under Section 502 302 of ERISA or Section 4975 412 of the Code; and (v) all contributions and premiums due through the Closing Date have been made in all material respects as required under ERISA or have been fully accrued in all material respects on the Purchaser Financials.
(v) No Purchaser Benefit Plan is, and neither the Purchaser or any Subsidiary or any of their respective ERISA Affiliates sponsors, maintains, contributes to, is required to contribute to, or otherwise has or could reasonably be expected to have any current or contingent Liability under or with respect to, a “defined benefit plan” (as defined in Section 414(j) none of the Code), Business Benefit Plans is a “multiemployer plan” (as defined in Section 3(37) of ERISA) or , a “multiple employer planwelfare arrangement” (as described in within the meaning of Section 413(c3(40)(A) of ERISA, or a “voluntary employee benefits association” under Section 501 of the Code. Except that it could not have a Material Adverse Effect, neither Seller nor any ERISA Affiliate has within the six (6) years prior to the Closing, any liability, direct or is otherwise subject to indirect, under Title IV of ERISA or Section 412 of the Code. To the Purchaser’s Knowledge, no Purchaser Benefit Plan will become a multiple employer plan with respect to any Purchaser Entity immediately after the Closing Date. Neither the Purchaser nor any Subsidiary currently maintains or has ever maintaineda multiemployer plan, or is required currently or has ever been required to contribute to or otherwise participate in, a multiple employer welfare arrangement or voluntary employees’ beneficiary association as defined in Section 501(c)(9) employee benefits association. None of the CodeBenefit Plans provides for retiree medical or life insurance benefits to any current or former employee or other person providing services to the Business for which Buyer could reasonably be anticipated to have any Liability.
(ii) Each Business Benefit Plan is in compliance in all material respects with, and has been operated in accordance with, its terms and the requirements of all applicable Law, and Seller and the ERISA Affiliates have satisfied in all material respects all of their statutory, regulatory and contractual obligations with respect to each such Business Benefit Plan. For purposes of this AgreementNo legal action, “ERISA Affiliate” meanssuit or claim is pending or, to the Seller’s Knowledge, threatened with respect to any Person, any Person Business Benefit Plan (other than claims for benefits in the Ordinary Course of Business).
(iii) Each Business Benefit Plan or entity (whether trust which is intended to be qualified or not incorporated) that is under common control or treated as one employer exempt from taxation under Section 4001(b)(1401(a), 401(k) or 501(a) of the Code has received a favorable determination letter from the IRS that it is so qualified or exempt or is entitled to rely on an opinion letter issued to a prototype sponsor.
(iv) No Business Employee or other person will become entitled to any bonus, retirement, severance, or similar benefit (including acceleration of vesting or exercise of an incentive award) under any Business Benefit Plan as a result of the transactions contemplated by this Agreement. 6629923v2
(v) None of the Assets are “plan assets” with the meaning of ERISA or Section 414(b), (c), (m) or (o) are assets of the Codeany ERISA governed plan.
Appears in 1 contract
Sources: Asset Purchase Agreement (Par Pacific Holdings, Inc.)
Benefit Plans. (ia) Set forth on Schedule 3.19(a4.12(a) is a true and complete list of each material Benefit Plan of the Purchaser and its Subsidiaries (each, a “Purchaser Benefit Plan”). With respect to each Purchaser Benefit Plan, there are no funded benefit obligations for which contributions have not been materially made or properly accrued and there are no material unfunded benefit obligations that have not been accounted for by reserves, or otherwise properly footnoted in accordance with GAAP on the Purchaser Financials. Except as set forth on Schedule 3.19(a), neither the Purchaser is not nor any Subsidiary or has in the past been a member of a “controlled group” for purposes of Section 414(b), (c), (m) or (o) of the Code other than with the Purchaser or another SubsidiaryCode, nor does the Purchaser or any Subsidiary have any Liability with respect to any collectively-bargained for plans, whether or not subject to the provisions of ERISA. No statement, either written or oral, has been made by Purchaser to any Person with regard to any Purchaser Benefit Plan that was not in accordance with the Purchaser Benefit Plan in any material respect.
