Benefit Plans. (a) Section 3.13(a) of the Company Disclosure Letter contains a true and complete list of each material Company Plan. For purposes of this Agreement, “Company Plan” means each “employee benefit plan” (within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”)), stock purchase, stock option, severance, employment, change-in-control, fringe benefit, bonus, incentive, deferred compensation, employee loan or other employee benefit plan, agreement, program, policy or other arrangement, whether or not subject to ERISA (including any funding mechanism therefor now in effect or required in the future as a result of the transactions contemplated by this Agreement or otherwise), whether written or unwritten, in each case (i) maintained by the Company or any of its Subsidiaries for current or former directors, employees or consultants of the Company or (ii) under which (A) any employee, director or consultant or former employee, director or consultant of the Company or any of its Subsidiaries has any present or future right to benefits and (B) the Company or any of its Subsidiaries has had or has any present or future liability or obligation to contribute. With respect to each material Company Plan, the Company has furnished or made available to Parent a current, accurate and complete copy thereof, including any amendments, and, to the extent applicable: (i) any related trust agreement or other funding instrument, (ii) the most recent determination, opinion or advisory letter of the Internal Revenue Service (the “IRS”), if applicable, (iii) any summary plan description or other material written communications by the Company or its Subsidiaries to their employees concerning the extent of the benefits provided under a Company Plan and (iv) the most recent (A) Form 5500 and attached schedules, (B) audited financial statements, and (C) actuarial valuation reports. (b) Except as disclosed in Section 3.13(b) of the Company Disclosure Letter and except as, individually or in the aggregate, has not had, and would not reasonably be expected to have, a Material Adverse Effect on the Company, with respect to the Company Plans: (1) each Company Plan has been established and administered in accordance with its terms and in compliance with the applicable provisions of ERISA, the Code and all other applicable Laws, and in the six years preceding the date hereof no reportable event, as defined in Section 4043 of ERISA, no prohibited transaction, as described in Section 406 of ERISA or Section 4975 of the Code, or failure to satisfy the minimum funding standards, within the meaning of Section 302 of ERISA and 412 of the Code, has occurred with respect to any Company Plan, and all contributions required to be made under the terms of any Company Plan have been timely made; (2) each Company Plan intended to be qualified under Section 401(a) of the Code (A) has received a favorable determination, advisory and/or opinion letter, as applicable, from the IRS that it is so qualified, (B) the trust maintained thereunder has been determined to be exempt from taxation under Section 501(a) of the Code and (C) to the Company’s knowledge, nothing has occurred since the date of such letter that could reasonably be expected to cause the loss of such qualified status of such Company Plan; (3) there is no Action (including any investigation, audit or other administrative proceeding) by the Department of Labor, the Pension Benefit Guaranty Corporation, the IRS or any other Governmental Entity or by any plan participant or beneficiary pending, or to the knowledge of the Company, threatened, relating to the Company Plans, any fiduciaries thereof to which the Company could have an indemnification obligation with respect to their duties to the Company Plans or the assets of any of the trusts under any of the Company Plans (other than routine claims for benefits) nor, to the knowledge of the Company, are there facts or circumstances that exist that could reasonably be expect to give rise to any such Actions; (4) no Company Plan is or, within the preceding six years, has been subject to Title IV of ERISA or subject to Section 412 of the Code and neither the Company nor any Person that is a member of a “controlled group of corporations” with, or is under “common control” with, or is a member of the same “affiliated service group” with the Company, in each case, as defined in Sections 414(b), (c), (m) or (o) of the Code, maintains or contributes to (or has in the past six years maintained or contributed to) a multiemployer plan as defined in Section 3(37) of ERISA or a Title IV Plan; (5) the Company and its Subsidiaries are not subject to any material liability, including additional contributions, fine, penalties or loss of Tax Deductions as a result of the administration or operation of any Company Plan that is a “group health plan” (as such term is defined in Section 5000(b)(1) of the Code); (6) no Company Plan provides welfare benefits, including death or medical benefits (whether or not insured) beyond retirement or termination of service, other than coverage mandated solely by applicable Law; (7) none of the Company Plans provides for payment of an amount or provision of a benefit, the increase of a payment or benefit, the payment of a contingent amount or provision of a contingent benefit, or the acceleration of the payment, funding or vesting of an amount or benefit determined or occasioned, in whole or in part, by reason of the execution of this Agreement or the consummation of the transactions contemplated hereby whether alone or together with any other event; and (8) no amounts payable under the Company Plans will fail to be deductible for federal income tax purposes by virtue of Section 280G of the Code as a result of the occurrence of the transactions contemplated by this Agreement, either alone or in combination with another event. (c) The Company and its Subsidiaries have not entered into any employment or employment-related agreements (including change in control agreements and offer letters) to which a named individual is a party, other than those set forth on Section 3.13(a) of the Company Disclosure Letter. (d) Each Company Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A of the Code and related Treasury Department guidance has (i) been operated between January 1, 2005 and December 31, 2008, in good faith compliance with Section 409A of the Code and Notice 2005-01 and (ii) since January 1, 2009 (or such later date permitted under applicable guidance), been operated in compliance, and is in documentary compliance, in all material respects, with the requirements of Section 409A of the Code. (e) Neither the Company nor any Subsidiary has a binding commitment to create any additional material Company Plan, or any plan, agreement or arrangement that would be a material Company Plan if adopted, or to modify or terminate any existing material Company Plan, except as required by applicable Law. (f) The ESOP is an “employee stock ownership plan” within the meaning of Section 4975(e)(7) of the Code. Neither the Company nor the ESOP has, within the three year period immediately preceding the date of this Agreement, received any inquiry or notice from the IRS or any other governmental agency the effect of which is to question the qualification or status of the ESOP or any transaction entered into by the ESOP or the Company (with respect to the ESOP). The ESOP and the Company have filed all reports, returns or other documents in respect of the ESOP which are required to be filed pursuant to the applicable provisions of the Code and ERISA and the regulations thereunder. All loans entered into by the ESOP (the “ESOP Loans”) constitute “exempt loans” under Treasury Regulation Section 54.4975-7(b)(1)(iii). The securities held by the ESOP constitute “employer securities” under ERISA Section 407(d)(1) and Section 409(l) of the Code and “qualifying employer securities” under ERISA Section 407(d)(5) and Section 4975(e)(8) of the Code.
Appears in 3 contracts
Sources: Merger Agreement (Green Bancorp, Inc.), Merger Agreement (Green Bancorp, Inc.), Merger Agreement (SP Bancorp, Inc.)
Benefit Plans. (a) Set forth on Section 3.13(a7.18(a) of the Company Disclosure Letter contains a true Schedules is an accurate and complete list list, as of the date hereof, of each material Company Plan. For purposes Benefit Plan of this Agreementthe Target Companies (each, a “Company Benefit Plan” means each ”). No Target Company maintains, sponsors, contributes to, has any obligation to contribute to, or has any Liability on account of an ERISA Affiliate under or with respect to: (1) any “employee benefit multiemployer plan” as defined under Section 3(37) of ERISA, (2) any plan or arrangement subject to Code Sections 412 or 4971, ERISA Section 302 or Title IV of ERISA or similar non-U.S. Laws or (3) a plan that has two or more contributing sponsors at least two of whom are not under common control within the meaning of ERISA Section 3(34063.
(b) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”)), stock purchase, stock option, severance, employment, change-in-control, fringe benefit, bonus, incentive, deferred compensation, employee loan or other employee benefit plan, agreement, program, policy or other arrangement, whether or not subject to ERISA (including any funding mechanism therefor now in effect or required in the future as a result of the transactions contemplated by this Agreement or otherwise), whether written or unwritten, in each case (i) maintained by the Company or any of its Subsidiaries for current or former directors, employees or consultants of the Company or (ii) under which (A) any employee, director or consultant or former employee, director or consultant of the Company or any of its Subsidiaries has any present or future right to benefits and (B) the Company or any of its Subsidiaries has had or has any present or future liability or obligation to contribute. With respect to each material Company Benefit Plan, the Company has furnished or made available to Parent a current, SPAC accurate and complete copy thereof, including copies of the current plan documents and all material non-routine communications in the past three (3) years with any amendments, and, Governmental Authority concerning any matter that is still pending or for which a Target Company has any outstanding material Liability.
(c) With respect to the extent applicableeach material Company Benefit Plan: (i) any related trust agreement or other funding instrument, (ii) the most recent determination, opinion or advisory letter of the Internal Revenue Service (the “IRS”), if applicable, (iii) any summary plan description or other such material written communications by the Company or its Subsidiaries to their employees concerning the extent of the benefits provided under a Company Plan and (iv) the most recent (A) Form 5500 and attached schedules, (B) audited financial statements, and (C) actuarial valuation reports.
(b) Except as disclosed in Section 3.13(b) of the Company Disclosure Letter and except as, individually or in the aggregate, has not had, and would not reasonably be expected to have, a Material Adverse Effect on the Company, with respect to the Company Plans:
(1) each Company Benefit Plan has been established administered and administered enforced in all material respects in accordance with its terms and in compliance with the applicable provisions requirements of ERISA, the Code and all other applicable Laws, and has been maintained, where required, in good standing in all material respects with applicable regulatory authorities and Governmental Authorities, (ii) no breach of fiduciary duty that would result in material Liability to any Target Company has occurred, (iii) no Action that would result in a material Liability to the Target Companies is pending, or to the Company’s Knowledge, threatened (other than routine claims for benefits arising in the six years preceding the date hereof no reportable eventordinary course of administration); and (iv) all material contributions, as defined in Section 4043 of ERISApremiums and other payments (including any special contribution, no prohibited transaction, as described in Section 406 of ERISA interest or Section 4975 of the Code, or failure to satisfy the minimum funding standards, within the meaning of Section 302 of ERISA and 412 of the Code, has occurred with respect to any Company Plan, and all contributions penalty) required to be made under the terms of any with respect to such material Company Benefit Plan have been timely made;made or, to the extent not required to be made or paid on or before the date hereof, have been fully reflected on the books and records of the applicable Target Company. All non-U.S. Company Benefit Plans that are required by the applicable Law to be funded or book-reserved are funded or book-reserved, as appropriate, in all material respects in accordance with such applicable Law. No Target Company has incurred any material obligation in connection with the termination of, or withdrawal from, any Company Benefit Plan.
(2d) each Each Company Benefit Plan that is intended to be meet the requirements of a “qualified plan” under Code Section 401(a) of the Code (A) has received a current favorable determination, determination or opinion or advisory and/or opinion letter, as applicable, letter from the IRS that it Internal Revenue Service or is so qualifiedthe subject of a current favorable determination or opinion or advisory letter issued by the Internal Revenue Service with respect to such Company Benefit Plan, (B) and, to the trust maintained thereunder has been determined to be exempt from taxation under Section 501(a) Knowledge of the Code and (C) to the Company’s knowledge, nothing has occurred since the date of such determination, opinion or advisory letter that could would be reasonably be expected likely to cause adversely affect the loss of such qualified status of any such Company Benefit Plan;
(3) there . Each material Company Benefit Plan intended to qualify for special tax status in a jurisdiction outside of the United States is no Action (including any investigation, audit or other administrative proceeding) by the Department of Labor, the Pension Benefit Guaranty Corporation, the IRS or any other Governmental Entity or by any plan participant or beneficiary pending, or registered as such to the knowledge of the Company, threatened, relating to the Company Plans, any fiduciaries thereof to which the Company could have an indemnification obligation with respect to their duties to the Company Plans or the assets of any of the trusts under any of the Company Plans (other than routine claims for benefits) nor, to the knowledge of the Company, are there facts or circumstances that exist that could reasonably be expect to give rise to any such Actions;
(4) no Company Plan is or, within the preceding six years, extent required by applicable Law and has been subject to Title IV of ERISA or subject to Section 412 of the Code documented and neither the Company nor any Person that is a member of a “controlled group of corporations” with, or is under “common control” with, or is a member of the same “affiliated service group” with the Company, in each case, as defined in Sections 414(b), (c), (m) or (o) of the Code, maintains or contributes to (or has in the past six years maintained or contributed to) a multiemployer plan as defined in Section 3(37) of ERISA or a Title IV Plan;
(5) the Company and its Subsidiaries are not subject to any material liability, including additional contributions, fine, penalties or loss of Tax Deductions as a result of the administration or operation of any Company Plan that is a “group health plan” (as such term is defined in Section 5000(b)(1) of the Code);
(6) no Company Plan provides welfare benefits, including death or medical benefits (whether or not insured) beyond retirement or termination of service, other than coverage mandated solely by applicable Law;
(7) none of the Company Plans provides for payment of an amount or provision of a benefit, the increase of a payment or benefit, the payment of a contingent amount or provision of a contingent benefit, or the acceleration of the payment, funding or vesting of an amount or benefit determined or occasioned, in whole or in part, by reason of the execution of this Agreement or the consummation of the transactions contemplated hereby whether alone or together with any other event; and
(8) no amounts payable under the Company Plans will fail to be deductible for federal income tax purposes by virtue of Section 280G of the Code as a result of the occurrence of the transactions contemplated by this Agreement, either alone or in combination with another event.
(c) The Company and its Subsidiaries have not entered into any employment or employment-related agreements (including change in control agreements and offer letters) to which a named individual is a party, other than those set forth on Section 3.13(a) of the Company Disclosure Letter.
(d) Each Company Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A of the Code and related Treasury Department guidance has (i) been operated between January 1, 2005 and December 31, 2008, in good faith compliance with Section 409A of the Code and Notice 2005-01 and (ii) since January 1, 2009 (or such later date permitted under applicable guidance), been operated in compliance, and is in documentary compliance, in all material respects, respects in compliance with the all requirements of Section 409A of the Codesuch special tax status.
(e) Neither The consummation of the Transactions will not: (i) entitle any individual to material severance pay, unemployment compensation or other material benefits or compensation whether under a Company nor any Subsidiary has a binding commitment to create any additional material Company PlanBenefit Plan or under applicable Law or otherwise; (ii) accelerate the time of payment, vesting or funding, or increase the amount of any planmaterial compensation or benefits, agreement or arrangement that would be a material Company Plan if adopted, or to modify or terminate any existing material Company Plan, except as required by applicable Law.
(f) The ESOP is an “employee stock ownership plan” within the meaning of Section 4975(e)(7) of the Code. Neither the Company nor the ESOP has, within the three year period immediately preceding the date of this Agreement, received any inquiry or notice from the IRS or any other governmental agency the effect of which is to question the qualification or status of the ESOP or any transaction entered into by the ESOP or the Company (with respect to the ESOP). The ESOP and the Company have filed all reports, returns or other documents in respect of, any director, employee or independent contractor of the ESOP which are required a Target Company or (iii) cause an amount to be filed pursuant received by any director, employee or independent contractor of a Target Company under any Company Benefit Plan or otherwise to fail to be deductible by reason of Code Section 280G or be subject to an excise Tax under Code Section 4999. No Company Benefit Plan provides for the applicable provisions gross-up or reimbursement of the Taxes under Code and ERISA and the regulations thereunder. All loans entered into by the ESOP (the “ESOP Loans”) constitute “exempt loans” under Treasury Regulation Section 54.4975-7(b)(1)(iii). The securities held by the ESOP constitute “employer securities” under ERISA Section 407(d)(1) and Section 409(l) of the Code and “qualifying employer securities” under ERISA Section 407(d)(5) and Section 4975(e)(8) of the CodeSections 409A or 4999.
Appears in 3 contracts
Sources: Business Combination Agreement (Maywood Acquisition Corp.), Business Combination Agreement (Maywood Acquisition Corp.), Business Combination Agreement (Inflection Point Acquisition Corp. III)
Benefit Plans. (a) Section 3.13(a2.12(a) of the Company Disclosure Letter contains a true and complete list of each material Company Plan. For purposes Plan (other than (i) mandatory government or social security arrangements, (ii) any offer letter on the Company’s standard form made available to Parent providing for at-will employment that may be terminated at any time with less than 30 days’ notice without cost, penalty, payment of this Agreementseverance or any further Liability to the Company and (iii) any grant or award notice in respect of awards of Company Equity Awards in the form authorized under the applicable Company Stock Plan or the applicable form of Restricted Share Purchase Agreement that, “in each case, do not deviate in any material respect from the forms made available to Parent).
(b) The Company has provided or made available to Parent, with respect to each material Company Plan, (i) a current, accurate and complete copy of each such Company Plan, including all amendments thereto, or if such Company Plan is not in written form, a written summary of the material terms of such Company Plan, (ii) any related trust agreements, insurance contracts and other funding instruments, (iii) the most recent determination letter, opinion or similar documentation of the IRS or other applicable Tax authority, (iv) the most recent summary plan description and any material modifications thereto, (v) for the most recently completed year (A) the Annual Report (Form 5500 Series) and accompanying schedules and (B) the annual financial report, trustee report, audit report or actuarial report, (vi) any related Tax ruling, request or confirmation, and any further correspondence related thereto, with any Tax authority in the past three years related thereto and (vii) all material, non-routine correspondence received from or provided to any Governmental Entity relating to such Company Plan in the past three years.
(c) Except for those matters that would not reasonably be expected to be material to the Company:
(i) each Company Plan has been maintained, operated, registered and administered in compliance with its terms and with applicable Law, including ERISA and the Code to the extent applicable thereto;
(ii) all contributions or other amounts payable by the Company or any of its Subsidiaries with respect to each Company Plan in respect of current or prior plan years have been paid or accrued in accordance with applicable accounting principles or, with respect to each Company Plan covering Service Providers located in the United States, generally applicable accounting principles (other than with respect to amounts not yet due);
(iii) each Company Plan if intended to be “qualified” means each within the meaning of Section 401(a) of the Code, has received a favorable determination letter from the IRS or is entitled to rely upon a favorable opinion issued by the IRS, and there are no facts or circumstances likely to result in the loss of the qualification of such Company Plan under Section 401(a) of the Code;
(iv) none of the Company, its Subsidiaries or any ERISA Affiliate nor any predecessor of any such entity, trade or business, has now or any time in the previous six years contributed to, sponsored, or maintained (or has been required to contribute to, sponsor or maintain), or would reasonably be expected to have, any Liability (contingent or otherwise) with respect to a “employee benefit multiemployer plan” (within the meaning of Section 3(34001(a) of ERISA) or a plan that has two or more contributing sponsors at least two of whom are not under common control within the Employee Retirement Income Security Act meaning of 1974Section 4063 of ERISA;
(v) none of the Company, as amended any of its Subsidiaries or any ERISA Affiliate has now or at any time in the previous six years contributed to, sponsored or maintained (“ERISA”))or has been required to contribute to, stock purchase, stock option, severance, employment, change-in-control, fringe benefit, bonus, incentive, deferred compensation, employee loan sponsor or other employee benefit plan, agreement, program, policy or other arrangement, whether or not maintain) a plan that is subject to Section 302 of Title IV of ERISA (including any funding mechanism therefor now in effect or required in the future as a result Section 412 or 4971 of the transactions contemplated by this Agreement Code;
(vi) no liability under Title IV of ERISA has been incurred, or otherwise), whether written or unwritten, in each case (i) maintained is reasonably expected to be incurred by the Company or any of its Subsidiaries for current (including indirectly with respect to an ERISA Affiliate), in each case, that has not been satisfied in full, and no condition, event or former directorscircumstance exists that presents a risk to the Company, employees or consultants any of its Subsidiaries or, to the knowledge of the Company or (ii) under which (A) Company, any employee, director or consultant or former employee, director or consultant ERISA Affiliate of the Company or any of its Subsidiaries has any present or future right to benefits and of incurring a liability thereunder;
(Bvii) none of the Company or Company, any of its Subsidiaries has had or has any present Company Plan that is subject to ERISA, any trust created thereunder or future liability any trustee or obligation to contribute. With respect to each material Company Plan, the Company has furnished or made available to Parent a current, accurate and complete copy administrator thereof, including any amendments, and, to the extent applicable: (i) any related trust agreement or other funding instrument, (ii) the most recent determination, opinion or advisory letter of the Internal Revenue Service (the has engaged in a nonexempt “IRS”), if applicable, (iii) any summary plan description or other material written communications by the Company or its Subsidiaries to their employees concerning the extent of the benefits provided under a Company Plan and (iv) the most recent (A) Form 5500 and attached schedules, (B) audited financial statements, and (C) actuarial valuation reports.
(b) Except as disclosed in Section 3.13(b) of the Company Disclosure Letter and except as, individually or in the aggregate, has not had, and would not reasonably be expected to have, a Material Adverse Effect on the Company, with respect to the Company Plans:
(1) each Company Plan has been established and administered in accordance with its terms and in compliance with the applicable provisions of ERISA, the Code and all other applicable Laws, and in the six years preceding the date hereof no reportable event, as defined in Section 4043 of ERISA, no prohibited transaction, ” (as described such term is defined in Section 406 of ERISA or and Section 4975 of the Code, or failure to satisfy the minimum funding standards, within the meaning of Section 302 of ERISA and 412 of the Code, has occurred with respect to any Company Plan, and all contributions required to be made under the terms of any Company Plan have been timely made);
(2) each Company Plan intended to be qualified under Section 401(a) of the Code (A) has received a favorable determination, advisory and/or opinion letter, as applicable, from the IRS that it is so qualified, (B) the trust maintained thereunder has been determined to be exempt from taxation under Section 501(a) of the Code and (C) to the Company’s knowledge, nothing has occurred since the date of such letter that could reasonably be expected to cause the loss of such qualified status of such Company Plan;
(3viii) there is are no Action (including any investigation, audit or other administrative proceeding) by the Department of Labor, the Pension Benefit Guaranty Corporation, the IRS or any other Governmental Entity or by any plan participant or beneficiary pending, or to the knowledge of the Company, threatenedthreatened Actions (including any audit or other administrative proceeding) by, relating to the Company Plans, any fiduciaries thereof to which the Company could have an indemnification obligation with respect to their duties to the Company Plans on behalf of or the assets of any of the trusts under against any of the Company Plans or any trusts related thereto, or against any fiduciary of any Company Plan (other than routine claims for benefits) nor, to benefits in accordance with the knowledge terms of the Company, Company Plans) nor are there any facts or circumstances that exist that could reasonably be expect to give rise to any such Actions;
(4ix) except as set forth on Section 2.12(c)(ix) of the Company Disclosure Letter, no Company Plan is ormaintained through a human resources and benefits outsourcing entity, within the preceding six yearsprofessional employer organization or other similar vendor or provider, has been subject except to Title IV of ERISA provide third-party administrative or subject recordkeeping services to Section 412 of the Code and neither a Company Plan sponsored by the Company nor or any Person that is a member of a “controlled group of corporations” with, or is under “common control” with, or is a member of the same “affiliated service group” with the Company, in each case, as defined in Sections 414(b), (c), (m) or (o) of the Code, maintains or contributes to (or has in the past six years maintained or contributed to) a multiemployer plan as defined in Section 3(37) of ERISA or a Title IV Planits Subsidiaries;
(5) the Company and its Subsidiaries are not subject to any material liability, including additional contributions, fine, penalties or loss of Tax Deductions as a result of the administration or operation of any Company Plan that is a “group health plan” (as such term is defined in Section 5000(b)(1) of the Code);
(6x) no Company Plan provides medical, life insurance or other welfare benefits, including death or medical benefits (whether or not insured) with respect to Participants beyond their retirement or other termination of service, other than coverage mandated solely by applicable Law;; and
(7xi) none with respect to each Company Plan that is not subject exclusively to United States Law (a “Non-U.S. Benefit Plan”): (i) all employer and employee contributions to each Non-U.S. Benefit Plan required by applicable Law or by the terms of such Non-U.S. Benefit Plan or pursuant to any other contractual obligation (including contributions to all mandatory provident fund schemes) have been timely made in accordance with applicable Law; (ii) from and after the Acceptance Time, such funds, accruals or reserves under the Non-U.S. Benefit Plans shall be used exclusively to satisfy benefit obligations accrued under such Non-U.S. Benefit Plans or else shall remain or revert to Parent and its Affiliates in accordance with the terms of such Non-U.S. Benefit Plan or applicable Law; (iii) each Non-U.S. Benefit Plan required to be registered has been registered and has been maintained in good standing with applicable regulatory authorities; and (iv) no Non-U.S. Benefit Plan is subject to any funding deficit.
(d) Except as set forth on Section 2.12(d) of the Company Plans provides for payment of an amount or provision of a benefitDisclosure Letter, the increase of a payment or benefit, the payment of a contingent amount or provision of a contingent benefit, or the acceleration of the payment, funding or vesting of an amount or benefit determined or occasioned, in whole or in part, by reason of the execution and delivery of this Agreement or the consummation of the transactions contemplated hereby whether will not, either alone or together in combination with any other event; and
, (8) no amounts payable under A) entitle any Participant to severance, change in control or other pay or benefits, (B) cause any payments or funding (through a grantor trust or otherwise) to become due or accelerate the Company Plans will fail time of payment or vesting, or increase the amount of or otherwise enhance any compensation or benefit due to be deductible for federal income tax purposes by virtue any Participant, (C) result in any forgiveness of indebtedness of any Participant or (D) result in the payment of any “excess parachute payment” within the meaning of Section 280G of the Code as a result of the occurrence of the transactions contemplated by this Agreement, either alone or in combination with another eventto any Person.
(c) The Company and its Subsidiaries have not entered into any employment or employment-related agreements (including change in control agreements and offer letters) to which a named individual is a party, other than those set forth on Section 3.13(a) of the Company Disclosure Letter.
(de) Each Company Plan that is constitutes in any part a “nonqualified deferred compensation plan” within the meaning of Section 409A(d)(1) of the Code subject to Section 409A of the Code and related Treasury Department guidance has (i) been operated between January 1, 2005 and December 31, 2008, maintained in good faith compliance in all material respects with Section 409A of the Code and Notice 2005the regulations and other administrative guidance promulgated thereunder. No Participant under any Company Plan is entitled to any gross-01 and up, make-whole or other additional payment from the Company or any of its Subsidiaries in respect of any Tax (ii) since January 1including Federal, 2009 state, local or foreign income, excise or other Taxes (including Taxes incurred pursuant to Sections 409A or such later date permitted under applicable guidance), been operated in compliance, and is in documentary compliance, in all material respects, with the requirements of Section 409A 4999 of the Code)) or interest or penalty related thereto.
(e) Neither the Company nor any Subsidiary has a binding commitment to create any additional material Company Plan, or any plan, agreement or arrangement that would be a material Company Plan if adopted, or to modify or terminate any existing material Company Plan, except as required by applicable Law.
(f) The ESOP is an “employee stock ownership plan” within the meaning of Section 4975(e)(7) of the Code. Neither the Company nor the ESOP has, within the three year period immediately preceding the date of this Agreement, received any inquiry or notice from the IRS or any other governmental agency the effect of which is to question the qualification or status of the ESOP or any transaction entered into by the ESOP or the Company (with respect to the ESOP). The ESOP and the Company have filed all reports, returns or other documents in respect of the ESOP which are required to be filed pursuant to the applicable provisions of the Code and ERISA and the regulations thereunder. All loans entered into by the ESOP (the “ESOP Loans”) constitute “exempt loans” under Treasury Regulation Section 54.4975-7(b)(1)(iii). The securities held by the ESOP constitute “employer securities” under ERISA Section 407(d)(1) and Section 409(l) of the Code and “qualifying employer securities” under ERISA Section 407(d)(5) and Section 4975(e)(8) of the Code.
Appears in 3 contracts
Sources: Transaction Agreement (VectivBio Holding AG), Transaction Agreement (Ironwood Pharmaceuticals Inc), Transaction Agreement (Ironwood Pharmaceuticals Inc)
Benefit Plans. (a) Section 3.13(a) of the Company Disclosure Letter contains a true and complete list of each material Company Plan. For purposes of this Agreement, “Company Plan” means each “employee benefit plan” (within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”)), stock purchase, stock option, severance, employment, change-in-control, fringe benefit, bonus, incentive, deferred compensation, employee loan or other employee benefit plan, agreement, program, policy or other arrangement, whether or not subject to ERISA (including any funding mechanism therefor now in effect or required in the future as a result of the transactions contemplated by this Agreement or otherwise), whether written or unwritten, in each case (i) maintained by the Company or any of its Subsidiaries for current or former directors, employees or consultants of the Company or (ii) under which (A) any employee, director or consultant or former employee, director or consultant of the Company or any of its Subsidiaries has any present or future right to benefits and (B) the Company or any of its Subsidiaries has had or has any present or future liability or obligation to contribute. With respect to each material Company Diamond Benefit Plan, the Company Diamond has furnished or made available available, upon request, to Parent a current, Orion complete and accurate and complete copy thereof, including any amendments, copies of (A) such Diamond Benefit Plan and, to the extent applicable: , summary plan description thereof, (iB) any related trust agreement each trust, insurance, annuity or other funding instrumentcontract related thereto, (iiC) the most recent determination, opinion audited financial statements and actuarial or advisory letter of the Internal Revenue Service (the “IRS”), if applicableother valuation reports prepared with respect thereto, (iii) any summary plan description or other material written communications by the Company or its Subsidiaries to their employees concerning the extent of the benefits provided under a Company Plan and (ivD) the most recent (A) annual report on Form 5500 and attached schedules, (B) audited financial statements, required to be filed with the IRS with respect thereto and (CE) actuarial valuation reportsthe most recently received IRS determination letter or opinion, if applicable.
(bii) Except as disclosed in Section 3.13(b) of the Company Disclosure Letter and except as, individually or in the aggregate, has not had, and would not reasonably be expected to have, have a Material Adverse Effect on the CompanyDiamond, with respect to the Company Plans:
(1A) each Company Plan of the Diamond Benefit Plans has been established operated and administered in accordance compliance with its terms and in compliance accordance with the applicable provisions of Applicable Laws, including ERISA, the Code and all other applicable Laws, and in each case the six years preceding the date hereof no reportable event, as defined in Section 4043 of ERISA, no prohibited transaction, as described in Section 406 of ERISA or Section 4975 of the Code, or failure to satisfy the minimum funding standards, within the meaning of Section 302 of ERISA and 412 of the Code, has occurred with respect to any Company Plan, and all contributions required to be made under the terms of any Company Plan have been timely made;
(2) each Company Plan intended to be qualified under Section 401(a) of the Code (A) has received a favorable determination, advisory and/or opinion letter, as applicable, from the IRS that it is so qualified, regulations thereunder; (B) the trust maintained thereunder has been determined to be exempt from taxation under Section 501(a) of the Code and (C) to the Company’s knowledge, nothing has occurred since the date of such letter that could reasonably be expected to cause the loss of such qualified status of such Company Plan;
(3) there is no Action (including any investigation, audit or other administrative proceeding) by the Department of Labor, the Pension Diamond Benefit Guaranty Corporation, the IRS or any other Governmental Entity or by any plan participant or beneficiary pending, or to the knowledge of the Company, threatened, relating to the Company Plans, any fiduciaries thereof to which the Company could have an indemnification obligation with respect to their duties to the Company Plans or the assets of any of the trusts under any of the Company Plans (other than routine claims for benefits) nor, to the knowledge of the Company, are there facts or circumstances that exist that could reasonably be expect to give rise to any such Actions;
(4) no Company Plan is or, within the preceding six years, has been subject to Title IV of ERISA or subject to Section 412 of the Code and neither the Company nor any Person that is a member of a “controlled group of corporations” with, or is under “common control” with, or is a member of the same “affiliated service group” with the Company, in each case, as defined in Sections 414(b), (c), (m) or (o) of the Code, maintains or contributes to (or has in the past six years maintained or contributed to) a multiemployer plan as defined in Section 3(37) of ERISA or a Title IV Plan;
(5) the Company and its Subsidiaries are not subject to any material liability, including additional contributions, fine, penalties or loss of Tax Deductions as a result of the administration or operation of any Company Plan that is a “group health plan” (as such term is defined in Section 5000(b)(1) of the Code);
(6) no Company Plan provides welfare benefits, including death or medical benefits (whether or not insured) ), with respect to current or former employees or directors of Diamond or its subsidiaries beyond their retirement or other termination of service, other than coverage mandated solely by applicable Law;COBRA, or comparable U.S. state or foreign law; (C) all contributions or other amounts payable by Diamond or its subsidiaries as of the Effective Time pursuant to each Diamond Benefit Plan in respect of current or prior plan years have been timely paid or, to the extent not yet due, have been accrued in accordance with GAAP; (D) neither Diamond nor any of its subsidiaries has engaged in a transaction in connection with which Diamond or its subsidiaries could be subject to either a civil penalty assessed pursuant to Section 409 or 502(i) of ERISA or a tax imposed pursuant to Section 4975 or 4976 of the Code; and (E) there are no pending, or to the knowledge of Diamond, threatened in writing or anticipated claims, actions, investigations or audits (other than routine claims for benefits) by, on behalf of or against any of the Diamond Benefit Plans or any trusts related thereto.
(7iii) Except as set forth on Section 4.2(j)(iii) of the Diamond Disclosure Letter or as, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect on Diamond, none of Diamond, any of its subsidiaries or any of their respective ERISA Affiliates contributes to or is obligated to contribute to, or within the six years preceding the date of this Agreement contributed to, or was obligated to contribute to, a Multiemployer Plan or Multiple Employer Plan, and none of Diamond, any of its subsidiaries or any of their respective ERISA Affiliates has, within the preceding six years, withdrawn in a complete or partial withdrawal from any Multiemployer Plan or incurred any liability under Section 4202 of ERISA.
(iv) Except as, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect on Diamond, each of the Diamond Benefit Plans intended to be “qualified” within the meaning of Section 401(a) of the Code, (A) is so qualified and there are no existing circumstances or any events that have occurred that would reasonably be expected to adversely affect the qualified status of any such plan and (B) has received a favorable determination letter or opinion letter as to its qualification.
(v) Section 4.2(j)(v) of the Diamond Disclosure Letter sets forth each Diamond Benefit Plan that is subject to Section 302 or Title IV or Section 412, 430 or 4971 of the Code (each, a “Diamond Title IV Plan”). With respect to each Diamond Title IV Plan, except for matters that, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect on Diamond, (A) there does not exist any accumulated funding deficiency within the meaning of Section 412 of the Code or Section 302 of ERISA, whether or not waived, (B) no such Diamond Title IV Plan is currently in “at risk” status within the meaning of Section 430 of the Code or Section 303(i) of ERISA, (C) no reportable event within the meaning of Section 4043(c) of ERISA for which the 30-day notice requirement has not been waived has occurred, (D) none of Diamond, any of its subsidiaries or any of their respective ERISA Affiliates has engaged in any transaction described in Section 4069, 4204(a) or 4212(c) of ERISA, (E) all premiums to the Company Plans provides PBGC have been timely paid in full, (F) no liability (other than for payment premiums to the PBGC) has been or, to the knowledge of an amount Diamond, is expected to be incurred by Diamond or provision any of its subsidiaries and (G) the PBGC has not instituted proceedings to terminate any such Diamond Title IV Plan. Except for matters that, individually or in the aggregate, would not reasonably be expected to have a benefitMaterial Adverse Effect on Diamond, there does not now exist, nor do any circumstances exist that could result in, any Controlled Group Liability that would be a liability following the increase Closing of a payment Diamond, any of its subsidiaries or benefitany of their respective ERISA Affiliates. Since July 1, the payment of a contingent amount 2014, there has not been any material change in any actuarial or provision of a contingent benefitother assumption used to calculate funding obligations with respect to any Diamond Title IV Plan, or any material change in the acceleration of manner in which contributions to any Diamond Title IV Plan are made or the payment, funding or vesting of an amount or benefit determined or occasioned, in whole or in part, by reason of basis on which such contributions are determined.
(vi) Neither the execution and delivery of this Agreement or nor the consummation of the transactions contemplated hereby whether (either alone or together in conjunction with any other event; and
) will (8) no amounts payable under A) result in any payment (including severance, unemployment compensation, “excess parachute payment” (within the Company Plans will fail to be deductible for federal income tax purposes by virtue meaning of Section 280G of the Code Code), forgiveness of indebtedness or otherwise) becoming due to any current or former director or any employee of Diamond or its subsidiaries under any Diamond Benefit Plan or otherwise, (B) increase any benefits otherwise payable under any Diamond Benefit Plan or (C) result in any acceleration of the time of payment, funding or vesting of any such benefits.
(vii) No person is entitled to receive any additional payment (including any Tax gross-up or other payment) from Diamond or any of its subsidiaries as a result of the occurrence imposition of the transactions contemplated excise Taxes required by this Agreement, either alone or in combination with another event.
(c) The Company and its Subsidiaries have not entered into any employment or employment-related agreements (including change in control agreements and offer letters) to which a named individual is a party, other than those set forth on Section 3.13(a) of the Company Disclosure Letter.
(d) Each Company Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A 4999 of the Code and related Treasury Department guidance has (i) been operated between January 1, 2005 and December 31, 2008, in good faith compliance with Section 409A of the Code and Notice 2005-01 and (ii) since January 1, 2009 (or such later date permitted under applicable guidance), been operated in compliance, and is in documentary compliance, in all material respects, with the requirements of any Taxes required by Section 409A of the Code.
(eviii) Neither Except as, individually or in the Company nor aggregate, would not reasonably be expected to have a Material Adverse Effect on Diamond, all Diamond Benefit Plans subject to the laws of any Subsidiary has a binding commitment to create any additional material Company Plan, or any plan, agreement or arrangement that would be a material Company Plan if adopted, or to modify or terminate any existing material Company Plan, except as required by applicable Law.
(f) The ESOP is an “employee stock ownership plan” within the meaning of Section 4975(e)(7) jurisdiction outside of the Code. Neither the Company nor the ESOP hasUnited States (A) have been maintained in accordance with all applicable requirements, within the three year period immediately preceding the date of this Agreement(B) that are intended to qualify for special tax treatment meet all requirements for such treatment, received any inquiry or notice from the IRS or any other governmental agency the effect of which is to question the qualification or status of the ESOP or any transaction entered into by the ESOP or the Company and (with respect to the ESOP). The ESOP and the Company have filed all reports, returns or other documents in respect of the ESOP which C) that are required intended to be filed pursuant to the applicable provisions of the Code and ERISA and the regulations thereunder. All loans entered into by the ESOP (the “ESOP Loans”) constitute “exempt loans” under Treasury Regulation Section 54.4975funded and/or book-7(b)(1)(iii). The securities held by the ESOP constitute “employer securities” under ERISA Section 407(d)(1) and Section 409(l) of the Code and “qualifying employer securities” under ERISA Section 407(d)(5) and Section 4975(e)(8) of the Codereserved are fully funded and/or book reserved, as appropriate, based upon reasonable actuarial assumptions.
Appears in 3 contracts
Sources: Merger Agreement (Dupont E I De Nemours & Co), Merger Agreement (Dow Chemical Co /De/), Merger Agreement
Benefit Plans. (a) Section 3.13(a) of the The Company Disclosure Letter contains has furnished or made available to Parent a true and complete list of each material Company Plan. For purposes of this Agreement, “Company Plan” means each written “employee benefit plan” (within the meaning of Section section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”)), including all stock purchase, stock option, phantom stock or other equity-based plan, severance, employment, change-in-control, fringe benefit, bonus, incentive, deferred compensation, employee loan or compensation and all other employee benefit planand compensation plans, agreementagreements, programprograms, policy policies or other arrangementarrangements, whether or not subject to ERISA (including any funding mechanism therefor now in effect or required in the future as a result of the transactions contemplated by this Agreement or otherwiseeffect), whether written formal or unwritteninformal, in each case (i) maintained by the Company legally binding or any of its Subsidiaries for current or former directorsnot, employees or consultants of the Company or (ii) under which (A) any employee, director or consultant current or former employee, director or individual consultant of the Company or its Subsidiaries (or any of its Subsidiaries their dependents) has any present or future right to compensation or benefits and (B) or the Company or any of its Subsidiaries has had or has any present or future liability other than “multiemployer plans” (within the meaning of ERISA section 3(37)) (“Multiemployer Plans”) and any plans or obligation programs that are mandated and administered by a Governmental Entity. All such plans, agreements, programs, policies and arrangements shall be collectively referred to contribute. as the “Company Plans.” In addition, the Company has furnished or made available to Parent a true and complete list of each Multiemployer Plan.
(b) With respect to each material Company Plan, the Company has furnished or made available to Parent a current, accurate and complete copy thereof, including any amendments, thereof and, to the extent applicable: (i) any related trust agreement or other funding instrument, (ii) the most recent determination, opinion or advisory determination letter of the Internal Revenue Service (the “IRS”), if applicable, (iii) any summary plan description or and other material written communications (or a description of any oral communications) by the Company or its Subsidiaries to their employees concerning the extent of the benefits provided under a Company Plan and (iv) the most recent (A) Form 5500 and attached schedules, (B) audited financial statements, and (C) actuarial valuation reports.
(bc) Except as disclosed in Section 3.13(b) of With respect to the Company Disclosure Letter and Plans:
(i) except as, individually or in the aggregate, has not had, and would not reasonably be expected to have, a Material Adverse Effect on the Company, with respect to the Company Plans:
(1) each Company 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 all other applicable LawsCode, and in the six years preceding the date hereof no reportable event, as defined in Section 4043 of ERISA, no prohibited transaction, as described in Section 406 of ERISA or Section 4975 of the Code, or failure to satisfy the minimum accumulated funding standardsdeficiency, within the meaning of as defined in Section 302 of ERISA and 412 of the Code, has occurred with respect to any Company Plan, and all contributions required to be made under the terms of any Company Plan have been timely made;
(2ii) each Company Plan intended to be qualified under Section 401(a) of the Code (A) has received a favorable determination, advisory and/or opinion letter, as applicable, from the IRS that it is so qualifiedqualified and, (B) to the trust maintained thereunder has been determined to be exempt from taxation under Section 501(a) Knowledge of the Code and (C) to the Company’s knowledge, nothing has occurred since the date of such letter that could would reasonably be expected to cause the loss of such qualified status of such Company Plan;
(3iii) the aggregate accumulated benefit obligations of the Company Plans subject to Title IV of ERISA (as of the date of the most recent actuarial valuation prepared for such Company Plans and based on the discount rate and other actuarial assumptions used in such valuation) do not exceed the fair market value of the assets of such Company Plans in the aggregate (as of the date of such valuation);
(iv) except as, individually or in the aggregate, has not had, and would not reasonably be expected to have a Material Adverse Effect on the Company, there is no Action (including any investigation, audit or other administrative proceeding) by the Department of Labor, the Pension Benefit Guaranty CorporationCorporation (the “PBGC”), the IRS or any other Governmental Entity or by any plan participant or beneficiary pending, or to the knowledge Knowledge of the Company, threatened, relating to the Company Plans, any fiduciaries thereof to which who the Company could have has an indemnification obligation to indemnify with respect to their duties to the Company Plans or the assets of any of the trusts under any of the Company Plans (other than routine claims for benefits) ), nor, to the knowledge Knowledge of the Company, are there facts or circumstances that exist that could reasonably be expect to give rise to any such Actions;
(4v) no Company with respect to any Multiemployer Plan is orto which the Company, within the preceding six years, has been subject to Title IV its Subsidiaries or any member of ERISA or subject to Section 412 of the Code and neither the Company nor their Controlled Group (defined as any Person that organization which is a member of a “controlled group of corporations” with, or is under “common control” with, or is a member organizations within the meaning of the same “affiliated service group” with the Company, in each case, as defined in Code Sections 414(b), (c), (m) or (o)) has any liability or has contributed (or had at any time contributed or had an obligation to contribute) in the six (6) years prior to the date hereof: (A) none of the CodeCompany, maintains its Subsidiaries or contributes to (or any member of their Controlled Group has incurred any withdrawal liability in the past six (6) years maintained under Title IV of ERISA that remains unsatisfied or contributed to) would be subject to any withdrawal liability if, as of the Effective Time, the Company, its Subsidiaries or any member of their Controlled Group were to engage in a multiemployer plan complete withdrawal (as defined in Section 3(37ERISA section 4203) of or partial withdrawal (as defined in ERISA section 4205) from any such Multiemployer Plan and (B) no such Multiemployer Plan is in reorganization or insolvent (as those terms are defined in ERISA sections 4241 and 4245, respectively), except, in each case, as, individually or in the aggregate, has not had, and would not reasonably be expected to have, a Title IV PlanMaterial Adverse Effect on the Company;
(5vi) except as, individually or in the aggregate, has not had, and would not reasonably be expected to have, a Material Adverse Effect on the Company, with respect to each Company Plan that is subject to Title IV of ERISA, the Company and its Subsidiaries are has not subject incurred, nor, to any material liability, including additional contributions, fine, penalties or loss of Tax Deductions as a result the Knowledge of the administration Company, does it reasonably expect to incur, any liability to the Company Plan or operation of any to the PBGC in connection with such Company Plan (other than for premiums to the PBGC); and
(vii) each Company Plan that is a “group health plan” (as such term is defined in Section 5000(b)(1) of the Code);
(6) no Company Plan provides welfare benefitshas been administered and operated in all respects in compliance with the applicable requirements of Section 601 of ERISA and Section 4980B(b) of the Code, including death or medical benefits (whether or not insured) beyond retirement or termination of service, other than coverage mandated solely by applicable Law;
(7) none and to the Knowledge of the Company Plans provides for payment the Company and its Subsidiaries are not subject to any fines, penalties or loss of an amount Tax deduction as a result of any operational failures, except, in each case, as, individually or provision of in the aggregate, has not had, and would not reasonably be expected to have, a benefit, Material Adverse Effect on the increase of a payment or benefit, the payment of a contingent amount or provision of a contingent benefit, or the acceleration Company.
(d) Except as set forth in Section 3.12(d) of the paymentCompany Disclosure Letter, funding or vesting of an amount or benefit determined or occasioned, in whole or in part, by reason of the execution of this Agreement or and the consummation of the transactions contemplated hereby whether alone or together with any other event; and
(8) no amounts payable under the Company Plans will fail to be deductible for federal income tax purposes by virtue of Section 280G of the Code as a result of the occurrence of the transactions contemplated by this Agreementnot, either alone or in combination with another event.
, (ci) The entitle any Company and Participant to severance pay under the terms of a Company Plan, (ii) accelerate the time of payment, vesting or funding, or increase the amount of compensation due to any Company Participant or (iii) cause or result in a limitation on the right of the Company or any of its Subsidiaries have not entered into to amend, merge, terminate or receive a reversion of assets from any employment Company Plan or employment-related agreements (including change in control agreements and offer letters) to which a named individual is a party, other than those set forth on trust. Section 3.13(a3.12(d) of the Company Disclosure LetterLetter separately identifies any equity-based incentive awards the vesting of which will be accelerated solely as a result of the consummation of the transactions contemplated by this Agreement. No amount paid or payable by the Company or any of its Subsidiaries or Parent or any of its Affiliates in connection with the transactions contemplated by this Agreement, whether alone or in combination with another event, will be an “excess parachute payment” within the meaning of Section 280G or Section 4999 of the Code or will not be deductible by the Company by reason of Section 280G of the Code.
(de) Each Company Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A(d)(1) of the Code (a “Nonqualified Deferred Compensation Plan”) subject to Section 409A of the Code and related Treasury Department guidance has (i) been operated between January 1, 2005 and December 31, 2008, in good faith compliance in all material respects with Section 409A of the Code and Notice since January 1, 2005-01 , based upon a good faith, reasonable interpretation of (i) Section 409A of the Code and (ii) since January 1IRS Notice 2005-1 or any other applicable IRS guidance, 2009 in each case as modified by IRS Notice 2007-86 (or such later date permitted under applicable guidanceclauses (i) and (ii), been operated together, the “409A Authorities”). No Company Participant is entitled to any gross-up, make-whole or other additional payment from the Company or any of its Subsidiaries under any Company Plan in compliancerespect of any Tax (including federal, and is in documentary compliancestate, in all material respectslocal or foreign income, with the requirements of excise or other Taxes (including Taxes imposed under Section 409A of the Code and/or Section 4999 of the Code.
(e)) Neither the Company nor any Subsidiary has a binding commitment to create any additional material Company Plan, or any plan, agreement interest or arrangement that would be a material Company Plan if adopted, or to modify or terminate any existing material Company Plan, except as required by applicable Lawpenalty related thereto.