(iib) Each Purchaser Benefit Plan in all material respects is and has been operated at all times in compliance with all applicable Laws in all material respects, including ERISA and the Code. Each Purchaser Benefit Plan which is intended to be “qualified” within the meaning of Section 401(a) of the Code (i) has been determined by the IRS to be so qualified (or is based on a prototype plan which has received a favorable opinion letter) during the period from its adoption to the date of this Agreement and (ii) is funded through a its related trust has been determined to be exempt from taxation under Section 501(a) of the CodeCode or Purchaser have requested an initial favorable IRS determination of qualification and/or exemption within the period permitted by applicable Law. To the Knowledge of the Purchaser, no No fact exists which could adversely affect the qualified status of such Purchaser Benefit Plans or the exempt status of such trusts.
(iii) With respect to each Purchaser Benefit Plan, the Purchaser has made available to the Seller accurate and complete copies, if applicable, of: (i) all Purchaser Benefit Plan documents and agreements and related trust agreements or annuity Contracts (including any amendments, modifications or supplements thereto); (ii) all summary plan descriptions and material modifications thereto; (iii) the three (3) most recent Forms 5500, if applicable, and annual report, including all schedules thereto; (iv) the most recent annual and periodic accounting of plan assets; (v) the three (3) most recent nondiscrimination testing reports; (vi) the most recent determination letter received from the IRS, if any; (vii) the most recent actuarial valuation; and (viii) all material written communications between the Purchaser or any Subsidiary or any Purchaser Benefit Plan and any Governmental Authority and relating to a Purchaser Benefit Plan within six (6) years preceding the date of this Agreement.
(ivc) With respect to each Purchaser Benefit Plan: (i) such Purchaser Benefit Plan has been administered and enforced in all material respects in accordance with its terms, the Code and ERISA; (ii) neither the Purchaser nor any Subsidiary nor any employee, officer or director thereof that is a no breach of fiduciary (under ERISA) with respect to such Purchaser Benefit Plan duty has breached any of its fiduciary responsibilities, obligations or duties imposed on it by ERISAoccurred; (iii) no Action is pending pending, or to Purchaser’s Knowledge, threatened in writing (other than routine claims for benefits arising in the ordinary course of administration); (iv) nothing has occurred with respect to any Purchaser Benefit Plan that has subjected the Purchaser or any Subsidiary to any material penalty under no prohibited transaction, as defined in Section 502 406 of ERISA or Section 4975 of the Code, has occurred, excluding transactions effected pursuant to a statutory or administration exemption; and (v) all contributions and premiums due through the Closing Date have been made in all material respects as required under ERISA or have been fully accrued in all material respects on the Purchaser Financials.
(vd) No Purchaser Benefit Plan is, and neither the Purchaser or any Subsidiary or any of their respective ERISA Affiliates sponsors, maintains, contributes to, is required to contribute to, or otherwise has or could reasonably be expected to have any current or contingent Liability under or with respect to, a “defined benefit plan” (as defined in Section 414(j) of the Code), a “multiemployer plan” (as defined in Section 3(37) of ERISA) or a “multiple employer plan” (as described in Section 413(c) of the Code) or is otherwise subject to Title IV of ERISA or Section 412 of the Code, and Purchaser has not incurred any Liability or otherwise could have any Liability, contingent or otherwise, under Title IV of ERISA and no condition presently exists that is expected to cause such Liability to be incurred. To the Purchaser’s Knowledge, no No Purchaser Benefit Plan will become a multiple employer plan with respect to any the Purchaser Entity immediately after the Closing Date. Neither the Purchaser nor any Subsidiary does not currently maintains or has ever maintained, or is required currently or has ever been required to contribute to or otherwise participate in, a multiple employer welfare arrangement or voluntary employees’ beneficiary association as defined in Section 501(c)(9) of the Code. For purposes of this Agreement, “ERISA Affiliate” means, .