(f) The ESOP is an “employee stock ownership plan” within the meaning of Section 4975(e)(7) of the Code. Neither the Company nor the ESOP has, within the three year period immediately preceding the date For purposes of this Agreement, received any inquiry “Company Participant” shall mean current or notice from former director, officer, employee, individual contractor or individual consultant of the IRS Company or any other governmental agency the effect of which is to question the qualification or status of the ESOP or any transaction entered into by the ESOP or the Company (with respect to the ESOP). The ESOP and the Company have filed all reports, returns or other documents in respect of the ESOP which are required to be filed pursuant to the applicable provisions of the Code and ERISA and the regulations thereunder. All loans entered into by the ESOP (the “ESOP Loans”) constitute “exempt loans” under Treasury Regulation Section 54.4975-7(b)(1)(iii). The securities held by the ESOP constitute “employer securities” under ERISA Section 407(d)(1) and Section 409(l) of the Code and “qualifying employer securities” under ERISA Section 407(d)(5) and Section 4975(e)(8) of the Codeits Subsidiaries.
Appears in 2 contracts
Sources: Merger Agreement (Aecom Technology Corp), Agreement and Plan of Merger (Urs Corp /New/)
Benefit Plans. (a) Section 3.13(a3.12(a) of the Company Disclosure Letter contains a true and complete list of each material Company Plan. For purposes of this Agreement, “Company Plan” means each any “employee benefit plan” (within the meaning of Section section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), whether or not subject to ERISA), “multiemployer plans” (within the meaning of ERISA section 3(37)), and all stock purchase, stock option, phantom stock or other equity-based plan, severance, employment, collective bargaining, change-in-control, fringe benefit, bonus, incentive, deferred compensation, employee loan supplemental retirement, health, life, or disability insurance, dependent care and all other employee benefit planand compensation plans, agreementagreements, programprograms, policy policies or other arrangementarrangements, whether or not subject to ERISA (including any funding mechanism therefor now in effect or required in the future as a result of the transactions contemplated by this Agreement or otherwise)ERISA, whether formal or informal, written or unwrittenoral, in each case (i) maintained by the Company legally binding or any of its Subsidiaries for current or former directorsnot, employees or consultants of the Company or (ii) under which (A) any employee, director or consultant current or former employee, director or consultant of the Company or its Subsidiaries (or any of its Subsidiaries their dependents) has any present or future right to compensation or benefits and (B) or the Company or any of its Subsidiaries has had sponsors or maintains, is making contributions to or has any present or future liability or obligation (contingent or otherwise) or with respect to contributewhich it is otherwise bound. The Company has delivered or made available to Parent a current, accurate and complete copy of each material Company Plan, or if such Company Plan is not in written form, a written summary of all of the material terms of such Company Plan. With respect to each material Company Plan, the Company has furnished delivered or made available to Parent a current, accurate and complete copy thereof, including any amendments, andof, to the extent applicable: (i) any related trust agreement or other funding instrument, (ii) the most recent determination, opinion or advisory determination letter of the Internal Revenue Service (the “IRS”), if applicable, (iii) any summary plan description or description, summary of material modifications, and other similar material written communications by (or a written description of any material oral communications) to the employees of the Company or its Subsidiaries to their employees concerning the extent of the benefits provided under a Company Plan Plan, and (iv) for the three most recent years (A) the Form 5500 and attached schedules, (B) audited financial statements, and (C) actuarial valuation reportsreports and (D) attorney’s response to an auditor’s request for information.
(b) Except as disclosed in Section 3.13(b) of the Company Disclosure Letter and except as, individually or in the aggregate, has not had, and would not reasonably be expected to have, a Material Adverse Effect on Neither the Company, its Subsidiaries or any member of their Controlled Group (defined as any organization which is a member of a controlled, affiliated or otherwise related group of entities within the meaning of Code Sections 414(b), (c), (m) or (o)) has ever sponsored, maintained, contributed to or been required to contribute to or incurred any liability (contingent or otherwise) with respect to: (i) a “multiemployer plan” (within the meaning of ERISA section 3(37)), (ii) an “employee pension benefit plan,” within the meaning of Section 3(2) of ERISA (“Pension Plan”) that is subject to Title IV of ERISA or Section 412 of the Code, (iii) a Pension Plan which is a “multiple employer plan” as defined in Section 413 of the Code, or (iv) a “funded welfare plan” within the meaning of Section 419 of the Code.
(c) With respect to the Company Plans:
(1i) each Company Plan has been established and administered in accordance complies with its terms in all material respects and complies in form and in compliance operation, in all material respects, with the applicable provisions of ERISA, ERISA and the Code and all other applicable Laws, and in the six years preceding the date hereof no reportable event, as defined in Section 4043 of ERISA, no prohibited transaction, as described in Section 406 of ERISA or Section 4975 of the Code, or failure to satisfy the minimum funding standards, within the meaning of Section 302 of ERISA and 412 of the Code, has occurred with respect to any Company Plan, and legal requirements;
(ii) all contributions required to be made under the terms of any Company Plan have been timely made;
(2iii) each Company Plan intended to be qualified under Section 401(a) of the Code (A) has received a favorable determination, advisory and/or opinion letter, as applicable, from the IRS that it is so qualifiedqualified and, (B) to the trust maintained thereunder has been determined to be exempt from taxation under Section 501(a) Knowledge of the Code and (C) to the Company’s knowledge, nothing has occurred since the date of such letter that could would reasonably be expected to cause the loss of the sponsor’s ability to rely upon such letter, and, to the Knowledge of the Company, nothing has occurred that would reasonably be expected to result in the loss of the qualified status of such Company Plan;
(3iv) there is no Action (including any investigation, audit or other administrative proceeding) by the Department of Labor, the Pension Benefit Guaranty Corporation, the IRS or any other Governmental Entity or by any plan participant or beneficiary pending, or to the knowledge Knowledge of the Company, threatened, relating to the Company Plans, any fiduciaries thereof to which the Company could have an indemnification obligation with respect to their duties to the Company Plans or the assets of any of the trusts under any of the Company Plans (other than routine claims for benefits) nor, to the knowledge Knowledge of the Company, are there facts or circumstances that exist that could reasonably give rise to any such actions;
(v) none of the Company, its Subsidiaries or any member of their Controlled Group has incurred any direct or indirect liability under ERISA, the Code or other applicable Laws in connection with the termination of, withdrawal from or failure to fund, any Company Plan or other retirement plan or arrangement, and, to the Knowledge of the Company, no fact or event exists that would reasonably be expect expected to give rise to any such Actionsliability;
(4) no Company Plan is or, within the preceding six years, has been subject to Title IV of ERISA or subject to Section 412 of the Code and neither the Company nor any Person that is a member of a “controlled group of corporations” with, or is under “common control” with, or is a member of the same “affiliated service group” with the Company, in each case, as defined in Sections 414(b), (c), (m) or (o) of the Code, maintains or contributes to (or has in the past six years maintained or contributed to) a multiemployer plan as defined in Section 3(37) of ERISA or a Title IV Plan;
(5vi) the Company and its Subsidiaries are do not subject to any material liability, including additional contributions, fine, penalties or loss of Tax Deductions as a result of the administration or operation of maintain any Company Plan that is a “group health plan” (as such term is defined in Section 5000(b)(1) of the Code)) that has not been administered and operated in all material respects in compliance with the applicable requirements of Section 601, et. seq. of ERISA and Section 4980B(b) of the Code, and the Company and its Subsidiaries are not subject to any liability, including additional contributions, fines, penalties or loss of Tax deduction as a result of such administration and operation;
(6) no Company Plan provides welfare benefits, including death or medical benefits (whether or not insured) beyond retirement or termination of service, other than coverage mandated solely by applicable Law;
(7vii) none of the Company Plans provides for payment of an amount or provision of a benefit, the increase of a payment or benefit, the payment of a contingent amount or provision of a contingent benefitcurrently provides, or the acceleration reflects or represents any material liability to provide post-termination or retiree welfare benefits to any person for any reason, except as may be required by Section 601, et. seq. of ERISA and Section 4980B(b) of the paymentCode or other applicable similar law regarding health care coverage continuation (collectively “COBRA”), funding or vesting of an amount or benefit determined or occasioned, in whole or in part, by reason and none of the Company, its Subsidiaries or any members of their Controlled Group has any material liability to provide post-termination or retiree welfare benefits to any person or ever represented, promised or contracted to any employee or former employee of the Company (either individually or to Company employees as a group) or any other person that such employee(s) or other person would be provided with post-termination or retiree welfare benefits, except to the extent required by statute or except with respect to a contractual obligation to reimburse any premiums such person may pay in order to obtain health coverage under COBRA;
(viii) with respect to each Company Plan that is not subject exclusively to United States Law (a “Non-U.S. Benefit Plan” ): (i) all employer and employee contributions to each Non-U.S. Benefit Plan required by applicable Law or by the terms of such Non-U.S. Benefit Plan or pursuant to any other contractual obligation (including contributions to all mandatory provident fund schemes) have been timely made in accordance with applicable Law; (ii) from and after the Effective Time, such funds, accruals or reserves under the Non-U.S. Benefit Plans shall be used exclusively to satisfy benefit obligations accrued under such Non-U.S. Benefit Plans or else shall remain or revert to Parent and its Affiliates in accordance with the terms of such Non-U.S. Benefit Plan or applicable Law; and (iii) each Non-U.S. Benefit Plan required to be registered has been registered and has been maintained in good standing with applicable regulatory authorities; and
(ix) the execution and delivery of this Agreement or and the consummation of the transactions contemplated hereby whether alone or together with any other event; and
(8) no amounts payable under the Company Plans Merger will fail to be deductible for federal income tax purposes by virtue of Section 280G of the Code as a result of the occurrence of the transactions contemplated by this Agreementnot, either alone or in combination with another any other event.
, (ci) The Company and its Subsidiaries have not entered into entitle any employment current or employment-related agreements (including change in control agreements and offer letters) to which a named individual is a partyformer employee, other than those set forth on Section 3.13(a) officer, director or consultant of the Company Disclosure Letteror any Subsidiary to severance pay, unemployment compensation or any other similar termination payment, or (ii) accelerate the time of payment or vesting, or increase the amount of or otherwise enhance any benefit due any such employee, officer, director or consultant.
(d) Neither the Company nor any Subsidiary is a party to any agreement, contract, arrangement or plan (including any Company Plan) that may reasonably be expected to result, separately or in the aggregate, in connection with the transactions contemplated by this Agreement (either alone or in combination with any other events), in the payment of any “parachute payments” within the meaning of Section 280G of the Code. There is no agreement, plan or other arrangement to which any of the Company or any Subsidiary is a party or by which any of them is otherwise bound to compensate any person in respect of taxes or other liabilities incurred with respect to Section 409A or 4999 of the Code.
(e) Each Company Plan that is constitutes in any part a “nonqualified deferred compensation plan” within the meaning of Section 409A(d)(1) of the Code (a “Nonqualified Deferred Compensation Plan”) subject to Section 409A of the Code and related Treasury Department guidance has (i) been operated between January 1, 2005 and December 31, 2008, maintained in good faith compliance with Section 409A of the Code and Notice 2005-01 the regulations and other administrative guidance promulgated thereunder (ii) since January 1, 2009 (or such later the “409A Authorities”). No Company Plan that would be a Nonqualified Deferred Compensation Plan subject to Section 409A of the Code but for the effective date permitted under provisions that are applicable guidance), been operated in compliance, and is in documentary compliance, in all material respects, with the requirements of to Section 409A of the Code.
, as set forth in Section 885(d) of the American Jobs Creation Act of 2004, as amended (e) Neither the Company nor any Subsidiary “AJCA”), has a binding commitment to create any additional material Company Plan, or any plan, agreement or arrangement that would be a material Company Plan if adopted, or to modify or terminate any existing material Company Plan, except as required by applicable Law.
(f) The ESOP is an been “employee stock ownership planmaterially modified” within the meaning of Section 4975(e)(7885(d)(2)(B) of the CodeAJCA after October 3, 2004, based upon a good faith reasonable interpretation of the AJCA and the 409A Authorities and has not been operated in compliance with the 409A Authorities. Neither No Participant is entitled to any gross-up, make-whole or other additional payment from the Company nor or any of its Subsidiaries in respect of any Tax (including Federal, state, local or foreign income, excise or other Taxes (including Taxes imposed under Section 409A of the ESOP has, within the three year period immediately preceding the date Code)) or interest or penalty related thereto.
(f) For purposes of this Agreement, received any inquiry “Participant” shall mean current or notice from former director, officer, employee, contractor or consultant of the IRS Company or any other governmental agency the effect of which is to question the qualification or status of the ESOP or any transaction entered into by the ESOP or the Company (with respect to the ESOP). The ESOP and the Company have filed all reports, returns or other documents in respect of the ESOP which are required to be filed pursuant to the applicable provisions of the Code and ERISA and the regulations thereunder. All loans entered into by the ESOP (the “ESOP Loans”) constitute “exempt loans” under Treasury Regulation Section 54.4975-7(b)(1)(iii). The securities held by the ESOP constitute “employer securities” under ERISA Section 407(d)(1) and Section 409(l) of the Code and “qualifying employer securities” under ERISA Section 407(d)(5) and Section 4975(e)(8) of the Codeits Subsidiaries.
Appears in 2 contracts
Sources: Merger Agreement (Aruba Networks, Inc.), Merger Agreement (Hewlett Packard Co)
Benefit Plans. (a) Section 3.13(a3.17(a) of the Company Disclosure Letter contains a true Schedule sets forth an accurate and complete list of the material Employee Plans (excluding any Benefit Plan that is an employment offer letter or individual independent contractor or consultant agreement that is terminable upon no more than thirty (30) days’ notice without further liability and does not provide any retention, change in control or severance payments or benefits). To the extent applicable, the Company has either delivered or made available to Parent prior to the execution of this Agreement with respect to each material Employee Plan accurate and complete copies of: (i) each material Employee Plan, including all plan documents and all amendments thereto, and all related trust or other funding documents, and in the case of unwritten material Employee Plans, written descriptions thereof, (ii) all determination letters, rulings, opinion letters, information letters or advisory opinions issued by the IRS or the United States Department of Labor, (iii) the most recent summary plan descriptions and any material modifications thereto, (iv) the most recent annual reports with accompanying schedules and attachments, filed with respect to each Employee Plan required to make such a filing, (v) the most recently prepared actuarial reports, financial statements and trustee reports, if any, relating to the Employee Plan, (vi) all material records, notices and filings concerning IRS or United States Department of Labor audits or investigations with respect to any Employee Plan, and (vii) any non-ordinary course correspondence with the Department of Labor, Internal Revenue Service, or any other Governmental Body regarding a Benefit Plan within the last two (2) years.
(b) No Employee Plan is, and neither any Company Plan. For purposes Entity nor any ERISA Affiliate, contributes to, or been required to contribute to or has any liability or obligation, whether fixed or contingent, with respect to (i) a single employer plan or other pension plan subject to Title IV of this AgreementERISA or Section 302 of ERISA or Code Section 412, including any “Company Plansingle employer” means each defined benefit plan (as defined in Section 4001 of ERISA), (ii) any “employee benefit multiemployer plan” (as defined in Section 4001 of ERISA), (iii) a “multiple employer plan” (within the meaning of Section 3(3413(c) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”)), stock purchase, stock option, severance, employment, change-in-control, fringe benefit, bonus, incentive, deferred compensation, employee loan Code) or other employee benefit plan, agreement, program, policy or other arrangement, whether or not subject to ERISA (including any funding mechanism therefor now in effect or required in the future as a result of the transactions contemplated by this Agreement or otherwise), whether written or unwritten, in each case (i) maintained by the Company or any of its Subsidiaries for current or former directors, employees or consultants of the Company or (ii) under which (A) any employee, director or consultant or former employee, director or consultant of the Company or any of its Subsidiaries has any present or future right to benefits and (B) the Company or any of its Subsidiaries has had or has any present or future liability or obligation to contribute. With respect to each material Company Plan, the Company has furnished or made available to Parent a current, accurate and complete copy thereof, including any amendments, and, to the extent applicable: (i) any related trust agreement or other funding instrument, (ii) the most recent determination, opinion or advisory letter of the Internal Revenue Service (the “IRS”), if applicable, (iii) any summary plan description or other material written communications by the Company or its Subsidiaries to their employees concerning the extent of the benefits provided under a Company Plan and (iv) a multiple employer welfare arrangement (within the most recent (Ameaning of Section 3(40) Form 5500 and attached schedules, (B) audited financial statements, and (C) actuarial valuation reportsof ERISA).
(bc) Except as disclosed in Section 3.13(b) of the Company Disclosure Letter and except as, individually or in the aggregate, has not had, and would not reasonably be expected to have, have a Material Adverse Effect on the CompanyEffect, with respect all payments, contributions and premiums related to each Employee Plan have been timely paid or made in full or, to the extent not yet due, properly accrued on any Company Plans:
(1) each Company Plan has been established and administered Entity balance sheet in accordance with its the terms and in compliance with of the applicable provisions of ERISA, the Code Employee Plan and all other applicable LawsLegal Requirements.
(d) No Employee Plan, and in the six years preceding the date hereof no reportable event, as defined in Section 4043 of ERISA, no prohibited transaction, as described in Section 406 of ERISA or Section 4975 of the Code, or failure to satisfy the minimum funding standards, within the meaning of Section 302 of ERISA and 412 of the Code, has occurred neither any Company Entity nor any Employee Plan fiduciary with respect to any Company Employee Plan, and all contributions required in any case, is the subject of an audit or investigation by the IRS, the Department of Labor, the Pension Benefit Guaranty Corporation or any other Governmental Body, nor is any such audit or investigation pending or, to be made under the terms knowledge of any Company Plan have been timely made;the Company, threatened.
(2e) each Company Plan Each of the Employee Plans that is intended to be qualified under Section 401(a) of the Code (A) has received obtained a favorable determination, advisory and/or determination letter (or opinion letter, if applicable) as applicable, from the IRS that it is so qualified, (B) the trust maintained thereunder has been determined to be exempt from taxation under Section 501(a) of the Code and (C) to the Company’s knowledge, nothing has occurred since the date of such letter that could reasonably be expected to cause the loss of such its qualified status of such Company Plan;
(3) there is no Action (including any investigationunder the Code, audit or other administrative proceeding) by the Department of Labor, the Pension Benefit Guaranty Corporation, the IRS or any other Governmental Entity or by any plan participant or beneficiary pending, or to the knowledge of the Company, threatened, relating to the Company Plans, any fiduciaries thereof to which the Company could have an indemnification obligation with respect to their duties to the Company Plans or the assets of any of the trusts under any of the Company Plans (other than routine claims for benefits) norand, to the knowledge of the Company, there are there facts no existing circumstances or circumstances any events that exist have occurred that could would reasonably be expect expected to give rise to affect materially and adversely the qualified status of any such Actions;Employee Plan. Each of the Employee Plans is now and has been maintained, operated and administered in compliance in all material respects with its terms and all applicable Legal Requirements, including but not limited to ERISA and the Code.
(4f) no Company Plan is or, within Except to the preceding six years, has been subject to Title IV extent required under Section 601 et seq. of ERISA or subject to Section 412 4980B of the Code and neither (or any other similar state or local Legal Requirement), the Company nor Entities (whether under an Employee Plan or otherwise) do not have and have not had any Person that is a member of a “controlled group of corporations” withpresent or future obligation to provide health, accident, disability, life or other welfare benefits to or make any payment to, or is under “common control” withwith respect to, any present or is a member of the same “affiliated service group” with the Companyformer employee, in each caseconsultant, as defined in Sections 414(b)officer, (c), (m) director or (o) of the Code, maintains or contributes to (or has in the past six years maintained or contributed to) a multiemployer plan as defined in Section 3(37) of ERISA or a Title IV Plan;
(5) the Company and its Subsidiaries are not subject to any material liability, including additional contributions, fine, penalties or loss of Tax Deductions as a result of the administration or operation retiree of any Company Plan that is a “group health plan” Entity (or any spouse, beneficiary or dependent of the foregoing) beyond the termination of employment or other service of such employee, consultant, officer, director or retiree.
(g) Except as such term is defined provided in Section 5000(b)(1) 2.8, the execution and delivery of this Agreement and the consummation of the Code);
Transactions (6either alone or in combination with other events or circumstances, whether contingent or otherwise) no contemplated hereby will not (i) entitle any current or former employee, director, officer, independent contractor or other service provider of any Company Plan provides welfare benefitsEntity to severance pay, including death unemployment compensation or medical benefits any other payment, (whether or not insuredii) beyond retirement or termination accelerate the time of service, other than coverage mandated solely by applicable Law;
(7) none of the Company Plans provides for payment of an amount or provision of a benefit, the increase of a payment or benefit, the payment of a contingent amount or provision of a contingent benefit, or the acceleration of the payment, funding or vesting vesting, or increase the amount of, compensation or benefits due to any such employee, director, officer, independent contractor or other service provider of an amount any Company Entity, (iii) directly or benefit determined indirectly cause any Company Entity to transfer or occasioned, set aside any material assets to fund any benefits under any Employee Plan or (iv) result in whole or in part, by reason of any “parachute payment” within the execution of this Agreement or the consummation of the transactions contemplated hereby whether alone or together with any other event; and
(8) no amounts payable under the Company Plans will fail to be deductible for federal income tax purposes by virtue meaning of Section 280G of the Code as a result of and the occurrence of the transactions contemplated by this Agreement, either alone or in combination with another eventregulations and guidance thereunder.
(ch) The No Company and its Subsidiaries have not entered into Entity has sponsored, maintained, contributed to, or been required to sponsor, maintain, participate in or contribute to, any employment employee benefit plan, program, or employment-related agreements other arrangement providing compensation or benefits to any service provider (including change in control agreements and offer lettersor any dependent thereof) which is subject to which a named individual is a party, other than those set forth on Section 3.13(a) the Legal Requirements of any jurisdiction outside of the Company Disclosure LetterUnited States.
(d) Each Company Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A of the Code and related Treasury Department guidance has (i) been operated between January 1, 2005 and December 31, 2008, in good faith compliance with Section 409A of the Code and Notice 2005-01 and (ii) since January 1, 2009 (or such later date permitted under applicable guidance), been operated in compliance, and is in documentary compliance, in all material respects, with the requirements of Section 409A of the Code.
(e) Neither the Company nor any Subsidiary has a binding commitment to create any additional material Company Plan, or any plan, agreement or arrangement that would be a material Company Plan if adopted, or to modify or terminate any existing material Company Plan, except as required by applicable Law.
(f) The ESOP is an “employee stock ownership plan” within the meaning of Section 4975(e)(7) of the Code. Neither the Company nor the ESOP has, within the three year period immediately preceding the date of this Agreement, received any inquiry or notice from the IRS or any other governmental agency the effect of which is to question the qualification or status of the ESOP or any transaction entered into by the ESOP or the Company (with respect to the ESOP). The ESOP and the Company have filed all reports, returns or other documents in respect of the ESOP which are required to be filed pursuant to the applicable provisions of the Code and ERISA and the regulations thereunder. All loans entered into by the ESOP (the “ESOP Loans”) constitute “exempt loans” under Treasury Regulation Section 54.4975-7(b)(1)(iii). The securities held by the ESOP constitute “employer securities” under ERISA Section 407(d)(1) and Section 409(l) of the Code and “qualifying employer securities” under ERISA Section 407(d)(5) and Section 4975(e)(8) of the Code.
Appears in 2 contracts
Sources: Merger Agreement (Cti Biopharma Corp), Merger Agreement (Cti Biopharma Corp)
Benefit Plans. (a) Section 3.13(a) of the Company Disclosure Letter contains a true and complete list of each material Company Plan. For purposes of this Agreement, “Company Plan” means each “employee benefit plan” (within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”)), stock purchase, stock option, severance, employment, change-in-control, fringe benefit, bonus, incentive, deferred compensation, employee loan or other employee benefit plan, agreement, program, policy or other arrangement, whether or not subject to ERISA (including any funding mechanism therefor now in effect or required in the future as a result of the transactions contemplated by this Agreement or otherwise), whether written or unwritten, in each case (i) maintained by the Company or any of its Subsidiaries for current or former directors, employees or consultants of the Company or (ii) under which (A) any employee, director or consultant or former employee, director or consultant of the Company or any of its Subsidiaries has any present or future right to benefits and (B) the Company or any of its Subsidiaries has had or has any present or future liability or obligation to contribute. With respect to each material Company Plan, the Company has furnished or made available to Parent a current, accurate and complete copy thereof, including any amendments, and, to the extent applicable: (i) any related trust agreement or other funding instrument, (ii) the most recent determination, opinion or advisory letter of the Internal Revenue Service (the “IRS”), if applicable, (iii) any summary plan description or other material written communications by the Company or its Subsidiaries to their employees concerning the extent of the benefits provided under a Company Plan and (iv) the most recent (A) Form 5500 and attached schedules, (B) audited financial statements, and (C) actuarial valuation reports.
(b) Except as disclosed in Section 3.13(b) of the Company Disclosure Letter and except as, individually or in the aggregate, has not had, and would not reasonably be expected to have, a Material Adverse Effect on the Company, with respect to the Company Plans:
(1) each Company Plan has been established and administered in accordance with its terms and in compliance with the applicable provisions of ERISA, the Code and all other applicable Laws, and in the six years preceding the date hereof no reportable event, as defined in Section 4043 of ERISA, no prohibited transaction, as described in Section 406 of ERISA SCHEDULE 5.23 hereto, the Seller does not maintain or Section 4975 contribute to any Benefit Plans. Without limiting the generality of the Codeforegoing provision of this Section, except as described in SCHEDULE 5.23 hereto, there are no pension plans, welfare plans or failure to satisfy the minimum funding standards, within the meaning of Section 302 of ERISA and 412 of the Code, has occurred with respect to any Company Plan, and all contributions required to be made under the terms of any Company Plan have been timely made;
(2) each Company Plan intended to be employee benefit plans qualified under Section 401(a) of the Code (A) has received to which the Seller is required to contribute. The Seller does not and will not have any unfunded Liability for services rendered prior to the Closing Date under any Benefit Plans. The Seller is not in any material default under any Benefit Plan. Except as set forth in Schedule 5.23, neither the Seller, nor any entity now or formerly part of a favorable determinationcontrolled group with the Seller, advisory and/or opinion letter, as applicable, from within the IRS that it is so qualified, (B) the trust maintained thereunder has been determined to be exempt from taxation under meaning of Section 501(a412(c)(11)(B)(ii) of the Code and (CCode, maintains or has ever maintained a "defined benefit plan," as defined in Section 3(35) to the Company’s knowledgeof ERISA, nothing has occurred since the date of such letter that could reasonably be expected to cause the loss of such qualified status of such Company Plan;
(3) there is no Action (including any investigation, audit or other administrative proceeding) by the Department of Labor, the Pension Benefit Guaranty Corporation, the IRS or any other Governmental Entity or by any plan participant or beneficiary pending, or to the knowledge of the Company, threatened, relating to the Company Plans, any fiduciaries thereof to which the Company could have an indemnification obligation with respect to their duties to the Company Plans or the assets of any of the trusts under any of the Company Plans (other than routine claims for benefits) nor, to the knowledge of the Company, are there facts or circumstances that exist that could reasonably be expect to give rise to any such Actions;
(4) no Company Plan is or, within the preceding six years, has been subject to Title IV of ERISA or subject to Section 412 of the Code and Section 302 of ERISA. Except as set forth in SCHEDULE 5.23 hereto, neither the Company Seller nor any Person that is a member of a “controlled group of corporations” with, or is under “common control” with, or is a member of the same “affiliated service group” with the Company, in each case, as defined in Sections 414(b), (c), (m) or (o) of the Code, maintains or its "subsidiaries" contributes to (or has in the past six years maintained or contributed toany Liability (including but not limited to withdrawal Liability) a multiemployer with respect to any multi-employer plan (as defined in Section 3(374064(a) of ERISA or a Title IV Plan;
(5Section 4001(a)(3) the Company and its Subsidiaries of ERISA). Other than claims for benefits in ordinary course, there are not subject no actions, suits, disputes, arbitrations or other material claims pending or, to Seller's' Knowledge, Threatened with respect to any material liabilityBenefit Plan. For purposes of this Section, including additional contributions, fine, penalties "subsidiaries" shall include all corporations and all trades or loss of Tax Deductions as a result of the administration or operation of any Company Plan that is a “group health plan” (as such term is defined in Section 5000(b)(1) of the Code);
(6) no Company Plan provides welfare benefits, including death or medical benefits businesses (whether or not insuredincorporated) beyond retirement which may be liable for any income Tax, loss of Tax deduction, excise Taxes, penalties or termination of service, other than coverage mandated solely by applicable Law;
similar consequences under ERISA (7as hereinafter defined) none of or under the Company Plans provides for payment of an amount or provision of a benefit, the increase of a payment or benefit, the payment of a contingent amount or provision of a contingent benefit, or the acceleration of the payment, funding or vesting of an amount or benefit determined or occasioned, in whole or in part, Code by reason of the execution of this Agreement or the consummation of the transactions contemplated hereby whether alone or together with any other event; and
(8) no amounts payable under the Company Plans will fail to be deductible for federal income tax purposes by virtue of Section 280G of the Code as a result of the occurrence of the transactions contemplated by this Agreement, either alone or in combination with another event.
(c) The Company and its Subsidiaries have not entered into any employment or employment-related agreements (including change in control agreements and offer letters) to which a named individual is a party, other than those set forth on Section 3.13(a) of the Company Disclosure Letter.
(d) Each Company Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A of the Code and related Treasury Department guidance has (i) been operated between January 1, 2005 and December 31, 2008, in good faith compliance with Section 409A of the Code and Notice 2005-01 and (ii) since January 1, 2009 (or such later date permitted under applicable guidance), been operated in compliance, and is in documentary compliance, in all material respects, ownership affiliation with the requirements of Section 409A of the CodeSeller.
(e) Neither the Company nor any Subsidiary has a binding commitment to create any additional material Company Plan, or any plan, agreement or arrangement that would be a material Company Plan if adopted, or to modify or terminate any existing material Company Plan, except as required by applicable Law.
(f) The ESOP is an “employee stock ownership plan” within the meaning of Section 4975(e)(7) of the Code. Neither the Company nor the ESOP has, within the three year period immediately preceding the date of this Agreement, received any inquiry or notice from the IRS or any other governmental agency the effect of which is to question the qualification or status of the ESOP or any transaction entered into by the ESOP or the Company (with respect to the ESOP). The ESOP and the Company have filed all reports, returns or other documents in respect of the ESOP which are required to be filed pursuant to the applicable provisions of the Code and ERISA and the regulations thereunder. All loans entered into by the ESOP (the “ESOP Loans”) constitute “exempt loans” under Treasury Regulation Section 54.4975-7(b)(1)(iii). The securities held by the ESOP constitute “employer securities” under ERISA Section 407(d)(1) and Section 409(l) of the Code and “qualifying employer securities” under ERISA Section 407(d)(5) and Section 4975(e)(8) of the Code.
Appears in 2 contracts
Sources: Purchase and Sale Agreement (Genmar Holdings Inc), Purchase and Sale Agreement (Genmar Holdings Inc)
Benefit Plans. (a) Section 3.13(a) of the Company Disclosure Letter contains a true correct and complete list of of: (i) each material Company Plan. For purposes of this Agreement, “Company Plan” means each “employee benefit plan” (within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”)), stock purchase, stock option, severance, employment, change-in-control, fringe benefit, bonus, incentive, deferred compensation, employee loan or other employee benefit plan, agreement, program, policy or other arrangementincluding multiemployer plans within the meaning of Section 3(37) of ERISA, whether oral or not subject to ERISA (including any funding mechanism therefor now in effect or required in the future as a result of the transactions contemplated by this Agreement or otherwise), whether written or unwrittenwritten, in each case (i) maintained by the Company or any of its Subsidiaries for current or former directors, employees or consultants of the Company or (ii) under which (A) any employeepast or present director, director executive officer or consultant or former employee, director or consultant employee of the Company or any of its Subsidiaries has any present or future right to benefits and (B) benefits, or under which the Company or any of its Subsidiaries has had have any liability or obligation, contingent or otherwise; and (ii) each other severance, retention or change-of-control Contract, whether formal or informal, in each case under which any past or present director or executive officer, or Person with the title of Division President or higher, of the Company has any present or future right to benefits, or under which the Company or any of its Subsidiaries have any liability or obligation obligation, contingent or otherwise to contributeany such director, officer or employee. No Company Benefit Plan is a “multiemployer plan” (within the meaning of Section 4001(a)(3) of ERISA) (a “Multiemployer Plan”) or a plan that has two or more contributing sponsors at least two of whom are not under common control (within the meaning of Section 4063 of ERISA) (a “Multiple Employer Plan”). No entity is a member of the Company’s “controlled group” (within the meaning of Section 414 of the Code) other than the Company and its Subsidiaries.
(b) With respect to each material Company Benefit Plan, if applicable, the Company has furnished or made available to Parent a current, accurate correct and complete copy thereof, including any amendments, and, to the extent applicable: copies of (i) any all plan texts and agreements and related trust agreement agreements (or other funding instrument, vehicles); (ii) the most recent determinationsummary plan descriptions and material employee communications (including a description of any material oral communications) concerning the extent of the benefits provided under a Company Benefit Plan; (iii) the most recent annual report (including all schedules); (iv) the most recent annual audited financial statements; (v) if the plan is intended to qualify under Section 401(a) of the Code, opinion or advisory the most recent determination letter of received from the Internal Revenue Service (the “IRS”), if applicable, (iii) any summary plan description or other material written communications by the Company or its Subsidiaries to their employees concerning the extent of the benefits provided under a Company Plan ; and (ivvi) the most recent (A) Form 5500 and attached schedulesall material communications with any Governmental Entity given or received since January 1, (B) audited financial statements, and (C) actuarial valuation reports.
(b) 2007. Except as disclosed set forth in Section 3.13(b) of the Company Disclosure Letter Letter, there is no present intention that any Company Benefit Plan be materially amended, suspended or terminated, or otherwise modified to adversely change benefits (or the level thereof) under any Company Benefit Plan at any time within the twelve months immediately following the date of this Agreement other than as required by applicable Law or as disclosed in the Company SEC Documents.
(c) Except as set forth in Section 3.13(c) of the Company Disclosure Letter, since January 1, 2007, there has not been any (i) amendment or change in interpretation relating to any Company Benefit Plan which would materially increase the cost of such Company Benefit Plan, (ii) grant of any severance or termination pay to any present or former director or executive officer of the Company or any of its Subsidiaries who earned at termination in excess of $100,000 per annum (as measured by annual base salary and except asannual target bonus), individually (iii) loan or advance of money or other property by the Company to any of its present or former directors or executive officers, or (iv) establishment, adoption, entrance into, or termination of any Company Benefit Plan (other than as may be required by the terms of an existing Company Benefit Plan, or as may be required by applicable Law or in order to qualify under Sections 401 and 501 of the aggregateCode).
(d) With respect to each Company Benefit Plan that is subject to Title IV or Section 302 of ERISA or Section 412 or 4971 of the Code: (i) there does not exist any accumulated funding deficiency within the meaning of Section 412 of the Code or Section 302 of ERISA, whether or not waived; (ii) no reportable event within the meaning of Section 4043(c) of ERISA for which the 30-day notice requirement has not hadbeen waived has occurred, and the consummation of the transactions contemplated by this Agreement will not result in the occurrence of any such reportable event; (iii) no liability (other than for premiums to the Pension Benefit Guaranty Corporation (the “PBGC”)) under Title IV of ERISA has been incurred by the Company or any of its Subsidiaries; (iv) the PBGC has not instituted proceedings to terminate any such plan or made any inquiry which would not reasonably be expected to havelead to termination of any such plan, a Material Adverse Effect on and, to the Knowledge of the Company, no condition exists that presents a material risk that such proceedings will be instituted or which would constitute grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any such plan; and (v) the funded status of such Company Benefit Plan as reflected in the Company SEC Documents is accurate in all material respects and such Company SEC Documents fairly present, in all material respects, the funded status of each such plan. Neither the Company nor any of its Subsidiaries has, at any time during the last six years, contributed to or been obligated to contribute to any Multiemployer Plan or Multiple Employer Plan other than a plan listed on Section 3.13(a) of the Company Disclosure Letter. Neither the Company nor any of its Subsidiaries has incurred any liability to a Multiemployer Plan as a result of a complete or partial withdrawal from such Multiemployer Plan (as those terms are defined in Part I of Subtitle E of Title IV of ERISA) (a “Withdrawal Liability”) that has not been satisfied in full.
(e) Except as set forth in Section 3.13(e) of the Company Disclosure Letter, each Company Benefit Plan which is intended to qualify under Section 401(a) of the Code has been issued a favorable determination letter by the IRS with respect to such qualification and no event has occurred since the date of such qualification that would reasonably be expected to materially and adversely affect such qualification. Each Company Plans:
(1) each Company Benefit Plan has been established and administered in all material respects accordance with its terms terms, and in compliance in all material respects with the applicable provisions of ERISA, the Code and all other applicable Laws. No event has occurred and no condition exists that would reasonably be expected to, and in subject the six years preceding the date hereof no reportable event, as defined in Section 4043 Company by reason of ERISA, no prohibited transaction, as described in Section 406 its affiliation with any current or former member of ERISA or Section 4975 of the Code, or failure to satisfy the minimum funding standards, its “controlled group” (within the meaning of Section 302 of ERISA and 412 414 of the Code, has occurred with respect ) to any Company Plan(i) Tax, and all contributions required to be made under the terms of any Company Plan have been timely made;
(2) each Company Plan intended to be qualified under Section 401(a) of the Code (A) has received a favorable determinationpenalty, advisory and/or opinion letter, as applicable, from the IRS that it is so qualifiedfine, (Bii) the trust maintained thereunder has been determined to be exempt from taxation under Section 501(a) of the Code and (C) to the Company’s knowledge, nothing has occurred since the date of such letter that could reasonably be expected to cause the loss of such qualified status of such Company Plan;
(3) there is no Action (including any investigation, audit or other administrative proceeding) by the Department of Labor, the Pension Benefit Guaranty Corporation, the IRS or any other Governmental Entity or by any plan participant or beneficiary pending, or to the knowledge of the Company, threatened, relating to the Company Plans, any fiduciaries thereof to which the Company could have an indemnification obligation with respect to their duties to the Company Plans or the assets of any of the trusts under any of the Company Plans Lien (other than routine claims for benefits) nor, to the knowledge of the Company, are there facts or circumstances that exist that could reasonably be expect to give rise to any such Actions;
(4) no Company Plan is or, within the preceding six years, has been subject to Title IV of ERISA or subject to Section 412 of the Code and neither the Company nor any Person that is a member of a “controlled group of corporations” with, or is under “common control” with, or is a member of the same “affiliated service group” with the Company, in each case, as defined in Sections 414(b), (c), (mPermitted Lien) or (oiii) of other material Liability imposed by ERISA, the Code, maintains Code or contributes to (or has in the past six years maintained or contributed to) a multiemployer plan as defined in Section 3(37) of ERISA or a Title IV Plan;other applicable Laws.
(5f) There are no Company Benefit Plans under which welfare benefits are provided to past or present employees of the Company and its Subsidiaries are not subject to any material liability, including additional contributions, fine, penalties or loss of Tax Deductions as a result of the administration or operation of any Company Plan that is a “group health plan” (as such term is defined in Section 5000(b)(1) of the Code);
(6) no Company Plan provides welfare benefits, including death or medical benefits (whether or not insured) beyond their retirement or other termination of service, other than coverage mandated solely by applicable Law;the Consolidated Omnibus Budget Recommendation Act of 1985 (“COBRA”), Section 4980B of the Code, Title I of ERISA or any similar state group health plan continuation Laws, except as would not, individually or in the aggregate, have or reasonably be expected to have a Company Material Adverse Effect.
(7g) none of the Company Plans provides for payment of an amount or provision of a benefit, the increase of a payment or benefit, the payment of a contingent amount or provision of a contingent benefit, or the acceleration of the payment, funding or vesting of an amount or benefit determined or occasioned, in whole or in part, by reason of Neither the execution and delivery of this Agreement or nor the consummation of the transactions contemplated hereby whether alone or together with any other event; and
will (8) no amounts payable under the Company Plans will fail to be deductible for federal income tax purposes by virtue of Section 280G of the Code as a result of the occurrence of the transactions contemplated by this Agreement, either alone or in combination with another event.
) (ci) The result in any payment becoming due, or increase the amount of any compensation or benefits due, to any current or former employee of the Company and its Subsidiaries have not entered into or with respect to any employment Company Benefit Plan; (ii) increase any benefits otherwise payable under any Company Benefit Plan; (iii) result in the acceleration of the time of payment or employmentvesting of any such compensation or benefits; (iv) result in a non-related agreements exempt “prohibited transaction” within the meaning of Section 406 of ERISA or section 4975 of the Code; (including change in control agreements and offer lettersv) limit or restrict the right of the Company to which a named individual is a partymerge, other than those amend or terminate any of the Company Benefit Plans; or (vi) except as set forth on in Section 3.13(a3.13(g) of the Company Disclosure Letter, result in the payment of any amount that would, individually or in combination with any other such payment, reasonably be expected to constitute an “excess parachute payment,” as defined in Section 280G(b)(1) of the Code.
(dh) Except as set forth in Section 3.13(h) of the Company Disclosure Letter, neither the Company nor any of its Subsidiaries or any Company Benefit Plan, nor to the Knowledge of the Company any “disqualified person” (as defined in Section 4975 of the Code) or “party in interest” (as defined in Section 3(18) of ERISA), has engaged in any non-exempt prohibited transaction (within the meaning of Section 4975 of the Code or Section 406 of ERISA) which, individually or in the aggregate, has resulted or would reasonably be expected to result in any material liability to the Company or any of its Subsidiaries. Except as set forth in Section 3.13(h) of the Company Disclosure Letter, with respect to any Company Benefit Plan, (i) no material Legal Actions (including any administrative investigation, audit or other proceeding by the Department of Labor or the Internal Revenue Service other than routine claims for benefits in the ordinary course) are pending or, to the Knowledge of the Company, threatened, and (ii) to the Knowledge of the Company, no events or conditions have occurred or exist that would reasonably be expected to give rise to any such material Legal Actions.
(i) All Company Benefit Plans subject to the laws of any jurisdiction outside of the United States (i) have been maintained in all material respects in accordance with all applicable requirements, (ii) if they are intended to qualify for special tax treatment, meet the qualification requirements for such treatment in all material respects, and (iii) if they are intended to be funded and/or book-reserved, are fully funded and/or book reserved, as appropriate, based upon reasonable actuarial assumptions.
(j) Each Company Plan that is a “nonqualified deferred compensation plan” within the meaning of (as defined in Section 409A 409A(d)(1) of the Code and related Treasury Department guidance Code) of the Company has (i) been operated between since January 1, 2005 and December 31, 2008, in good faith compliance with Section 409A of the Code and Notice 2005-01 the Treasury Regulations and (ii) since January 1, 2009 (or such later date permitted under applicable guidance), been operated in compliance, and is in documentary compliance, in all material respects, with the requirements of Section 409A of the Codeother guidance issued thereunder.
(e) Neither the Company nor any Subsidiary has a binding commitment to create any additional material Company Plan, or any plan, agreement or arrangement that would be a material Company Plan if adopted, or to modify or terminate any existing material Company Plan, except as required by applicable Law.
(f) The ESOP is an “employee stock ownership plan” within the meaning of Section 4975(e)(7) of the Code. Neither the Company nor the ESOP has, within the three year period immediately preceding the date of this Agreement, received any inquiry or notice from the IRS or any other governmental agency the effect of which is to question the qualification or status of the ESOP or any transaction entered into by the ESOP or the Company (with respect to the ESOP). The ESOP and the Company have filed all reports, returns or other documents in respect of the ESOP which are required to be filed pursuant to the applicable provisions of the Code and ERISA and the regulations thereunder. All loans entered into by the ESOP (the “ESOP Loans”) constitute “exempt loans” under Treasury Regulation Section 54.4975-7(b)(1)(iii). The securities held by the ESOP constitute “employer securities” under ERISA Section 407(d)(1) and Section 409(l) of the Code and “qualifying employer securities” under ERISA Section 407(d)(5) and Section 4975(e)(8) of the Code.
Appears in 2 contracts
Sources: Merger Agreement (Jarden Corp), Merger Agreement (K2 Inc)
Benefit Plans. (a) Section 3.13(a4.12(a) of the Company Disclosure Letter contains a true correct and complete list of each material Company Plan. For purposes of this Agreement, “Company Plan” means each “employee benefit plan” (within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”)), and each other stock purchase, stock option, restricted stock, severance, retention, employment, consulting, change-inof-control, fringe benefitcollective bargaining, bonus, incentive, deferred compensation, employee loan or loan, fringe benefit and other employee benefit plan, agreement, program, policy policy, commitment or other arrangement, whether or not subject to ERISA (including any related funding mechanism therefor now in effect or required in the future as a result of the transactions contemplated by this Agreement or otherwisefuture), whether written or unwritten, in each case (i) maintained by the Company or any of its Subsidiaries for current or former directors, employees or consultants of the Company or (ii) under which (A) any past or present director, officer, employee, director or consultant or former employee, director or consultant independent contractor of the Company or any of its Subsidiaries has any present or future right to benefits and (B) benefits, or with respect to which the Company or any of its Subsidiaries has had or may have any material liability (contingent or otherwise). All such plans, agreements, programs, policies, commitments and arrangements are collectively referred to as the “Company Benefit Plans.”
(b) No event has occurred and no condition exists that would subject the Company by reason of its affiliation with any present current or future former member of its “controlled group” (within the meaning of Section 414 of the Code) (an “ERISA Affiliate”) to any material Tax, penalty, fine or other liability imposed by ERISA, the Code or obligation other applicable Laws.
(c) No Company Benefit Plan is a “multiemployer plan” as defined in Section 3(37) of ERISA, and neither of the Company, nor any ERISA Affiliate has withdrawn at any time within the preceding six years from any multiemployer plan, or incurred any withdrawal liability which remains unsatisfied, and no events have occurred and no circumstances exist that could reasonably be expected to contribute. result in any such liability to the Company or any ERISA Affiliate.
(d) With respect to each material Company Benefit Plan, if applicable, the Company has furnished or made available to Parent a current, accurate correct and complete copy thereof, including any amendments, and, to the extent applicable: copies of (i) any all plan documents, if any, including related trust agreement or other agreements, funding instrumentarrangements, and insurance contracts and all amendments thereto; (ii) the most recent determinationsummary plan descriptions and any summaries of material modifications; (iii) the most recent financial reports for such Company Benefit Plan, opinion or advisory letter of if any; (iv) the most recent determination letter, if any, received from the Internal Revenue Service (the “IRS”), if applicable, (iii) any summary plan description or other material written communications by regarding the tax-qualified status of such Company or its Subsidiaries to their employees concerning the extent of the benefits provided under a Company Plan Benefit Plan; and (ivv) the most recent (A) Form 5500 Annual Returns/Reports, including all schedules and attached schedulesattachments, including the certified audit opinions, (B) audited financial statements, and (C) actuarial valuation reports, and (D) attorney’s response to an auditor’s request for information for each of the two most recent plan years.
(be) Except as disclosed No Company Benefit Plan is subject to Title IV or Section 302 of ERISA or Section 412 or 4971 of the Code, and neither the Company nor any ERISA Affiliate has at any time within the preceding six years terminated or incurred any liability with respect to any employee benefit plan subject to Title IV or Section 302 of ERISA or Section 412 or 4971 of the Code. No Company Benefit Plan other than the Change In Control Plan provides health or life insurance or other welfare-type benefits for current or future retired or terminated employees of the Company or any of its Subsidiaries (or any spouse or other dependent thereof) other than in accordance with the requirements of Part 6 of Subtitle B of Title I of ERISA and Section 3.13(b4980B of the Code and of any similar state or local law.