(e) There is no arrangement under any Purchaser Benefit Plan with respect to any Personemployee that would result in the payment of any amount that by operation of Sections 280G or 162(m) of the Code would not be deductible by the Purchaser and no arrangement exists pursuant to which the Purchaser will be required to “gross up” or otherwise compensate any person because of the imposition of any excise tax on a payment to such person.
(f) The consummation of the transactions contemplated by this Agreement and the Ancillary Documents will not: (i) entitle any individual to severance pay, unemployment compensation or other benefits or compensation; (ii) accelerate the time of payment or vesting, or increase the amount of any compensation due, or in respect of, any Person individual; or entity (whether iii) result in or satisfy a condition to the payment of compensation that would, in combination with any other payment, result in an “excess parachute payment” within the meaning of Section 280G of the Code. Purchaser has not incorporated) that is incurred any Liability for any Tax imposed under common control Chapter 43 of the Code or treated as one employer civil liability under Section 4001(b)(1) of ERISA or Section 414(b), (c), (m502(i) or (ol) of ERISA.
(g) Except to the Codeextent required by Section 4980B of the Code or similar state Law, Purchaser does not provide health or welfare benefits to any former or retired employee or is obligated to provide such benefits to any active employee following such employee’s retirement or other termination of employment or service.
Appears in 1 contract
Sources: Share Exchange Agreement (Lm Funding America, Inc.)
Benefit Plans. (ia) Set Section 4.13(a) of the Transferors Disclosure Schedules sets forth on Schedule 3.19(a) is a true correct and complete list of each material Benefit Plan (i) all “employee benefit plans” (as defined in Section 3(3) of the Purchaser and its Subsidiaries (each, a “Purchaser Benefit Plan”). With respect to each Purchaser Benefit Plan, there are no funded benefit obligations for which contributions have not been materially made or properly accrued and there are no material unfunded benefit obligations that have not been accounted for by reserves, or otherwise properly footnoted in accordance with GAAP on the Purchaser Financials. Except as set forth on Schedule 3.19(a), neither the Purchaser nor any Subsidiary or has in the past been a member of a “controlled group” for purposes of Section 414(bERISA), (c)ii) all other material employee benefit plans, policies, agreements or arrangements, (miii) all employment, individual consulting or other compensation agreements or bonus or other incentive compensation, stock purchase, equity or equity-based compensation, deferred compensation, retention, change in control, severance, pension or profit sharing plans, policies, agreements and arrangements and (oiv) of the Code all other than with the Purchaser material fringe benefit, perquisite, educational assistance, salary continuation and retirement plans, policies, agreement or another Subsidiaryarrangements, nor does the Purchaser or any Subsidiary have any Liability with respect to any collectively-bargained for plansin each case, whether or not subject to ERISA, sponsored, maintained or contributed to, or required to be contributed to, by the provisions Transferors, or any of ERISAtheir respective Subsidiaries or ERISA Affiliates, with respect to any Property Management Employee or pursuant to which any such Property Management Employee could be eligible to receive a benefit or payment or with respect to which any Transferor has or could have any direct or indirect obligation or Liability, contingent or otherwise (collectively, the “Existing Transferors Benefit Plans”).
(iib) Each Purchaser The Existing Transferors Benefit Plan in all material respects is Plans have been established, administered and has been operated in compliance with all applicable Laws maintained, in all material respects, including ERISA in accordance with their terms and with all applicable provisions of ERISA, the CodeCode and other applicable Laws. Each Purchaser Existing Transferors Benefit Plan which that is intended to be “qualified” within the meaning of tax qualified under Section 401(a) of the Code (i) has been determined by the IRS to be so qualified (received or is based on a prototype plan which has received covered by a favorable determination or opinion letter) during the period from its adoption to the date of this Agreement and (ii) is funded through a trust exempt from taxation under Section 501(a) of the Code. To the Knowledge of the Purchaser, no fact exists which could adversely affect the qualified status of such Purchaser Benefit Plans or the exempt status of such trusts.