(f) Each Company Benefit Plan which is intended to qualify under Section 401(a) of the Company Disclosure Letter Code has been issued a favorable determination letter by the IRS with respect to such qualification, its related trust has been determined to be exempt from taxation under Section 501(a) of the Code (or such qualified plan has been established under a prototype or volume submitter plan for which an IRS opinion letter has been obtained by the plan sponsor and except as, individually or in is sufficient as to the aggregate, has not hadadopting employer), and no event has occurred that would not reasonably be expected to have, a Material Adverse Effect on the Company, with respect to the adversely affect such qualification or exemption. Each Company Plans:
(1) each Company Benefit Plan has been established and administered in accordance with its terms terms, and in compliance in all material respects with the applicable provisions of ERISA, the Code and all other applicable Laws, . All contributions (including all employer contributions and employee salary reduction contributions) required to have been made under any of the Company Benefit Plans to any funds or trusts established thereunder or in connection therewith have been made by the six years preceding due date thereof and all contributions for any period ending on or before the date hereof no Closing Date which are not yet due will have been paid or accrued prior to the Closing Date. No reportable event, as defined in Section 4043 of ERISA, no prohibited transaction, as described in Section 406 of ERISA or Section 4975 of the Code, or failure to satisfy the minimum accumulated funding standardsdeficiency, within the meaning of as defined in Section 302 of ERISA and 412 of the Code, has occurred with respect to any Company Benefit Plan.
(g) Except (i) for the Change In Control Plan, and all contributions required to be made under the terms of (ii) any Company Plan have been timely made;
Stock Award Plans (2or awards thereunder), (iii) each Company Plan intended to be qualified under as contemplated by Section 401(a6.7 or (iv) as set forth in Section 4.12(g) of the Code Company Disclosure Letter, neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby will (either alone or in combination with another event including notice, lapse of time or both) (A) has received a favorable determination, advisory and/or opinion letter, as applicable, from the IRS that it is so qualified, (B) the trust maintained thereunder has been determined to be exempt from taxation under Section 501(a) of the Code and (C) to the Company’s knowledge, nothing has occurred since the date of such letter that could reasonably be expected to cause the loss of such qualified status of such Company Plan;
(3) there is no Action (including result in any investigation, audit or other administrative proceeding) by the Department of Labor, the Pension Benefit Guaranty Corporation, the IRS or any other Governmental Entity or by any plan participant or beneficiary pendingpayment becoming due, or to increase the knowledge of the Company, threatened, relating to the Company Plans, any fiduciaries thereof to which the Company could have an indemnification obligation with respect to their duties to the Company Plans or the assets amount of any of the trusts under any of the Company Plans (other than routine claims for benefits) norcompensation or benefits due, to the knowledge any current or former employee of the Company, are there facts or circumstances that exist that could reasonably be expect to give rise to any such Actions;
(4) no Company Plan is or, within the preceding six years, has been subject to Title IV of ERISA or subject to Section 412 of the Code and neither the Company nor any Person that is a member of a “controlled group of corporations” with, or is under “common control” with, or is a member of the same “affiliated service group” with the Company, in each case, as defined in Sections 414(b), (c), (m) or (o) of the Code, maintains or contributes to (or has in the past six years maintained or contributed to) a multiemployer plan as defined in Section 3(37) of ERISA or a Title IV Plan;
(5) the Company and its Subsidiaries are not subject or with respect to any material liability, including additional contributions, fine, penalties or loss of Tax Deductions as a Company Benefit Plan; (B) increase any benefits otherwise payable under any Company Benefit Plan; (C) result in the acceleration of the administration time of payment or operation vesting of any compensation or benefits; (D) result in a non-exempt “prohibited transaction” within the meaning of Section 406 of ERISA or Section 4975 of the Code; (E) limit or restrict the right of the Company Plan to merge, amend or terminate any of the Company Benefit Plans; or (F) result in the payment of any amount that is a would, individually or in combination with any other such payment, reasonably be expected to constitute an “group health planexcess parachute payment,” (as such term is defined in Section 5000(b)(1280G(b)(1) of the Code);.
(6h) no Company Plan provides welfare benefits, including death or medical benefits (whether or not insured) beyond retirement or termination of service, other than coverage mandated solely by applicable Law;
(7) none None of the Company Benefit Plans provides for payment of an amount or provision of a benefit, the increase of a payment or benefitbenefit amount, the payment of a contingent amount or provision of a contingent benefit, benefit or the acceleration of the payment, funding payment or vesting of an amount or a benefit determined or occasioned, in whole or in part, by reason of the execution of this Agreement or the consummation of the transactions contemplated hereby whether alone or together with any other event; and
(8) no amounts payable under the Company Plans will fail to be deductible for federal income tax purposes by virtue of Section 280G of the Code as a result of the occurrence of the transactions contemplated by this Agreement, either alone or in combination with another eventhereby.
(c) The Company and its Subsidiaries have not entered into any employment or employment-related agreements (including change in control agreements and offer letters) to which a named individual is a party, other than those set forth on Section 3.13(a) of the Company Disclosure Letter.
(di) Each Company Benefit Plan that is a “nonqualified provides for deferred compensation plan” within the meaning of (as defined under Section 409A of the Code Code) satisfies in all material respects the applicable requirements of Sections 409A(a)(2), (3), and related Treasury Department guidance has (i4) been operated between of the Code, and has, since January 1, 2005 and December 312005, 2008, been operated in good faith compliance with Section 409A of the Code and Notice 2005-01 Sections 409A(a)(2), (3), and (ii) since January 1, 2009 (or such later date permitted under applicable guidance), been operated in compliance, and is in documentary compliance, in all material respects, with the requirements of Section 409A of the Code.
(e) Neither the Company nor any Subsidiary has a binding commitment to create any additional material Company Plan, or any plan, agreement or arrangement that would be a material Company Plan if adopted, or to modify or terminate any existing material Company Plan, except as required by applicable Law.
(f) The ESOP is an “employee stock ownership plan” within the meaning of Section 4975(e)(7) of the Code. Neither the Company nor the ESOP has, within the three year period immediately preceding the date of this Agreement, received any inquiry or notice from the IRS or any other governmental agency the effect of which is to question the qualification or status of the ESOP or any transaction entered into by the ESOP or the Company (with respect to the ESOP). The ESOP and the Company have filed all reports, returns or other documents in respect of the ESOP which are required to be filed pursuant to the applicable provisions of the Code and ERISA and the regulations thereunder. All loans entered into by the ESOP (the “ESOP Loans”) constitute “exempt loans” under Treasury Regulation Section 54.4975-7(b)(1)(iii). The securities held by the ESOP constitute “employer securities” under ERISA Section 407(d)(1) and Section 409(l) of the Code and “qualifying employer securities” under ERISA Section 407(d)(5) and Section 4975(e)(84) of the Code.
Appears in 2 contracts
Sources: Merger Agreement (American Fiber Systems, Inc.), Merger Agreement (Fibernet Telecom Group Inc\)
Benefit Plans. (a) Each employee pension benefit plan ("PENSION PLAN"), as defined in Section 3.13(a) of the Company Disclosure Letter contains a true and complete list of each material Company Plan. For purposes of this Agreement, “Company Plan” means each “employee benefit plan” (within the meaning of Section 3(33(2) of the Employee Retirement Income Security Act of 19741974 ("ERISA"), each employee welfare benefit plan ("WELFARE PLAN"), as amended (“defined in Section 3 of ERISA”)), stock purchase, stock option, severance, employment, change-in-control, fringe benefitand each deferred compensation, bonus, incentive, deferred compensationstock incentive, employee loan option, stock purchase, severance, or other employee benefit plan, agreement, programcommitment, policy or other arrangementarrangement funded or unfunded, whether written or not subject to ERISA oral (including any funding mechanism therefor now in effect or required in the future as a result of the transactions contemplated by this Agreement or otherwise"BENEFIT PLAN"), whether written or unwritten, in each case (i) which is currently maintained by the Company or any of its Subsidiaries for current ERISA Affiliates (defined in Section 3.15(o) below) or former directors, employees or consultants of to which the Company or (ii) any of its ERISA Affiliates currently contributes, or is under any current obligation to contribute, or under which the Company or any of its ERISA Affiliates has any liability, contingent or otherwise (Aincluding any withdrawal liability within the meaning of Section 4201 of ERISA) (collectively, the "COMPANY EMPLOYEE PLANS" and each, individually, a "COMPANY EMPLOYEE PLAN"), and each management, employment, severance, consulting, non-compete or similar agreement or contract between the Company or any employee, director or consultant or former employee, director or consultant of its Subsidiaries and any Company Employee pursuant to which the Company or any of its Subsidiaries has or may have any present liability, contingent or future right to benefits and otherwise (B) "COMPANY EMPLOYEE AGREEMENT"), is listed in the Company or any of its Subsidiaries has had or has any present or future liability or obligation to contributeDisclosure Schedule. With respect to each material Company Plan, the Company has furnished True and complete copies have been delivered or made available to Parent a current, accurate and complete copy thereof, including any amendments, and, to the extent applicable: Buyer of (i) any related all documents embodying or relating to each Company Employee Plan and each Company Employee Agreement, including all amendments thereto, written interpretations thereof and trust agreement or other funding instrument, agreements with respect thereto; (ii) the two most recent determination, opinion or advisory letter of the Internal Revenue Service (the “IRS”)annual actuarial valuations, if applicableany, prepared for each Company Employee Plan; (iii) any summary plan description a statement of alternative form of compliance pursuant to U.S. Department of Labor ("DOL") Regulation ss.2520.104-23, if any, filed for each Company Employee Plan which is an "employee pension benefit plan" (as defined in Section 3(2) of ERISA) for a select group of management or other material written communications by the Company or its Subsidiaries to their employees concerning the extent of the benefits provided under a Company Plan and highly compensated employees; (iv) the most recent determination letter received from the Internal Revenue Service (A"IRS"), if any, for each Company Employee Plan and related trust which is intended to satisfy the requirements of Section 401(a) Form of the Code; (v) if a Company Employee Plan is funded, the most recent annual and periodic accounting of the Company Employee Plan assets; (vi) the most recent summary plan description together with the most recent summary of material modifications, if any, required under ERISA with respect to each Company Employee Plan; and (vii) the most recent annual reports (Series 5500 and attached schedulesall schedules thereto) filed for plan years 1998 and 1999, if any, as required under ERISA in connection with each Company Employee Plan or related trust. None of the Company, nor any of its Subsidiaries or ERISA Affiliates has any plan or commitment, whether legally binding or not, to establish any new Company Employee Plan, to enter into any Company Employee Agreement or to modify or to terminate any Company Employee Plan or Company Employee Agreement (B) audited financial statementsexcept to the extent required by law or to conform any such Company Employee Plan or Company Employee Agreement to the requirements of any applicable law, and (C) actuarial valuation reportsin each case as previously disclosed to Buyer, or as required by this Agreement), nor has any intention to do any of the foregoing been communicated to Company Employees.
(b) Except as disclosed in The Company and each of its ERISA Affiliates has made on a timely basis all contributions or payments required to be made by it under the terms of the Company Employee Plans, ERISA, the Code, or other applicable laws.
(c) Each Company Employee Plan intended to qualify under Section 3.13(b401 of the Code is, and since its inception has been, so qualified and a determination letter has been issued by the IRS to the effect that each such Company Employee Plan is so qualified and that each trust forming a part of any such Company Employee Plan is exempt from tax pursuant to Section 501(a) of the Code and no circumstances exist which would adversely affect this qualification or exemption.
(d) Each Company Disclosure Letter Employee Plan (and except asany related trust or other funding instrument) has been established, individually or in the aggregate, has not hadmaintained, and would not reasonably be expected to have, a Material Adverse Effect on the Company, with respect to the Company Plans:
(1) each Company Plan has been established and administered in all material respects in accordance with its terms and in both form and operation is in compliance in all material respects with the applicable provisions of ERISA, the Code Code, and other applicable laws, statutes, orders, rules and regulations (other than adoption of any plan amendments for which the deadline has not yet expired), and all reports required to be filed with any governmental agency with respect to each Company Employee Plan have been timely filed, other applicable Lawsthan filings that are inconsequential.
(e) There is no litigation, and in arbitration, audit or investigation or administrative proceeding pending or, to the six years preceding knowledge of the Company, threatened against the Company or any of its ERISA Affiliates or, to the knowledge of the Company, any plan fiduciary by the IRS, the DOL, the Pension Benefit Guaranty Corporation ("PBGC"), or any participant or beneficiary with respect to any Company Employee Plan as of the date hereof no reportable event, as defined in Section 4043 of ERISA, no prohibited transaction, as described in Section 406 of ERISA this Agreement. No event or Section 4975 of the Code, or failure to satisfy the minimum funding standards, within the meaning of Section 302 of ERISA and 412 of the Code, transaction has occurred with respect to any Company Plan, and all contributions required to be made under Employee Plan that would result in the terms imposition of any Company Plan have been timely made;
(2) each Company Plan intended to be qualified tax under Section 401(a) Chapter 43 of Subtitle D of the Code (A) has received a favorable determination, advisory and/or opinion letter, as applicable, from the IRS that it is so qualified, (B) the trust maintained thereunder has been determined to be exempt from taxation under Section 501(a) of the Code and (C) to the Company’s knowledge, nothing has occurred since the date of such letter that could reasonably be expected to cause the loss of such qualified status of such Company Plan;
(3) there is no Action (including any investigation, audit or other administrative proceeding) by the Department of Labor, the Pension Benefit Guaranty Corporation, the IRS or any other Governmental Entity or by any plan participant or beneficiary pending, or to the knowledge of the Company, threatened, relating to Code. Neither the Company Plans, any fiduciaries thereof to which the Company could have an indemnification obligation with respect to their duties to the Company Plans or the assets of nor any of the trusts under any of the Company Plans (other than routine claims for benefits) its ERISA Affiliates nor, to the knowledge of the Company, are there facts any plan fiduciary of any Pension or circumstances that exist that could reasonably be expect to give rise Welfare Plan maintained by the Company or its Subsidiaries has engaged in any transaction in violation of Section 406(a) or (b) of ERISA for which no exemption exists under Section 408 of ERISA or any "prohibited transaction" (as defined in Section 4975(c)(1) of the Code) for which no exemption exists under Section 4975(c)(2) or 4975(d) of the Code, or is subject to any such Actions;excise tax imposed by the Code or ERISA with respect to any Company Employee Plan.
(4f) no Each Company Employee Plan is orcan be amended, within terminated or otherwise discontinued without liability to the preceding six yearsCompany, any of its Subsidiaries or any of its ERISA Affiliates.
(g) No liability under any Company Employee Plan has been funded, nor has any such obligation been satisfied with the purchase of a contract from an insurance company as to which the Company or any of its Subsidiaries has received notice that such insurance company is insolvent or is in rehabilitation or any similar proceeding.
(h) Neither the Company nor any of its ERISA Affiliates currently maintains, nor at any time in the previous six calendar years maintained or had an obligation to contribute to, any defined benefit pension plan subject to Title IV of ERISA or subject to Section 412 of the Code and neither the Company nor any Person that is a member of a “controlled group of corporations” withERISA, or is under “common control” with, or is a member of the same “affiliated service group” with the Company, in each case, as defined in Sections 414(b), (c), (m) or (o) of the Code, maintains or contributes to (or has in the past six years maintained or contributed to) a any "multiemployer plan plan" as defined in Section 3(37) of ERISA or a Title IV Plan;ERISA.
(5i) None of the Company and Company, nor any of its Subsidiaries are not subject or ERISA Affiliates (i) maintains or contributes to any material liabilityCompany Employee Plan which provides, including additional contributionsor has any liability to provide, finelife insurance, penalties medical, severance or loss of Tax Deductions as a result of the administration or operation of other employee welfare benefits to any Company Plan that is a “group health plan” (as such term is defined in Section 5000(b)(1) of the Code);
(6) no Company Plan provides welfare benefits, including death or medical benefits (whether or not insured) beyond Employee upon his retirement or termination of serviceemployment, other than coverage mandated solely except as may be required by applicable Law;
(7) none Section 4980B of the Company Plans provides for payment of an amount Code; or provision of a benefit, the increase of a payment or benefit, the payment of a contingent amount or provision of a contingent benefit, or the acceleration of the payment, funding or vesting of an amount or benefit determined or occasioned, in whole or in part, by reason of the execution of this Agreement or the consummation of the transactions contemplated hereby whether alone or together with any other event; and
(8) no amounts payable under the Company Plans will fail to be deductible for federal income tax purposes by virtue of Section 280G of the Code as a result of the occurrence of the transactions contemplated by this Agreement, either alone or in combination with another event.
(c) The Company and its Subsidiaries have not entered into any employment or employment-related agreements (including change in control agreements and offer letters) to which a named individual is a party, other than those set forth on Section 3.13(a) of the Company Disclosure Letter.
(d) Each Company Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A of the Code and related Treasury Department guidance has (i) been operated between January 1, 2005 and December 31, 2008, in good faith compliance with Section 409A of the Code and Notice 2005-01 and (ii) since January 1has ever represented, 2009 promised or contracted (whether in oral or written form) to any Company Employee (either individually or to Company Employees as a group) that such later date permitted under applicable guidance)Company Employee(s) would be provided with life insurance, been operated in compliancemedical, and is in documentary complianceseverance or other employee welfare benefits upon their retirement or termination of employment, in all material respects, with except to the requirements of extent required by Section 409A 4980B of the Code.
(ej) The execution of, and performance of the transactions contemplated in, this Agreement will not (either alone or upon the occurrence of any additional or subsequent events) (i) constitute an event under any Company Employee Plan, Company Employee Agreement, trust or loan that will or may result in any payment (whether of severance pay or otherwise), acceleration, forgiveness of indebtedness, vesting, distribution, increase in benefits or obligation to fund benefits with respect to any Company Employee, or (ii) result in the triggering or imposition of any restrictions or limitations on the right of the Company or Buyer to amend or terminate any Company Employee Plan and receive the full amount of any excess assets remaining or resulting from such amendment or termination, subject to applicable taxes.
(k) There is no commitment covering any Company Employee that, individually or in the aggregate, would be reasonably likely to give rise to the payment of any amount that would result in a material loss of tax deductions pursuant to Section 162(m) of the Code.
(l) The Company and each of its Subsidiaries (i) is in compliance with all applicable federal, state and local laws, rules and regulations (domestic and foreign) respecting employment, employment practices, labor, terms and conditions of employment and wages and hours, in each case, with respect to Company Employees; (ii) is not liable for any arrears of wages or any penalty for failure to comply with any of the foregoing; and (iii) is not liable for any past due payment to any trust or other fund or to any governmental or administrative authority, with respect to unemployment compensation benefits, social security or other benefits for Company Employees.
(m) No work stoppage or labor strike against the Company or any of its Subsidiaries by Company Employees is pending or threatened. Neither the Company nor any of its Subsidiaries (i) is involved in or threatened with any labor dispute, grievance, or litigation relating to labor matters involving any Company Employees, including violation of any federal, state or local labor, safety or employment laws (domestic or foreign), charges of unfair labor practices or discrimination complaints, other than such disputes, grievances or litigation that are inconsequential; (ii) is engaged in any unfair labor practices within the meaning of the National Labor Relations Act or the Railway Labor Act; or (iii) is presently, nor has been in the past six years, a party to, or bound by, any collective bargaining agreement or union contract with respect to Company Employees and no such agreement or contract is currently being negotiated by the Company or any of its affiliates. No Company Employees are currently represented by any labor union for purposes of collective bargaining and, to the knowledge of the Company, no activities the purpose of which is to achieve such representation of all or some of such Company Employees are threatened or ongoing.
(n) Neither the Company nor any Subsidiary of its ERISA Affiliates has a binding commitment any liability with respect to create any additional material Company Plan, or any plan, agreement program, or arrangement maintained or contributed to by any ERISA Affiliate that would be a material Company Employee Plan if adopted, or to modify or terminate any existing material Company Plan, except as required it were maintained by applicable Lawthe Company.
(fo) The ESOP For purposes of this Agreement, "ERISA AFFILIATE" means, with respect to the Company and its Subsidiaries or Buyer and it Subsidiaries, as applicable, each trade, business or entity which is a member of a "controlled group of corporations," under "common control" or an “employee stock ownership plan” "affiliated service group" with the Company and its Subsidiaries or Buyer and its Subsidiaries, as applicable, within the meaning of Sections 414(b), (c) or (m) of the Code, or required to be aggregated with the Company and its Subsidiaries or Buyer and its Subsidiaries, as applicable, under Section 414(o) of the Code, or is under "common control" with the Company and its Subsidiaries or Buyer and its Subsidiaries, as applicable, within the meaning of Section 4975(e)(7) of the Code. Neither the Company nor the ESOP has, within the three year period immediately preceding the date of this Agreement, received any inquiry or notice from the IRS or any other governmental agency the effect of which is to question the qualification or status of the ESOP or any transaction entered into by the ESOP or the Company (with respect to the ESOP4001(a)(14). The ESOP and the Company have filed all reports, returns or other documents in respect of the ESOP which are required to be filed pursuant to the applicable provisions of the Code and ERISA and the regulations thereunder. All loans entered into by the ESOP (the “ESOP Loans”) constitute “exempt loans” under Treasury Regulation Section 54.4975-7(b)(1)(iii). The securities held by the ESOP constitute “employer securities” under ERISA Section 407(d)(1) and Section 409(l) of the Code and “qualifying employer securities” under ERISA Section 407(d)(5) and Section 4975(e)(8) of the Code.
Appears in 2 contracts
Sources: Merger Agreement (Diker Charles M), Merger Agreement (Cantel Medical Corp)
Benefit Plans. (a) Section 3.13(aSchedule 3.19
(a) of the Company Disclosure Letter contains a true and complete list of each material Company Plan. For purposes of this Agreement, “Company Plan” means each “hereto lists all existing employee benefit plan” plans (within the meaning of as defined in Section 3(33 (3) of the Employee Retirement Income Security Act of 1974, as amended (“"ERISA”")), stock purchasein which Employees or former employees of Superior currently participate (the "Plans"). Seller has provided or will provide to Purchaser a summary description of each Plan.
(b) Each Plan is and has been in substantial compliance, stock optionin form and operation, severancein all material respects with all applicable laws and has been administered in all material respects in accordance with its terms. Superior has not incurred any liability with respect to a Plan including, employmentwithout limitation, change-in-controlunder ERISA (including, fringe benefitwithout limitation, bonusTitle I or Title IV of ERISA, incentiveother than liability for premiums due to the Pension Benefit Guaranty Corporation ("PBGC")), deferred compensation, employee loan the Code or other employee benefit planapplicable law, agreement, program, policy or other arrangement, whether or which has not subject to ERISA (including any funding mechanism therefor now been satisfied in effect or required in the future as a result of the transactions contemplated by this Agreement or otherwise), whether written or unwritten, in each case (i) maintained by the Company or any of its Subsidiaries for current or former directors, employees or consultants of the Company or (ii) under which (A) any employee, director or consultant or former employee, director or consultant of the Company or any of its Subsidiaries has any present or future right to benefits and (B) the Company or any of its Subsidiaries has had or has any present or future liability or obligation to contribute. With respect to each material Company Plan, the Company has furnished or made available to Parent a current, accurate and complete copy thereof, including any amendmentsfull, and, to the extent applicable: 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 imposition of any liability with respect to a Plan, including, without limitation, under ERISA (i) any related trust agreement including, without limitation, Title I or Title IV of ERISA), the Code or other funding instrument, (ii) the most recent determination, opinion or advisory letter of the Internal Revenue Service (the “IRS”), if applicable, (iii) any summary plan description or other material written communications by the Company or its Subsidiaries to their employees concerning the extent of the benefits provided under a Company Plan and (iv) the most recent (A) Form 5500 and attached schedules, (B) audited financial statements, and (C) actuarial valuation reports.
(b) Except as disclosed in Section 3.13(b) of the Company Disclosure Letter and except as, individually or in the aggregate, has not had, and would not reasonably be expected to have, a Material Adverse Effect on the Company, applicable law with respect to the Company Plans:
(1) each Company Plan has been established Plan. To the knowledge of the respective managements of Superior and administered in accordance with its terms and in compliance with the applicable provisions of ERISA, the Code and all other applicable Laws, and in the six years preceding the date hereof no reportable event, as defined in Section 4043 of ERISASeller, no event has occurred and no condition exists with respect to any Plan which is likely to 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, as described in " within the meaning of Section 406 of ERISA or Section 4975 of the Code). There is no action, suit, or failure to satisfy claim (other than routine claims for benefits in the minimum funding standards, within the meaning of Section 302 of ERISA and 412 of the Code, has occurred ordinary course) with respect to any Company PlanPlan 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, and all contributions required to be made the knowledge of Seller's management, no such investigation or audit is contemplated or under the terms of any Company Plan have been timely made;
(2) each Company consideration. Each Plan intended to be a qualified plan under Section 401(a) of the Code (A) has received is so qualified and a favorable determination, advisory and/or opinion letter, determination letter as applicable, from to qualification under Section 401(a) of the IRS that it is so qualified, (B) Code has been issued and the related trust maintained thereunder has been determined to be exempt from taxation under Section 501(a) of the Code and Code.
(Cc) Superior has no outstanding commitments to the Company’s knowledge, nothing has occurred since the date of such letter that could reasonably be expected provide or to cause the loss of such qualified status of such Company Plan;
(3) there is no Action (including to be provided any investigation, audit severance or other administrative proceeding) by the Department of Laborpost-employment benefit, the Pension Benefit Guaranty Corporationsalary continuation, the IRS termination, disability, death, retirement, health or medical benefit or similar benefit to any other Governmental Entity or by any plan participant or beneficiary pendingperson (including, or to the knowledge of the Company, threatened, relating to the Company Planswithout limitation, any fiduciaries thereof Employee or former employee) that either has not been reflected in the Superior Financial Statements or is not included in any Plan disclosed in Schedule 3.19(a). All contributions and premium payments required to which the Company could have an indemnification obligation been made or accrued under or with respect to their duties to any Plan have been timely made or accrued. Except as set forth in Schedules 3.19(c) and 5.4(e), the Company Plans or the assets of any consummation of the trusts under any of the Company Plans (other than routine claims for benefits) nor, to the knowledge of the Company, are there facts or circumstances that exist that could reasonably be expect to transactions contemplated hereby will not give rise to any such Actions;right to severance, separation or similar pay or benefits.
(4d) no Company Plan is orSuperior has never maintained, within the preceding six yearsadopted or established, has contributed or been subject required to Title IV of ERISA or subject to Section 412 of the Code and neither the Company nor any Person that is a member of a “controlled group of corporations” withcontribute to, or is under “common control” withotherwise participated or been required to participate in, or is a member of the same “affiliated service group” with the Company, in each case, as defined in Sections 414(b), "multiemployer plan" (c), (m) or (o) of the Code, maintains or contributes to (or has in the past six years maintained or contributed to) a multiemployer plan as defined in Section 3(37) of ERISA or ERISA). No amount is due as owing from Superior on account of a Title IV Plan;
(5) the Company and its Subsidiaries are not subject to any material liability, including additional contributions, fine, penalties or loss of Tax Deductions as a result of the administration or operation of any Company Plan that is a “group health "multiemployer plan” " (as such term is defined in Section 5000(b)(13(37) of the Code);
(6ERISA) no Company Plan provides welfare benefits, including death or medical benefits (whether or not insured) beyond retirement or termination on account of service, other than coverage mandated solely by applicable Law;
(7) none of the Company Plans provides for payment of an amount or provision of a benefit, the increase of a payment or benefit, the payment of a contingent amount or provision of a contingent benefit, or the acceleration of the payment, funding or vesting of an amount or benefit determined or occasioned, in whole or in part, by reason of the execution of this Agreement or the consummation of the transactions contemplated hereby whether alone or together with any other event; and
(8) no amounts payable under the Company Plans will fail to be deductible for federal income tax purposes by virtue of Section 280G of the Code as a result of the occurrence of the transactions contemplated by this Agreement, either alone or in combination with another eventwithdrawal therefrom.
(c) The Company and its Subsidiaries have not entered into any employment or employment-related agreements (including change in control agreements and offer letters) to which a named individual is a party, other than those set forth on Section 3.13(a) of the Company Disclosure Letter.
(d) Each Company Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A of the Code and related Treasury Department guidance has (i) been operated between January 1, 2005 and December 31, 2008, in good faith compliance with Section 409A of the Code and Notice 2005-01 and (ii) since January 1, 2009 (or such later date permitted under applicable guidance), been operated in compliance, and is in documentary compliance, in all material respects, with the requirements of Section 409A of the Code.
(e) Neither the Company nor any Subsidiary has a binding commitment to create any additional material Company Plan, or any plan, agreement or arrangement that would be a material Company Plan if adopted, or to modify or terminate any existing material Company Plan, except as required by applicable Law.
(f) The ESOP is an “employee stock ownership plan” within the meaning of Section 4975(e)(7) of the Code. Neither the Company nor the ESOP has, within the three year period immediately preceding the date of this Agreement, received any inquiry or notice from the IRS or any other governmental agency the effect of which is to question the qualification or status of the ESOP or any transaction entered into by the ESOP or the Company (with respect to the ESOP). The ESOP and the Company have filed all reports, returns or other documents in respect of the ESOP which are required to be filed pursuant to the applicable provisions of the Code and ERISA and the regulations thereunder. All loans entered into by the ESOP (the “ESOP Loans”) constitute “exempt loans” under Treasury Regulation Section 54.4975-7(b)(1)(iii). The securities held by the ESOP constitute “employer securities” under ERISA Section 407(d)(1) and Section 409(l) of the Code and “qualifying employer securities” under ERISA Section 407(d)(5) and Section 4975(e)(8) of the Code.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Superior Financial Corp /Ar/), Stock Purchase Agreement (Superior Financial Corp /Ar/)
Benefit Plans. (ai) Section 3.13(a) To the best of the Seller's and ARI's knowledge, no Company Disclosure Letter contains a true and complete list of each material Company Plan. For purposes of this Agreementhas ever maintained or contributed to, “Company Plan” means each “or now maintains or contributes to, any "employee pension benefit plan” " (within the meaning of as defined in Section 3(33(2) of the Employee Retirement Income Security Act of 1974, as amended (“"ERISA”")) (referred to herein as a "Pension Plan") or "employee welfare benefit plan" (as defined in Section 3(1) of ERISA) (referred to herein as a "Welfare Plan") except such Welfare Plans disclosed on Schedule 4(l)(i). Schedule 4(l)(i) also discloses any deferred compensation plan, bonus plan, incentive plan, disability or other group insurance plan, stock purchase, stock option, severance, employment, change-in-control, fringe benefit, bonus, incentive, deferred compensationoption plan, employee loan stock purchase plan, vacation plan, severance plan, sick leave plan or policy, holiday plan or policy, maternity leave plan or policy or any other employee benefit plan, agreement, program, policy or other arrangement, whether or not subject to ERISA agreement (including any funding mechanism therefor now in effect employment agreement or required in the future as a result of the transactions contemplated by this Agreement or otherwiseunion contracts), whether written arrangements or unwrittencommitments of any kind, in each case (i) maintained by the Company any Company, that is not a Pension Plan or any Welfare Plan. Seller has delivered to Buyer true, complete and correct copies of its Subsidiaries for current or former directors, employees or consultants of the Company or (ii) under which (A) each plan disclosed on Schedule 4(l)(i) (a "Company Plan") (or, in the case of any employeeunwritten Company Plans, director or consultant or former employeedescriptions thereof), director or consultant of the Company or any of its Subsidiaries has any present or future right to benefits and (B) the Company or any of its Subsidiaries has had or has any present or future liability or obligation to contribute. With most recent annual report on Form 5500 filed with the Internal Revenue Service with respect to each material Company Plan, the Company has furnished or made available to Parent a current, accurate and complete copy thereof, including Plan (if any amendments, and, to the extent applicable: (i) any related trust agreement or other funding instrumentsuch report was required by applicable law), (iiC) the most recent determinationsummary plan description for each Company Plan for which a summary plan description is required by applicable law and (4) each trust agreement and insurance or annuity contract relating to any Company Plan.
(ii) To the best of Seller's and ARI's knowledge, opinion or advisory letter each Company Plan has been administered in all material respects in accordance with its terms, except as disclosed in Schedule 4(l)(ii). To the best of Seller's and ARI's knowledge, each Company, its subsidiaries and all Company Plans are in compliance in all material respects with the applicable provisions of ERISA and the Internal Revenue Service Code of 1986, as amended (the “IRS”"Code"), if applicable, (iii) any summary plan description or other material written communications by the Company or its Subsidiaries to their employees concerning the extent of the benefits provided under a Company Plan and (iv) the most recent (A) Form 5500 and attached schedules, (B) audited financial statements, and (C) actuarial valuation reports.
(b) Except except as disclosed in Section 3.13(b) Schedule 4(l)(ii). To the best of the Company Disclosure Letter Seller's and ARI's knowledge, except asas disclosed in Schedule 4(l)(ii), individually or in the aggregateall reports, has not had, returns and would not reasonably be expected to have, a Material Adverse Effect on the Company, similar documents with respect to the Company Plans required to be filed with any governmental agency or distributed to any Company Plan participant have been duly and timely filed or distributed. To the best of Seller's and ARI's knowledge, except as disclosed in Schedule 4(l)(ii), there are no investigations by any governmental agency, termination proceedings or other claims (except claims for benefits payable in the normal operation of the Company Plans:), suits or proceedings against or involving any Company Plan or asserting any rights or claims to benefits under any Company Plan that could give rise to any material liability, and there are not any facts that could give rise to any material liability in the event of any such investigation, claim, suit or proceeding.
(1iii) To the best of Seller's and ARI's knowledge, each Company Plan has been established that is a Welfare Plan (including any Welfare Plan covering retirees or other former employees) may be amended or terminated without material liability to any Company on or at any time after the Closing Date. To the best of Seller's and administered in accordance with ARI's knowledge, the Companies and its terms and in compliance subsidiaries comply with the applicable provisions of ERISA, the Code and all other applicable Laws, and in the six years preceding the date hereof no reportable event, as defined in Section 4043 of ERISA, no prohibited transaction, as described in Section 406 of ERISA or Section 4975 of the Code, or failure to satisfy the minimum funding standards, within the meaning requirements of Section 302 of ERISA and 412 of the Code, has occurred with respect to any Company Plan, and all contributions required to be made under the terms of any Company Plan have been timely made;
(2) each Company Plan intended to be qualified under Section 401(a4980B(f) of the Code (A) has received with respect to each Company Plan that is a favorable determination, advisory and/or opinion lettergroup health plan, as applicable, from the IRS that it such term is so qualified, (B) the trust maintained thereunder has been determined to be exempt from taxation under defined in Section 501(a5000(b)(1) of the Code Code.
(iv) To the best of Seller's and (C) to the Company’s ARI's knowledge, nothing has occurred since the date of such letter that could reasonably be expected to cause the loss of such qualified status of such Company Plan;
neither Seller nor any Commonly Controlled Entity (3as defined below) there is no Action (including any investigation, audit or other administrative proceeding) by the Department of Labor, the maintains a Pension Benefit Guaranty Corporation, the IRS or any other Governmental Entity or by any plan participant or beneficiary pending, or to the knowledge of the Company, threatened, relating to the Company Plans, any fiduciaries thereof to which the Company could have an indemnification obligation with respect to their duties to the Company Plans or the assets of any of the trusts under any of the Company Plans (other than routine claims for benefits) nor, to the knowledge of the Company, are there facts or circumstances that exist that could reasonably be expect to give rise to any such Actions;
(4) no Company Plan is or, within the preceding six years, has been subject to Title IV of ERISA or subject to Section 412 of the Code Code.
(v) To the best of Seller's and neither ARI's knowledge, except as disclosed in Schedule 4(l)(v), at no time within the Company nor five years preceding the Closing Date has Seller or any Person that person or entity that, together with Seller, is treated as a member of a “controlled group of corporations” with, or is single employer under “common control” with, or is a member of the same “affiliated service group” with the Company, in each case, as defined in Sections Section 414(b), (c), (m) or (o) of the Code, maintains or contributes Code (each a "Commonly Controlled Entity") been required to contribute to any "multiemployer plan" (or has in the past six years maintained or contributed to) a multiemployer plan as defined in Section 3(374001(a)(3) of ERISA ERISA), and neither Seller nor any Commonly Controlled Entity has incurred any withdrawal liability, within the meaning of Section 4201 of ERISA, which liability has not been fully paid as of the date hereof, or announced an intention to withdraw, but not yet completed such withdrawal, from any multiemployer plan. To the best of Seller's and ARI's knowledge, except as disclosed on Schedule 4(l)(v), no action has been taken and no circumstances exist that, alone or with the passage of time, could result in either a Title IV Plan;partial or complete withdrawal from any multiemployer plan.
(5vi) Schedule 4(l)(vi) sets forth and identifies all agreements to which any Company is a party, whether oral or in writing, with present or former officers, directors or employees of, or consultants to, any Company which (A) obligate any Company to pay, on any date or dates during the remaining term of such agreement, an aggregate amount in excess of $100,000, or (B) cannot be terminated on 60 days' notice.
(vii) To the best of Seller's and ARI's knowledge, neither any Company nor any related person (within the meaning of section 9701(c)(2) of the Code) has any liability under subtitle J of the Code (Coal Industry Health Benefits).
(viii) To the best of Seller's and its Subsidiaries are not subject ARI's knowledge, except as set forth in Schedule 4(l)(viii), no employee or former employee with any Company or any beneficiary thereof will become entitled to any material liabilitybonus, including additional contributionsseverance, fine, penalties job security or loss of Tax Deductions similar benefits or any enhanced benefits as a result of the administration or operation of any Company Plan that is a “group health plan” (as such term is defined in Section 5000(b)(1) of the Code);
(6) no Company Plan provides welfare benefits, including death or medical benefits (whether or not insured) beyond retirement or termination of service, other than coverage mandated solely by applicable Law;
(7) none of the Company Plans provides for payment of an amount or provision of a benefit, the increase of a payment or benefit, the payment of a contingent amount or provision of a contingent benefit, or the acceleration of the payment, funding or vesting of an amount or benefit determined or occasioned, in whole or in part, by reason of the execution of this Agreement or the consummation of the transactions contemplated hereby whether alone or together with any other event; and
(8) no amounts payable under the Company Plans will fail to be deductible for federal income tax purposes by virtue of Section 280G of the Code as a result of the occurrence of the transactions contemplated by this Agreement, either alone or in combination with another eventhereby.
(c) The Company and its Subsidiaries have not entered into any employment or employment-related agreements (including change in control agreements and offer letters) to which a named individual is a party, other than those set forth on Section 3.13(a) of the Company Disclosure Letter.
(d) Each Company Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A of the Code and related Treasury Department guidance has (i) been operated between January 1, 2005 and December 31, 2008, in good faith compliance with Section 409A of the Code and Notice 2005-01 and (ii) since January 1, 2009 (or such later date permitted under applicable guidance), been operated in compliance, and is in documentary compliance, in all material respects, with the requirements of Section 409A of the Code.
(e) Neither the Company nor any Subsidiary has a binding commitment to create any additional material Company Plan, or any plan, agreement or arrangement that would be a material Company Plan if adopted, or to modify or terminate any existing material Company Plan, except as required by applicable Law.
(f) The ESOP is an “employee stock ownership plan” within the meaning of Section 4975(e)(7) of the Code. Neither the Company nor the ESOP has, within the three year period immediately preceding the date of this Agreement, received any inquiry or notice from the IRS or any other governmental agency the effect of which is to question the qualification or status of the ESOP or any transaction entered into by the ESOP or the Company (with respect to the ESOP). The ESOP and the Company have filed all reports, returns or other documents in respect of the ESOP which are required to be filed pursuant to the applicable provisions of the Code and ERISA and the regulations thereunder. All loans entered into by the ESOP (the “ESOP Loans”) constitute “exempt loans” under Treasury Regulation Section 54.4975-7(b)(1)(iii). The securities held by the ESOP constitute “employer securities” under ERISA Section 407(d)(1) and Section 409(l) of the Code and “qualifying employer securities” under ERISA Section 407(d)(5) and Section 4975(e)(8) of the Code.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Addington Resources Inc), Stock Purchase Agreement (Leslie Resources Inc)
Benefit Plans. (a) Section 3.13(a) of the The Company Disclosure Letter contains has provided to Parent a true and complete list of each material Company Plan. For purposes of this Agreement, “Company Plan” means each “employee benefit plan” (within the meaning of Section section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”)) whether or not subject to ERISA, each “multiemployer plan” (within the meaning of ERISA section 3(37)), and all material stock purchase, stock option, equity-based, severance, employment, change-in-control, fringe benefit, bonus, incentive, deferred compensation, employee loan or compensation and all other employee benefit planplans, agreementagreements, programprograms, policy policies or other arrangementarrangements, whether or not subject to ERISA (including any funding mechanism therefor now in effect or required in the future as a result of the transactions contemplated by this Agreement or otherwise), whether written formal or unwritteninformal, in each case (i) maintained by the Company legally binding or not, under which any of its Subsidiaries for current employee or former directors, employees or consultants employee of the Company or (ii) under which (A) any employee, director or consultant or former employee, director or consultant of the Company or any of its Subsidiaries has any present or future right to benefits and (B) or the Company or any of its Subsidiaries has had or has any present or future liability or obligation liability. All such plans, agreements, programs, policies and arrangements shall be collectively referred to contribute. as the “Company Plans.” With respect to each material Company Plan, the Company has furnished or made available to Parent a current, accurate and complete copy thereofthereof (or a description of the material terms of any unwritten Company Plan), including any amendmentsamendments thereto, and, to the extent applicable: (i) any related trust agreement or other funding instrument, (ii) the most recent determination, opinion determination or advisory letter of the Internal Revenue Service (the “IRS”), if applicable, (iii) any summary plan description or description, summary of material modifications and other material equivalent written communications by the Company or its Subsidiaries to their employees concerning the extent of the benefits provided under a such Company Plan and Plan, (iv) any material communications with Government Entities concerning such Company Plan during the three most recent years, and (v) if applicable, for the two most recent years (A) the Form 5500 and attached schedules, (B) audited financial statements, and (C) actuarial valuation reportsreports and (D) attorney’s response to an auditor’s request for information. Neither the Company nor its Subsidiaries have received any written notice or written demand with respect to any current or former employee informing the Company or such Subsidiary that it may be liable for an “employer shared responsibility payment” as contemplated by Section 4980H of the Code, the regulations issued thereunder, and the Patient Protection and Affordable Care Act of 2010, as amended, and all regulations issued thereunder and rulings issued with respect thereto (the “Affordable Care Act”).
(b) Except as disclosed in Section 3.13(b) With respect to the Company Plans, except to the extent that the inaccuracy of any of the Company Disclosure Letter and except asrepresentations set forth in this Section 4.11 would not, individually or in the aggregate, has not had, and would not reasonably be expected to have, have a Material Adverse Effect on the Company, with respect to the Company PlansEffect:
(1i) each Company Plan complies with, and at all times during the past three years has been operated in compliance with, its terms and applicable Laws;
(ii) each Company Plan subject to ERISA has been established and administered in accordance with its terms and in compliance with the applicable provisions of ERISA, ERISA and the Code and all other applicable LawsCode, and in the six years preceding the date hereof no reportable event, as defined in Section 4043 of ERISA, no prohibited transaction, as described in Section 406 of ERISA or Section 4975 of the Code, or failure to satisfy the minimum accumulated funding standardsdeficiency, within the meaning of as defined in Section 302 of ERISA and 412 of the Code, has occurred with respect to any Company Plan, and all contributions required to be made under the terms of any Company Plan have been timely made;
(2iii) each Company Plan intended to be qualified under Section 401(a) of the Code (A) has received a currently effective favorable determination, advisory and/or opinion letter, as applicable, from the IRS that it is so qualified, (B) the trust maintained thereunder has been determined to be exempt from taxation under Section 501(a) of the Code qualified and (C) to the Company’s knowledge, nothing has occurred since the date of such letter that could would reasonably be expected to cause the loss of such qualified status of such Company Plan;
(3iv) there is no Action (including any investigation, audit or other administrative proceeding) by the Department of Labor, the Pension Benefit Guaranty CorporationCorporation (the “PBGC”), the IRS or any other Governmental Entity or by any plan participant or beneficiary pending, or to the knowledge of the Company, threatened, relating to the Company Plans, any fiduciaries thereof to which the Company could have an indemnification obligation with respect to their duties to the Company Plans or the assets of any of the trusts under any of the Company Plans (other than routine claims for benefits) nor, to the knowledge of the Company, nor are there facts or circumstances that exist that could would reasonably be expect expected to give rise to any such Actions;
(4v) no Company Plan is or, within the preceding six years, has been subject to Title IV of ERISA or subject to Section 412 of the Code and neither the Code;
(vi) no Company nor any Person that Plan is a member “multiemployer plan” (within the meaning of a “controlled group of corporations” with, or is under “common control” with, or is a member of the same “affiliated service group” with the Company, in each case, as defined in Sections 414(b), (c), (m) or (o) of the Code, maintains or contributes to (or has in the past six years maintained or contributed to) a multiemployer plan as defined in Section 3(37) of ERISA or a Title IV PlanERISA;
(5vii) the Company and its Subsidiaries are do not subject to any material liability, including additional contributions, fine, penalties or loss of Tax Deductions as a result of the administration or operation of maintain any Company Plan that is a “group health plan” (as such term is defined in Section 5000(b)(1) of the Code);) that has not been administered and operated in all respects in compliance with the applicable requirements of Section 601 of ERISA and Section 4980B of the Code, similar state Laws and the Affordable Care Act, and the Company and its Subsidiaries are not subject to any material liability, including additional contributions, fines, penalties or loss of tax deduction as a result of such administration and operation; and
(6) no Company Plan provides welfare benefits, including death or medical benefits (whether or not insured) beyond retirement or termination of service, other than coverage mandated solely by applicable Law;
(7viii) none of the Company Plans provides for payment of an amount or provision of a benefit, the increase of a payment or benefitbenefit amount, the payment of a contingent amount or provision of a contingent benefit, benefit or the acceleration of the payment, funding payment or vesting of an amount or a benefit determined or occasioned, in whole or in part, by reason of the execution of this Agreement or the consummation of the transactions Offer or Merger contemplated hereby.
(c) Neither the execution and delivery of this Agreement and any related documents nor the consummation of the Offer or Merger contemplated hereby whether alone or together with any other event; and
(8) no amounts payable under the Company Plans will fail to be deductible for federal income tax purposes by virtue of Section 280G of the Code as a result of the occurrence of the transactions contemplated by this Agreementwill, either alone or in combination with another any other event.
, (ci) The require the Company and its Subsidiaries have not entered into or any employment Subsidiary to place in trust or employment-related agreements otherwise set aside any amounts in respect of any Company Plan; or (including change ii) result in control agreements and offer letters) to which a named individual is a party, other than those set forth on any payments or benefits for any current or former Company Employee under any Company Plan that would be considered “excess parachute payments” under Section 3.13(a) 280G of the Company Disclosure LetterCode.
(d) None of the Company, any of its Subsidiaries or any entity within the same “controlled group” as the Company or any of its Subsidiaries within the meaning of Section 4001(a)(14) of ERISA has, at any time during the past six years, contributed or been obligated to contribute to (i) a multiemployer plan, as defined in Section 4001(a)(3) of ERISA, (ii) a multiple employer plan, as defined in Section 413(c) of the Code, (iii) a multiple employer welfare arrangement, as defined in Section 3(40) of ERISA, or (iv) a plan subject to Title IV of ERISA.
(e) No event has occurred, and no condition or circumstance exists, that could reasonably be expected to subject the Company, any Subsidiary of the Company or any Company Plan to any material penalties or excise taxes under Sections 4980D, 4980H, or 4980I of the Code or under any provision of the Affordable Care Act.
(f) Neither the Company nor any Subsidiary of the Company is required to provide any gross-up, make-whole or other additional payment with respect to taxes, interests or penalties imposed under any tax provisions, including Section 409A or Section 4999 of the Code.
(g) Each Company Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A(d)(1) of the Code (a “Nonqualified Deferred Compensation Plan”) subject to Section 409A of the Code and related Treasury Department guidance has (i) been operated between January 1, 2005 and December 31, 2008, in good faith compliance with Section 409A of the Code since June 30, 2013, based upon a good faith, reasonable interpretation of (A) Section 409A of the Code and (B) IRS Notice 2005-01 1 or any other applicable IRS guidance, in each case as modified by IRS Notice 2007-86 (clauses (A) and (ii) since January 1, 2009 (or such later date permitted under applicable guidanceB), been operated in compliancetogether, and is in documentary compliance, in all material respects, with the requirements “409A Authorities”). No Company Plan that would be a Nonqualified Deferred Compensation Plan subject to Section 409A of the Code but for the effective date provisions that are applicable to Section 409A of the Code.