(iii) With respect to each Purchaser Benefit Plan, the Purchaser has made available to the Seller accurate and complete copies, if applicable, of: (i) all Purchaser Benefit Plan documents and agreements and related trust agreements or annuity Contracts (including any amendments, modifications or supplements thereto); (ii) all summary plan descriptions and material modifications thereto; (iii) the three (3) most recent Forms 5500, if applicable, and annual report, including all schedules thereto; (iv) the most recent annual and periodic accounting of plan assets; (v) the three (3) most recent nondiscrimination testing reports; (vi) the most recent determination letter received from the IRS, if any; (vii) the most recent actuarial valuation; and (viii) all material written communications between the Purchaser or any Subsidiary or any Purchaser Benefit Plan and any Governmental Authority trusts intended to be exempt from federal income taxation under the Code are so exempt and relating to a Purchaser Benefit Plan within six (6) years preceding no facts or circumstances have occurred that could cause the date loss of this Agreementsuch qualification or exemption, or the imposition of any material Liability, penalty or Tax under ERISA or the Code.
(ivc) With respect to each Purchaser Neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated by the Remaining Self-Management Transactions (either alone or in combination with any other event contemplated by the applicable Existing Transferors Benefit Plan: ) will (i) such Purchaser Benefit Plan has been administered and enforced result in all material respects in accordance with its termsany payment becoming due to any Property Management Employee, the Code and ERISA; (ii) neither increase the Purchaser nor compensation or benefits payable, including equity benefits, to any Subsidiary nor any employee, officer Property Management Employee or director thereof that is a fiduciary (under ERISA) with respect to such Purchaser Benefit Plan has breached any of its fiduciary responsibilities, obligations or duties imposed on it by ERISA; (iii) no Action is pending or threatened in writing (other than routine claims for benefits arising result in the ordinary course acceleration of administration); (iv) nothing has occurred with respect the time of payment, funding or vesting of any such compensation or benefits, including equity benefits, to any Purchaser Property Management Employee but excluding benefits under any Existing Transferors Benefit Plan that has subjected the Purchaser or any Subsidiary is intended to any material penalty be tax qualified under Section 502 of ERISA or Section 4975 of the Code; and (v) all contributions and premiums due through the Closing Date have been made in all material respects as required under ERISA or have been fully accrued in all material respects on the Purchaser Financials.
(v) No Purchaser Benefit Plan is, and neither the Purchaser or any Subsidiary or any of their respective ERISA Affiliates sponsors, maintains, contributes to, is required to contribute to, or otherwise has or could reasonably be expected to have any current or contingent Liability under or with respect to, a “defined benefit plan” (as defined in Section 414(j) of the Code), a “multiemployer plan” (as defined in Section 3(37) of ERISA) or a “multiple employer plan” (as described in Section 413(c) of the Code) or is otherwise subject to Title IV of ERISA or Section 412 of the Code. To the Purchaser’s Knowledge, no Purchaser Benefit Plan will become a multiple employer plan with respect to any Purchaser Entity immediately after the Closing Date. Neither the Purchaser nor any Subsidiary currently maintains or has ever maintained, or is required currently or has ever been required to contribute to or otherwise participate in, a multiple employer welfare arrangement or voluntary employees’ beneficiary association as defined in Section 501(c)(9) of the Code. For purposes of this Agreement, “ERISA Affiliate” means, with respect to any Person, any Person or entity (whether or not incorporated) that is under common control or treated as one employer under Section 4001(b)(1) of ERISA or Section 414(b), (c), (m) or (o401(a) of the Code.
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Sources: Asset Acquisition Agreement (Inland American Real Estate Trust, Inc.)