, as set forth in Section 885(d) of the American Jobs Creation Act of 2004, as amended (e) Neither the Company nor any Subsidiary “AJCA”), has a binding commitment to create any additional material Company Plan, or any plan, agreement or arrangement that would be a material Company Plan if adopted, or to modify or terminate any existing material Company Plan, except as required by applicable Law.
(f) The ESOP is an been “employee stock ownership planmaterially modified” within the meaning of Section 4975(e)(7885(d)(2)(B) of the Code. Neither AJCA after October 3, 2004, based upon a good faith reasonable interpretation of the AJCA and the 409A Authorities and has not been operated in compliance with the 409A Authorities.
(h) There has not been since June 30, 2013, and there is not pending or, to the knowledge of the Company, threatened any proceeding or inquiry asserted or instituted against the Company nor the ESOP has, within the three year period immediately preceding the date of this Agreement, received any inquiry or notice from the IRS or any other governmental agency Subsidiary by any Governmental Entity relating to the effect legal status or classification of which is to question an individual classified by the qualification or status of the ESOP Company or any transaction entered into by the ESOP Subsidiary as a non-employee (such as an independent contractor, a leased employee, a consultant or the Company (with respect to the ESOPspecial consultant). The ESOP and the Company have filed all reports, returns or other documents in respect of the ESOP which are required to be filed pursuant to the applicable provisions of the Code and ERISA and the regulations thereunder. All loans entered into by the ESOP (the “ESOP Loans”) constitute “exempt loans” under Treasury Regulation Section 54.4975-7(b)(1)(iii). The securities held by the ESOP constitute “employer securities” under ERISA Section 407(d)(1) and Section 409(l) of the Code and “qualifying employer securities” under ERISA Section 407(d)(5) and Section 4975(e)(8) of the Code.
Appears in 2 contracts
Sources: Merger Agreement (Omron Corp /Fi), Merger Agreement (Adept Technology Inc)
Benefit Plans. (a) Section 3.13(a) 4.10 of the Company Disclosure Letter Schedule contains a true and complete list of each material Company Plan. For purposes of this Agreement, “Company Plan” means each “employee benefit plan” (within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”)), stock purchase, stock option, restricted stock, severance, employment, change-in-control, fringe benefit, bonus, incentive, deferred compensation, employee loan or compensation and all other employee benefit planplans, agreementagreements, programprograms, policy policies or other arrangementarrangements, other than a Multiemployer Plan, whether written or oral and whether or not subject to ERISA (including any funding mechanism therefor now in effect or required in the future as a result of the transactions contemplated by this Agreement or otherwise)ERISA, whether written or unwritten, in each case (i) which is maintained by the Company, to which the Company is required to contribute or with respect to which the Company or any of its Subsidiaries for current or former directors, employees or consultants of the Company or (ii) under which (A) any employee, director or consultant or former employee, director or consultant of the Company or any of its Subsidiaries ERISA Affiliates has any present or future right liability. All such plans, agreements, programs, policies and arrangements shall be collectively referred to benefits and as the “Company Plans.”
(Bb) the Company or any of its Subsidiaries has had or has any present or future liability or obligation to contribute. With respect to each material Company Plan, the Company has furnished or made available to Parent a current, true and accurate and complete copy thereof, including any amendments, thereof and, to the extent applicable: (i) any related the current trust agreement or other funding instrument, ; (ii) the most recent determination, IRS determination or opinion or advisory letter of the Internal Revenue Service (the “IRS”), if applicable, letter; (iii) any the most recent summary plan description or other material written communications by the Company or its Subsidiaries to their employees concerning the extent of the benefits provided under a Company Plan and description; (iv) the most recent (A) Form 5500 and attached schedules, ; (Bv) audited financial statements, the most recent actuarial valuation report; and (Cvi) actuarial valuation reportscopies of nondiscrimination tests for the past two years.
(bc) Except as disclosed in Section 3.13(b) of the Company Disclosure Letter and except as, individually or in the aggregate, has not had, and would not reasonably be expected to have, a Material Adverse Effect on the Company, with respect to the Company Plans:
(1) each Each Company Plan has been established and complies and has been administered in form and operation in all material respects in accordance with its terms and in compliance with the applicable provisions of ERISALegal Requirements including, the Code without limitation, ERISA and all other applicable Laws, and in the six years preceding the date hereof no reportable event, as defined in Section 4043 of ERISA, no prohibited transaction, as described in Section 406 of ERISA or Section 4975 of the Code, or failure to satisfy the minimum funding standards, within the meaning of Section 302 of ERISA and 412 of the Code, has occurred with respect to any Company Plan, and all contributions required to be made under the terms of any . Each Company Plan have been timely made;
(2) each Company Plan which is intended to be qualified under Section 401(a) of the Code (A) has received a favorable determination, advisory and/or determination letter or opinion letter, as applicable, letter from the IRS that it is so qualified, (Bas to its qualification under Section 401(a) of the Code and the tax-exempt status of any trust maintained thereunder has been determined to be exempt from taxation which forms a part of such plan under Section 501(a) of the Code Code, and (C) to the Company’s knowledge, nothing has occurred since Knowledge of the date of such letter Company there are no facts and circumstances that could reasonably be expected to cause result in the loss revocation of such qualified status of such Company Plan;
(3) there is no Action (including any investigation, audit or other administrative proceeding) by the Department of Labor, the Pension Benefit Guaranty Corporation, the IRS or any other Governmental Entity or by any plan participant or beneficiary pending, or letter except as may be self-corrected pursuant to Revenue Procedure 2003-44 without material liability to the knowledge Company. To the Knowledge of the Company, threatened, relating no event has occurred and no condition exists that could reasonably be expected to subject the Company Plansor any of its ERISA Affiliates to any material tax, any fiduciaries thereof to which fine, Lien, penalty or other liability imposed by ERISA or the Company could have an indemnification obligation Code. No non-exempt “prohibited transaction” (as such term is defined in ERISA Section 406 and Section 4975 of the Code) has occurred with respect to their duties any Company Plan. Except as listed on Section 4.10 of the Company Disclosure Schedule, no Company Plan provides post-retirement or post-termination health benefits and none of the Company or any of its ERISA Affiliates has any obligations to provide any post-retirement health benefits, except, in either case, to the extent required by Section 4980B of the Code, Part 6 of Title 1 of ERISA or similar provisions of applicable state law.
(d) With respect to any Company Plans Plan (or the assets of any of the trusts under any of the Company Plans thereof), (i) no actions, suits or claims (other than routine claims for benefits) norare pending or threatened in writing, (ii) to the knowledge Knowledge of the Company, are there no facts or circumstances that exist that could reasonably be expect expected to give rise to any such Actions;actions, suits or claims (other than routine claims for benefits), (iii) none of the assets of any Company Plan are invested in employer securities or employer real property and (iv) the Company has not received notice that any governmental investigation is pending or threatened.
(4e) no None of the Company Plan is or, within the preceding six years, has been Plans are subject to Title IV of ERISA or ERISA. With respect to each Company Plan that is subject to Title IV of ERISA, (i) no steps have been taken by the Company or any of its ERISA Affiliates to terminate any such Company Plan, (ii) the material facts underlying the most recently completed actuarial valuation for such Company Plan remain true and correct as of the date hereof, (iii) all required contributions have been made to such Company Plan in accordance with minimum funding standards of Section 412 of the Code and neither (iv) no proceedings to terminate such Company Plan (or to appoint a trustee to administer any such Company Plan) have been instituted by the PBGC pursuant to Section 4042 of ERISA and no facts exist that could reasonably be expected to result in the institution of such proceedings.
(f) Neither the Company nor any Person that is a member of a “controlled group of corporations” with, its ERISA Affiliates has any liability under or is under “common control” with, or is a member with respect to any Multiemployer Plan.
(g) The consummation of the same “affiliated transaction contemplated by this Agreement will neither entitle any current or former employee or other service group” with the Company, in each case, as defined in Sections 414(b), (c), (m) or (o) provider of the Code, maintains Company or contributes any Company Subsidiary to severance benefits or any other payment (or has in the past six years maintained or contributed toincluding golden parachute) a multiemployer plan as defined in Section 3(37) of ERISA or a Title IV Plan;
(5) the Company and its Subsidiaries are not subject to any material liability, including additional contributions, fine, penalties or loss of Tax Deductions as a result of the administration or operation of under any Company Plan that is a “group health plan” (as such term is defined in Section 5000(b)(1) of the Code);
(6) no Company Plan provides welfare benefits, including death or medical benefits (whether or not insured) beyond retirement or termination of service, other than coverage mandated solely by applicable Law;
(7) none of the Company Plans provides for payment of an amount or provision of a benefit, the increase of a payment or benefit, the payment of a contingent amount or provision of a contingent benefit, or the acceleration of the payment, funding or vesting of an amount or benefit determined or occasioned, in whole or in part, by reason of the execution of this Agreement or the consummation of the transactions contemplated hereby whether alone or together with nor cause any other event; and
(8) no amounts payable under the any Company Plans will Plan to fail to be deductible for federal income tax purposes by virtue of Section 280G of the Code as a result of the occurrence of the transactions contemplated by this Agreement, either alone or in combination with another eventCode.
(ch) The All Company and Plans that are maintained by the Company or its Subsidiaries have not entered into any employment or employment-related agreements (including change in control agreements and offer letters) to which a named individual is a party, other than those set forth on Section 3.13(a) outside of the United States primarily for the benefit of employees of the Company Disclosure Letteror any of its Subsidiaries working outside of the United States comply in all material respects with applicable Legal Requirements. To the extent that any such Company Plan is, or is required to be, funded, the fair market value of plan assets exceeds the present value of benefit obligations under such Company Plan.
(di) Each With respect to each of the Company Plans, all contributions or premium payments due and payable on or before the Closing Date have been timely made, and to the extent not presently payable appropriate reserves have been established for the payment and properly accrued in accordance with customary accounting practices.
(j) No Company Plan that is a “nonqualified non-qualified deferred compensation plan” plan subject to Section 409A of the Code (“Section 409A”) has been materially modified (within the meaning of Section 409A of the Code ) on or after October 3, 2004 and related Treasury Department guidance has (i) all such non-qualified deferred compensation plans have been operated between January 1, 2005 and December 31, 2008, administered in good faith compliance with Section 409A of the Code and Notice 2005-01 and (ii) since applicable guidance with respect thereto from the period beginning January 1, 2009 (or such later 2005 through the date permitted under applicable guidance), been operated in compliance, and is in documentary compliance, in all material respects, with the requirements of Section 409A of the Codehereof.
(ek) Neither The actions described on Section 1.01 of the Company nor any Subsidiary has a binding commitment Disclosure Schedule have been taken prior to create any additional material Company Plan, or any plan, agreement or arrangement that would be a material Company Plan if adopted, or to modify or terminate any existing material Company Plan, except as required by applicable Law.
(f) The ESOP is an “employee stock ownership plan” within the meaning of Section 4975(e)(7) of the Code. Neither the Company nor the ESOP has, within the three year period immediately preceding the date of this Agreement, received any inquiry or notice from the IRS or any other governmental agency the effect of which is to question the qualification or status of the ESOP or any transaction entered into by the ESOP or the Company (with respect to the ESOP). The ESOP and the Company have filed all reports, returns or other documents in respect of the ESOP which are required to be filed pursuant to the applicable provisions of the Code and ERISA and the regulations thereunder. All loans entered into by the ESOP (the “ESOP Loans”) constitute “exempt loans” under Treasury Regulation Section 54.4975-7(b)(1)(iii). The securities held by the ESOP constitute “employer securities” under ERISA Section 407(d)(1) and Section 409(l) of the Code and “qualifying employer securities” under ERISA Section 407(d)(5) and Section 4975(e)(8) of the Codehereof.
Appears in 2 contracts
Sources: Merger Agreement (Carters Inc), Merger Agreement (Oshkosh B Gosh Inc)
Benefit Plans. (ai) Section 3.13(a4.1(j)(i) of the Company Disclosure Letter contains sets forth a true and complete list of each material Company Plan. For purposes of this AgreementBenefit Plan or, “Company Plan” means each “employee benefit plan” (within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”)), stock purchase, stock option, severance, employment, change-in-control, fringe benefit, bonus, incentive, deferred compensation, employee loan or other employee benefit plan, agreement, program, policy or other arrangement, whether or not subject to ERISA (including any funding mechanism therefor now in effect or required in the future case of employment or offer letters or agreements, forms thereof that are substantially the same as a result of the transactions contemplated by this Agreement or otherwise), whether written or unwritten, in each case (i) maintained by the Company or any of its Subsidiaries for current or former directors, employees or consultants of the Company or (ii) under which (A) any employee, director or consultant or former employee, director or consultant of the Company or any of its Subsidiaries has any present or future right to benefits and (B) the Company or any of its Subsidiaries has had or has any present or future liability or obligation to contributeindividual agreements. With respect to each material Company Benefit Plan, the Company has furnished or made available available, upon request, to Parent a current, complete and accurate and complete copy thereof, including any amendments, copies of (A) such Company Benefit Plan and, to the extent applicable: , summary plan description thereof, (iB) any related trust agreement each trust, insurance, annuity or other funding instrumentcontract related thereto, (iiC) the most recent determinationaudited financial statements and actuarial or other valuation reports prepared with respect thereto, opinion or advisory letter of (D) the most recent annual report on Form 5500 required to be filed with the Internal Revenue Service (the “IRS”)) with respect thereto and (E) the most recently received IRS determination letter or opinion, if applicable, (iii) any summary plan description or other material written communications by the Company or its Subsidiaries to their employees concerning the extent of the benefits provided under a Company Plan and (iv) the most recent (A) Form 5500 and attached schedules, (B) audited financial statements, and (C) actuarial valuation reports.
(bii) Except as disclosed in Section 3.13(b) of the Company Disclosure Letter and except as, individually or in the aggregate, has not had, and would not reasonably be expected to have, have a Material Adverse Effect on the Company, with respect to (A) each of the Company Plans:
(1) each Company Plan Benefit Plans has been established operated and administered in accordance compliance with its terms and in compliance accordance with the applicable provisions of Applicable Laws, including ERISA, the Code and all other applicable Laws, and in each case the six years preceding the date hereof no reportable event, as defined in Section 4043 of ERISA, no prohibited transaction, as described in Section 406 of ERISA or Section 4975 of the Code, or failure to satisfy the minimum funding standards, within the meaning of Section 302 of ERISA and 412 of the Code, has occurred with respect to any Company Plan, and all contributions required to be made under the terms of any Company Plan have been timely made;
(2) each Company Plan intended to be qualified under Section 401(a) of the Code (A) has received a favorable determination, advisory and/or opinion letter, as applicable, from the IRS that it is so qualified, regulations thereunder; (B) the trust maintained thereunder has been determined to be exempt from taxation under Section 501(a) of the Code and (C) to the Company’s knowledge, nothing has occurred since the date of such letter that could reasonably be expected to cause the loss of such qualified status of such Company Plan;
(3) there is no Action (including any investigation, audit or other administrative proceeding) by the Department of Labor, the Pension Benefit Guaranty Corporation, the IRS or any other Governmental Entity or by any plan participant or beneficiary pending, or to the knowledge of the Company, threatened, relating to the Company Plans, any fiduciaries thereof to which the Company could have an indemnification obligation with respect to their duties to the Company Plans or the assets of any of the trusts under any of the Company Plans (other than routine claims for benefits) nor, to the knowledge of the Company, are there facts or circumstances that exist that could reasonably be expect to give rise to any such Actions;
(4) no Company Plan is or, within the preceding six years, has been subject to Title IV of ERISA or subject to Section 412 of the Code and neither the Company nor any Person that is a member of a “controlled group of corporations” with, or is under “common control” with, or is a member of the same “affiliated service group” with the Company, in each case, as defined in Sections 414(b), (c), (m) or (o) of the Code, maintains or contributes to (or has in the past six years maintained or contributed to) a multiemployer plan as defined in Section 3(37) of ERISA or a Title IV Plan;
(5) the Company and its Subsidiaries are not subject to any material liability, including additional contributions, fine, penalties or loss of Tax Deductions as a result of the administration or operation of any Company Plan that is a “group health plan” (as such term is defined in Section 5000(b)(1) of the Code);
(6) no Company Benefit Plan provides welfare benefits, including death or medical benefits (whether or not insured) ), with respect to current or former employees or directors of the Company or its subsidiaries beyond their retirement or other termination of service, other than coverage mandated solely by applicable Law;the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”), or comparable U.S. state or foreign law; (C) all contributions or other amounts payable by the Company or its subsidiaries as of the Effective Time pursuant to each Company Benefit Plan in respect of current or prior plan years have been timely paid or, to the extent not yet due, have been accrued in accordance with GAAP; (D) neither the Company nor any of its subsidiaries has engaged in a transaction in connection with which the Company or its subsidiaries could be subject to either a civil penalty assessed pursuant to Section 409 or 502(i) of ERISA or a tax imposed pursuant to Section 4975 or 4976 of the Code; and (E) there are no pending, or to the knowledge of the Company, threatened in writing or anticipated claims, actions, investigations or audits (other than routine claims for benefits) by, on behalf of or against any of the Company Benefit Plans or any trusts related thereto.
(7iii) Except as set forth on Section 4.1(j)(iii) of the Company Disclosure Letter, none of the Company, any of its subsidiaries or any of their respective ERISA Affiliates contributes to or is obligated to contribute to, or within the six years preceding the date of this Agreement contributed to, or was obligated to contribute to, a Multiemployer Plan or Multiple Employer Plan, and none of the Company, any of its subsidiaries or any of their respective ERISA Affiliates has, within the preceding six years, withdrawn in a complete or partial withdrawal from any Multiemployer Plan or incurred any liability under Section 4202 of ERISA.
(iv) Except as, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect on the Company, each of the Company Benefit Plans intended to be “qualified” within the meaning of Section 401(a) of the Code, (A) is so qualified and there are no existing circumstances or any events that have occurred that would reasonably be expected to adversely affect the qualified status of any such plan and (B) has received a favorable determination letter or opinion letter as to its qualification.
(v) Section 4.1(j)(v) of the Company Disclosure Letter sets forth each Company Benefit Plan that is subject to Section 302 or Title IV of ERISA or Section 412, 430 or 4971 of the Code (each, a “Company Title IV Plan”). With respect to each Company Title IV Plan, except for matters that, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect on the Company, (A) there does not exist any accumulated funding deficiency within the meaning of Section 412 of the Code or Section 302 of ERISA, whether or not waived, (B) no such Company Title IV Plan is currently in “at risk” status within the meaning of Section 430 of the Code or Section 303(i) of ERISA, (C) no reportable event within the meaning of Section 4043(c) of ERISA for which the 30-day notice requirement has not been waived has occurred, (D) none of the Company, any of its subsidiaries or any of their respective ERISA Affiliates has engaged in any transaction described in Section 4069, 4204(a) or 4212(c) of ERISA, (E) all premiums to the Pension Benefit Guaranty Corporation (the “PBGC”) have been timely paid in full, (F) no liability (other than for premiums to the PBGC) has been or, to the knowledge of the Company, is expected to be incurred by the Company Plans provides or any of its subsidiaries and (G) the PBGC has not instituted proceedings to terminate any such Company Title IV Plan. Except for payment matters that, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect on the Company, there does not now exist, nor do any circumstances exist that could result in, any Controlled Group Liability that would be a liability following the Closing of an amount the Company, any of its subsidiaries or provision any of a benefittheir respective ERISA Affiliates. Since January 1, the increase of a payment 2019, there has not been any material change in any actuarial or benefit, the payment of a contingent amount or provision of a contingent benefitother assumption used to calculate funding obligations with respect to any Company Title IV Plan, or any material change in the manner in which contributions to any Company Title IV Plan are made or the basis on which such contributions are determined.
(vi) Neither the execution and delivery of this Agreement nor the consummation of the Transactions (either alone or in conjunction with any other event) will (A) result in any payment (including severance, unemployment compensation, “excess parachute payment” (within the meaning of Section 280G of the Code), forgiveness of indebtedness or otherwise) becoming due to any current or former director or any employee of the Company or its subsidiaries under any Company Benefit Plan or otherwise, (B) increase any benefits otherwise payable under any Company Benefit Plan or (C) result in any acceleration of the time of payment, funding or vesting of an amount or benefit determined or occasioned, in whole or in part, by reason of the execution of this Agreement or the consummation of the transactions contemplated hereby whether alone or together with any other event; andsuch benefits.
(8) no amounts payable under vii) No person is entitled to receive any additional payment (including any Tax gross-up or other payment) from the Company Plans will fail to be deductible for federal income tax purposes by virtue or any of Section 280G of the Code its subsidiaries as a result of the occurrence imposition of the transactions contemplated excise Taxes required by this Agreement, either alone Section 4999 or in combination with another event.
(c) The Company and its Subsidiaries have not entered into any employment or employment-related agreements (including change in control agreements and offer letters) to which a named individual is a party, other than those set forth on Section 3.13(a) of the Company Disclosure Letter.
(d) Each Company Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A 4985 of the Code and related Treasury Department guidance has (i) been operated between January 1, 2005 and December 31, 2008, in good faith compliance with or any Taxes required by Section 409A of the Code and Notice 2005-01 and (ii) since January 1, 2009 (or such later date permitted under applicable guidance), been operated in compliance, and is in documentary compliance, in all material respects, with the requirements of Section 409A 457A of the Code.
(eviii) Neither Except as, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect on the Company, all the Company nor Benefit Plans subject to the laws of any Subsidiary has a binding commitment to create any additional material Company Plan, or any plan, agreement or arrangement that would be a material Company Plan if adopted, or to modify or terminate any existing material Company Plan, except as required by applicable Law.
(f) The ESOP is an “employee stock ownership plan” within the meaning of Section 4975(e)(7) jurisdiction outside of the Code. Neither the Company nor the ESOP hasUnited States (A) have been maintained in accordance with all applicable requirements, within the three year period immediately preceding the date of this Agreement(B) that are intended to qualify for special tax treatment meet all requirements for such treatment, received any inquiry or notice from the IRS or any other governmental agency the effect of which is to question the qualification or status of the ESOP or any transaction entered into by the ESOP or the Company and (with respect to the ESOP). The ESOP and the Company have filed all reports, returns or other documents in respect of the ESOP which C) that are required intended to be filed pursuant to the applicable provisions of the Code and ERISA and the regulations thereunder. All loans entered into by the ESOP (the “ESOP Loans”) constitute “exempt loans” under Treasury Regulation Section 54.4975funded and/or book-7(b)(1)(iii). The securities held by the ESOP constitute “employer securities” under ERISA Section 407(d)(1) and Section 409(l) of the Code and “qualifying employer securities” under ERISA Section 407(d)(5) and Section 4975(e)(8) of the Codereserved are fully funded and/or book reserved, as appropriate, based upon reasonable actuarial assumptions.
Appears in 2 contracts
Sources: Merger Agreement (IHS Markit Ltd.), Merger Agreement (S&P Global Inc.)
Benefit Plans. (a) Section 3.13(aSet forth on Schedule 5.19(a) of the Company Disclosure Letter contains is a true and complete list of each material Foreign Plan of a Target Company Plan. For purposes of this Agreementand any other agreement, “Company Plan” means each “employee benefit practice, custom, arrangement, plan” , policy or program (within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”)), stock purchase, stock option, severance, including any employment, change-in-control, fringe benefitconsulting, bonus, incentivecommission, incentive or deferred compensation, employee loan loan, note or other employee benefit pledge agreement, equity or equity-based compensation, severance, termination, retention, retirement, supplemental retirement, profit sharing, change in control, fringe benefits vacation, sick, insurance, pension (including pension funds, managers’ insurance or similar funds, education fund (‘keren hishtalmut’), medical, welfare, fringe or similar plan, agreementpolicy, program, policy agreement or other arrangement) providing compensation or other benefits or remuneration to any current or former director, officer, employee or other service provider, which is maintained, sponsored or contributed to by a Target Company or under which a Target Company has or may have any obligation or liability, direct or indirect, contingent or otherwise, whether or not in writing and whether or not funded (each, a “Company Benefit Plan”). No Target Company has ever maintained or contributed to (or had an obligation to contribute to) or has any Liability under any Benefit Plan, whether or not subject to ERISA ERISA, which is not a Foreign Plan.
(including any funding mechanism therefor now in effect or required in the future as a result of the transactions contemplated by this Agreement or otherwise), whether written or unwritten, in each case (ib) maintained by the Company or any of its Subsidiaries for current or former directors, employees or consultants of the Company or (ii) under which (A) any employee, director or consultant or former employee, director or consultant of the Company or any of its Subsidiaries has any present or future right to benefits and (B) the Company or any of its Subsidiaries has had or has any present or future liability or obligation to contribute. With respect to each material Company Benefit Plan, the Company has furnished or made available to Parent a current, SPAC accurate and complete copy thereofcopies, if applicable, of: (i) all plan documents and related trust agreements or annuity Contracts (including any amendments, andmodifications or supplements thereto), to the extent applicable: (i) and written descriptions of any related trust agreement or other funding instrument, Company Benefit Plans which are not in writing; (ii) the most recent determination, opinion or advisory letter annual and periodic accounting of the Internal Revenue Service (the “IRS”), if applicable, plan assets; (iii) any summary plan description or other material written communications by the Company or its Subsidiaries to their employees concerning the extent of the benefits provided under a Company Plan most recent actuarial valuation; and (iv) the most recent (A) Form 5500 and attached schedules, (B) audited financial statements, and (C) actuarial valuation reportsall communications with any Governmental Authority concerning any matter that is still pending or for which a Target Company has any outstanding Liability or obligation.
(bc) Except as disclosed in Section 3.13(b) of the Company Disclosure Letter and except as, individually or in the aggregate, has not had, and would not reasonably be expected to have, a Material Adverse Effect on the Company, with With respect to the Company Plans:
(1) each Company Benefit Plan: (i) such Company Benefit Plan has been established administered and administered enforced in all material respects in accordance with its terms and in compliance with the applicable provisions requirements of ERISA, the Code and all other applicable Laws, and in the six years preceding the date hereof no reportable event, as defined in Section 4043 of ERISA, no prohibited transaction, as described in Section 406 of ERISA or Section 4975 of the Code, or failure to satisfy the minimum funding standards, within the meaning of Section 302 of ERISA and 412 of the Code, has occurred with respect to any Company Plan, and all contributions required to be made under the terms of any Company Plan have been timely made;
(2) each Company Plan intended to be qualified under Section 401(a) of the Code (A) has received a favorable determination, advisory and/or opinion letter, as applicable, from the IRS that it is so qualified, (B) the trust maintained thereunder has been determined to be exempt from taxation under Section 501(amaintained, where required, in good standing with applicable regulatory authorities and Governmental Authorities; (ii) no breach of the Code and fiduciary duty has occurred; (Ciii) to the Company’s knowledge, nothing has occurred since the date of such letter that could reasonably be expected to cause the loss of such qualified status of such Company Plan;
(3) there is no Action (including any investigation, audit or other administrative proceeding) by the Department of Labor, the Pension Benefit Guaranty Corporation, the IRS or any other Governmental Entity or by any plan participant or beneficiary is pending, or to the knowledge of the Company’s Knowledge, threatened, relating to the Company Plans, any fiduciaries thereof to which the Company could have an indemnification obligation with respect to their duties to the Company Plans or the assets of any of the trusts under any of the Company Plans threatened (other than routine claims for benefitsbenefits arising in the ordinary course of administration); (iv) norall contributions, premiums and other payments (including any special contribution, interest or penalty) required to be made with respect to a Company Benefit have been timely made; (v) all benefits accrued under any unfunded Company Benefit Plan has been paid, accrued, or otherwise adequately reserved in accordance with IFRS and are reflected on the knowledge of the Company, are there facts or circumstances that exist that could reasonably be expect to give rise to any such Actions;
Company Financials; and (4vi) no Company Benefit Plan is provides for retroactive increases in contributions, premiums or other payments in relation thereto. No Target Company has incurred any Liability in connection with the termination of, or withdrawal from, any Company Benefit Plan, other than severance obligations owed to Israeli employees of the Company pursuant to the Israeli Severance Pay Law, 5723-1963, if any.
(d) No Target Company has ever sponsored, maintained, contributed to or been required to maintain or contribute to, and does not otherwise have any Liability (including as a result of its relationship with any other Person that would be or, within the preceding six yearsat any relevant time, has would have been subject to Title IV of ERISA or subject to considered a single employer with any Target Company under Section 412 of the Code and neither the Company nor any Person that is a member of a “controlled group of corporations” with, or is under “common control” with, or is a member of the same “affiliated service group” with the Company, in each case, as defined in Sections 414(b), (c), (m) or (o) of the CodeCode or ERISA), maintains or contributes with respect to (or has in the past six years maintained or contributed to) a multiemployer plan as defined in Section 3(37) subject to Title IV of ERISA or a Title IV Plan;
(5) the Company and its Subsidiaries are not subject to any material liabilityCode Section 412, including additional contributionsany “single employer” defined benefit plan or any “multiemployer plan,” each within the meaning of Section 4001 of ERISA. No Target Company maintains, fine, penalties or loss of Tax Deductions as a result of the administration or operation of any Company Plan that is a “group health plan” (as such term is defined in Section 5000(b)(1) of the Code);
(6) no Company Plan provides welfare benefits, including death or medical benefits (whether or not insured) beyond retirement or termination of service, other than coverage mandated solely by applicable Law;
(7) none of the Company Plans provides for payment of an amount or provision of a benefit, the increase of a payment or benefit, the payment of a contingent amount or provision of a contingent benefitcontributes to, or the acceleration of the payment, funding or vesting of an amount or benefit determined or occasioned, participates in whole or in part, by reason of the execution of this Agreement or the consummation of the transactions contemplated hereby whether alone or together with any other event; and
(8) no amounts payable under the Company Plans will fail to be deductible for federal income tax purposes by virtue of Section 280G of the Code as a result of the occurrence of the transactions contemplated by this Agreement, either alone or in combination with another event.
(c) The Company and its Subsidiaries have not entered into any employment or employment-related agreements (including change in control agreements and offer letters) to which a named individual is a party, other than those set forth on Section 3.13(a) of the Company Disclosure Letter.
(d) Each Company Plan that is a “nonqualified deferred compensation multiple employer plan” within the meaning of Section 409A of the Code and related Treasury Department guidance has (i413(c) been operated between January 1, 2005 and December 31, 2008, in good faith compliance with Section 409A of the Code and Notice 2005-01 and (ii) since January 1, 2009 (or such later date permitted under applicable guidance), been operated in compliance, and is in documentary compliance, in all material respects, with the requirements of Section 409A of the Code, or any “multiple employer welfare arrangement” within the meaning of Section 3(40) of ERISA.
(e) Neither Each Company Benefit Plan intended to qualify for special Tax treatment meets (and at all times has met) all the requirements for such treatment and no facts or circumstances exist that could adversely affect such qualified treatment. To the extent applicable, the present value of the accrued benefit liabilities (whether or not vested) under each Company nor any Subsidiary has a binding commitment to create any additional material Company Benefit Plan, or any plandetermined as of the end of the Company’s most recently ended fiscal year on the basis of reasonable actuarial assumptions, agreement or arrangement that would be a material each of which is reasonable, did not exceed the current value of the assets of such Company Benefit Plan if adopted, or allocable to modify or terminate any existing material Company Plan, except as required by applicable Lawsuch benefit liabilities.
(f) The ESOP 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 under any Company Benefit Plan or under any applicable Law; or (ii) accelerate the time of payment or vesting, funding or increase the amount of any compensation due, or in respect of, any director, employee or independent contractor of a Target Company.
(g) Except to the extent required by applicable Law, no Target Company provides or has any obligation or Liability to provide health or welfare benefits to any former or retired employee or is an “obligated or has any Liability to provide such benefits to any active employee stock ownership plan” within the meaning following such employee’s retirement or other termination of Section 4975(e)(7employment or service.
(h) No material Tax penalties or material additional Taxes have been imposed or would reasonably be expected to be imposed on any current or former officer, director, consultant or employee (or beneficiary thereof) of a Target Company (each a “Target Company Service Provider”), and no acceleration of Taxes has occurred or would be reasonably expected to occur. No current or former officer, director, consultant or employee (or beneficiary thereof) of a Target Company is entitled to receive any gross-up or additional payment or benefit in connection with any applicable Tax.
(i) All Company Benefit Plans can be terminated at any time as of or after the Code. Neither the Company nor the ESOP hasClosing Date without resulting in any Liability to any Target Company, within the three year period immediately preceding the date of this AgreementPubco, received SPAC or their respective Affiliates for any inquiry or notice from the IRS additional contributions, penalties, premiums, fees, fines, Taxes or any other governmental agency the effect of which is to question the qualification charges or status of the ESOP or any transaction entered into by the ESOP or the Company (with respect to the ESOP). The ESOP and the Company have filed all reports, returns or other documents in respect of the ESOP which are required to be filed pursuant to the applicable provisions of the Code and ERISA and the regulations thereunder. All loans entered into by the ESOP (the “ESOP Loans”) constitute “exempt loans” under Treasury Regulation Section 54.4975-7(b)(1)(iii). The securities held by the ESOP constitute “employer securities” under ERISA Section 407(d)(1) and Section 409(l) of the Code and “qualifying employer securities” under ERISA Section 407(d)(5) and Section 4975(e)(8) of the Codeliabilities.
Appears in 2 contracts
Sources: Business Combination Agreement (Launch One Acquisition Corp.), Business Combination Agreement (Launch One Acquisition Corp.)
Benefit Plans. (a) Section 3.13(a3.11(a) of the Company Disclosure Letter contains Schedule sets forth a true and complete list of each material Company Benefit Plan. For purposes of this Agreement, A “Company Benefit Plan” means each is any “employee benefit plan,” (within the meaning of as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), any multiemployer plan within the meaning of ERISA Section 3(37), ) and each stock purchase, stock option, severance, employment, change-in-control, fringe benefit, collective bargaining, bonus, incentive, incentive or deferred compensation, employee loan or other employee benefit compensation plan, agreement, program, policy or other arrangement, whether qualified or not nonqualified, written or unwritten, or subject to ERISA (including any funding mechanism therefor now in effect or required in all the future as a result of the transactions contemplated by this Agreement or otherwiseforegoing being herein called “Benefit Plans”), whether written or unwritten, in each case
(i) maintained maintained, entered into or contributed to by the Company or Company, any of its Subsidiaries for current Subsidiaries, or former directorsany trade or business, employees whether or consultants of not incorporated, that together with the Company or would be deemed a “single employer” within the meaning of section 4001(b) of ERISA (iia “Company ERISA Affiliate”) under which (A) any employee, director or consultant present or former employee, director director, independent contractor or consultant of the Company or any of its Subsidiaries has any present or future right to benefits and or (Bii) under which the Company or Company, any of its Subsidiaries Subsidiaries, or any Company ERISA Affiliate has had or has could reasonably be expected to have any present or future liability or obligation to contribute. liability.
(b) With respect to each material Company Benefit Plan, the Company has furnished or made available to Parent Acquiror a current, accurate correct and complete copy thereof, including any amendments, and, to the extent and (where applicable: ): (i) any the related trust agreement or other funding instrument, ; (ii) the most recent determination, determination letter or opinion or advisory letter of the Internal Revenue Service (the “IRS”)letter, if applicable, ; (iii) any the summary plan description or (including any summaries of material modifications) and other material written communications (or a description of any material oral communications) by the Company or its Subsidiaries to their employees the participants and/or beneficiaries concerning the extent of the benefits provided under a Company Plan and thereunder; (iv) the most recent insurance policies, certificates of coverage, and related documents; (v) for the four years preceding the date of this Agreement (A) the Annual Report (Form 5500 Series) and attached accompanying schedules, (B) audited financial statements, and (C) actuarial valuation reports, and (D) all notices issued by the IRS, Department of Labor, or other governmental agency to the Company or any of its Subsidiaries; and (vi) all contracts with Third Party administrators, actuaries, investment managers, consultants, and other independent contractors.
(bc) Except as disclosed in Section 3.13(b) of With respect to the Company Disclosure Letter and except asBenefit Plans, individually or and in the aggregate, (i) no event has not hadoccurred and, and would not reasonably be expected to have, a Material Adverse Effect on the Knowledge of the Company, there exists no condition or set of circumstances in connection with respect to which the Company Plans:
(1) each Company Plan has been established and administered in accordance with or any of its terms and in compliance with the applicable provisions of Subsidiaries could be subject to any material liability under ERISA, the Code and all or any other applicable LawsApplicable Law; (ii) no actions, and suits or claims (other than routine claims for benefits in the six years preceding ordinary course) are pending or to the date hereof no reportable event, as defined in Section 4043 of ERISA, no prohibited transaction, as described in Section 406 of ERISA or Section 4975 Knowledge of the CodeCompany, or failure to satisfy the minimum funding standards, within the meaning of Section 302 of ERISA and 412 of the Code, has occurred with respect to any Company Plan, and all contributions required to be made under the terms of any Company Plan have been timely made;
(2) each Company Plan intended to be qualified under Section 401(a) of the Code (A) has received a favorable determination, advisory and/or opinion letter, as applicable, from the IRS that it is so qualified, (B) the trust maintained thereunder has been determined to be exempt from taxation under Section 501(a) of the Code threatened; and (Ciii) to the Company’s knowledge, nothing has occurred since the date of such letter that could reasonably be expected to cause the loss of such qualified status of such Company Plan;
(3) there is no Action (including any administrative investigation, audit or other administrative proceeding) proceeding by the Department of Labor, the Pension Benefit Guaranty Corporation, the IRS or any other Governmental Entity or by any plan participant or beneficiary pending, governmental agency is pending or to the knowledge Knowledge of the Company, threatened.
(d) Except as set forth in Section 3.11(d) of the Company Disclosure Schedule, relating neither the execution and delivery of this Agreement or any other document contemplated hereby, nor the consummation of the Arrangement or any other transaction contemplated hereby (either alone or upon the occurrence of any additional or subsequent events), will result in the acceleration or creation of any rights of any Person to benefits under any Company Benefit Plan (including, but not limited to, the acceleration of the vesting or exercisability of any stock options or similar equity-based compensation, the acceleration of the vesting of any restricted stock or similar equity-based compensation, the acceleration of the accrual or vesting of any benefits under any pension plan or the acceleration or creation of any rights under any employment, severance, parachute or change in control agreement). Except as set forth in Section 3.11(d) of the Company Disclosure Schedule, each Company Benefit Plan can be merged, amended or terminated, without payment of any additional contribution or amount and without the vesting or acceleration of any benefits.
(e) No liability under Title IV or section 302 of ERISA has been incurred by the Company or by any Company ERISA Affiliate that has not been satisfied in full, and no condition exists that presents a risk to the Company Plans, or any fiduciaries thereof to which the Company could have an indemnification obligation with respect to their duties to the Company Plans or the assets ERISA Affiliate of any of the trusts under any of the Company Plans (other than routine claims for benefits) nor, to the knowledge of the Company, are there facts or circumstances that exist that could reasonably be expect to give rise to incurring any such Actions;liability.
(4f) no No Company Benefit Plan is or, within the preceding six years, has been subject to Section 302 or Title IV of ERISA or subject to Section 412 of the Code and neither the Company nor any Person that is a member of a “controlled group of corporations” with, or is under “common control” with, or is a member of the same “affiliated service group” with the Company, in each case, as defined in Sections 414(b), (c), (m) or (o) of the Code, maintains or contributes to (or has in the past six years maintained or contributed to) a multiemployer plan as defined in Section 3(37) of ERISA or a Title IV Plan;
(5) the Company and its Subsidiaries are not subject to any material liability, including additional contributions, fine, penalties or loss of Tax Deductions as a result of the administration or operation of any Company Plan that is a “group health plan” (as such term is defined in Section 5000(b)(1) of the Code);
(6) no Company Plan provides welfare benefits, including death or medical benefits (whether or not insured) beyond retirement or termination of service, other than coverage mandated solely by applicable Law;
(7) none of the Company Plans provides for payment of an amount or provision of a benefit, the increase of a payment or benefit, the payment of a contingent amount or provision of a contingent benefit, or the acceleration of the payment, funding or vesting of an amount or benefit determined or occasioned, in whole or in part, by reason of the execution of this Agreement or the consummation of the transactions contemplated hereby whether alone or together with any other event; and
(8) no amounts payable under the Company Plans will fail to be deductible for federal income tax purposes by virtue of Section 280G of the Code as a result of the occurrence of the transactions contemplated by this Agreement, either alone or in combination with another event.
(c) The Company and its Subsidiaries have not entered into any employment or employment-related agreements (including change in control agreements and offer letters) to which a named individual is a party, other than those set forth on Section 3.13(a) of the Company Disclosure Letter.
(d) Each Company Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A of the Code and related Treasury Department guidance has (i) been operated between January 1, 2005 and December 31, 2008, in good faith compliance with Section 409A of the Code and Notice 2005-01 and (ii) since January 1, 2009 (or such later date permitted under applicable guidance), been operated in compliance, and is in documentary compliance, in all material respects, with the requirements of Section 409A of the Code.
(e) Neither the Company nor any Subsidiary has a binding commitment to create any additional material Company Plan, or any plan, agreement or arrangement that would be a material Company Plan if adopted, or to modify or terminate any existing material Company Plan, except as required by applicable Law.
(f) The ESOP is an “employee stock ownership plan” within the meaning of Section 4975(e)(7) 4971 of the Code. Neither the Company nor the ESOP hasany other Company ERISA Affiliate participates or has participated in, or contributes or has contributed to a multi-employer plan within the three year period immediately preceding meaning of ERISA Section 3(37)(A). Neither the Company nor any other Company ERISA Affiliate sponsors or has sponsored, participates or has participated in, or contributes or has contributed to a voluntary employees’ beneficiary association within the meaning of Code Section 501(c)(9). Neither the Company nor any of its Subsidiaries has incurred any current or projected liability in respect of post-employment or post-retirement health, medical or life insurance benefits, except as required to avoid an excise Tax under Code Section 4980B. No Company Benefit Plan is a “multiemployer plan” within the meaning of ERISA Section 4001(a)(3).
(g) All filings required by ERISA and the Code as to each Company Benefit Plan have been timely filed, and all notices and disclosures to participants, participant spouses and beneficiaries required by ERISA or the Code have been timely provided.
(h) The Company has no formal plan or commitment, whether legally binding or not, to create any additional Company Benefit Plan or modify or change any existing Company Benefit Plan that would affect any employee of the Company, or any spouse, dependent or beneficiary thereof.
(i) The Company and each of its Subsidiaries have performed all of their obligations under all Company Benefit Plans and have made appropriate entries in their financial records and statements for all obligations and liabilities under the Company Benefit Plans that have accrued as of the date of this Agreement. Each Company Benefit Plan is, received any inquiry or notice from in form and operation, in full compliance with ERISA, the IRS or any Code, and other governmental agency the effect of which is to question the qualification or status of the ESOP or any Applicable Laws. No transaction entered into prohibited by the ESOP or the Company (ERISA Section 406 and no “prohibited transaction” under Code Section 4975(c) has occurred with respect to the ESOP)any Company Benefit Plan.
(j) All contributions and payments made or accrued with respect to all Employee Benefit Plans are deductible under Code Section 162 or 404. The ESOP and No amount, or any asset of any Employee Benefit Plan is subject to tax as unrelated business taxable income.
(k) No payment that is owed or may become due to any director, officer, employee, or agent of the Company have filed all reports, returns will be non-deductible by the Company or other documents in respect any of its Subsidiaries under Code Section 280G or 4999; nor will the Company or any of its Subsidiaries be required to “gross up” or otherwise compensate any such Person because of the ESOP which are required imposition of any excise tax on a payment to be filed pursuant to such Person.
(l) Each Company Benefit Plan that provides for nonqualified deferred compensation within the applicable provisions meaning of Code Section 409A complies in form and operation with the requirements of Code Section 409A.
(m) No Company Benefit Plan is maintained outside the jurisdiction of the Code and ERISA and United States, or covers any employee residing or working outside the regulations thereunder. All loans entered into by the ESOP (the “ESOP Loans”) constitute “exempt loans” under Treasury Regulation Section 54.4975-7(b)(1)(iii). The securities held by the ESOP constitute “employer securities” under ERISA Section 407(d)(1) and Section 409(l) jurisdiction of the Code and “qualifying employer securities” under ERISA Section 407(d)(5) and Section 4975(e)(8) of the CodeUnited States.
Appears in 2 contracts
Sources: Arrangement Agreement (Magnum Hunter Resources Corp), Arrangement Agreement (NGAS Resources Inc)
Benefit Plans. (a) Section 3.13(a4.17(a) of the Company Disclosure Letter contains a true and complete list of each material Company Plan. For purposes of this Agreement, “Company Plan” means each lists all “employee benefit planplans” (within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended 1974 (“ERISA”)), and all stock purchase, stock option, severance, employment, consulting, change-inof-control, fringe benefit, bonus, incentive, deferred compensationcompensation and other benefit plans (including the Company Stock Plan), employee loan agreements, programs, policies or other employee benefit plan, agreement, program, policy or other arrangementcommitments, whether or not subject to ERISA (including other than any funding mechanism therefor now in effect material benefit plans, agreements, programs, policies or required in the future as a result of the transactions contemplated by this Agreement or otherwisecommitments mandated under applicable Law), whether written or unwritten, in each case (i) maintained by the Company or under which any of its Subsidiaries for current or former directorsdirector, employees or consultants of the Company or (ii) under which (A) any employeeofficer, director or consultant or former employee, director employee or consultant of the Company or any of its Subsidiaries has any present or future right to benefits benefits, and (Bii) which are maintained, sponsored or contributed to by the Company or any of its Subsidiaries has had or has to which the Company or any present of its Subsidiaries makes or future liability is required to make contributions with respect to such directors, officers, employees or obligation consultants other than any “multiemployer plan” (as defined in Section 3(37) or 4001(a)(3) of ERISA (“Multiemployer Plan”). All such plans, agreements, programs, policies and commitments are collectively referred to contribute. as the “Company Benefit Plans.”
(b) With respect to each material Company Benefit Plan, if applicable, the Company has furnished or made available to Parent a current, accurate true and complete copy thereof, including any amendments, and, to the extent applicable: copies of (i) the written document evidencing such Company Benefit Plan or, with respect to any related trust agreement or other funding instrumentsuch plan that is not in writing, a written description of the material terms thereof; (ii) the summary plan description; (iii) the most recent determinationannual report, opinion or advisory financial statement and/or actuarial report; (iv) the most recent determination letter of received from the Internal Revenue Service (the “IRS”), if applicable, ; (iii) any summary plan description or other material written communications by the Company or its Subsidiaries to their employees concerning the extent of the benefits provided under a Company Plan and (ivv) the most recent (A) Form 5500 and attached schedulesrequired to have been filed with the IRS, including all schedules thereto; (Bvi) audited financial statementsany related trust agreements, insurance contracts or documents of any other funding arrangements; (vii) any material notices to or from the IRS or any office or representative of the Department of Labor relating to any compliance issues which have not been resolved in respect of any such Company Benefit Plan; (viii) all amendments, modifications or supplements to any Company Benefit Plan; and (Cix) actuarial valuation reportsdocuments evidencing any discrimination or coverage tests performed during the last plan year.
(bc) Except as disclosed in Section 3.13(b) of the Company Disclosure Letter and except aswould not reasonably be expected, individually or in the aggregate, has not had, and would not reasonably be expected to have, result in a Material Adverse Effect on the Company, with respect Liability material to the Company Plans:
and its Subsidiaries, taken as a whole, (1i) each Company Benefit Plan has been established and administered is in accordance with its terms and in material compliance with the applicable provisions of ERISA, the Code and all other applicable Laws, Law and in the six years preceding the date hereof no reportable event, as defined in Section 4043 of ERISA, no prohibited transaction, as described in Section 406 of ERISA or Section 4975 of the Code, or failure to satisfy the minimum funding standards, within the meaning of Section 302 of ERISA and 412 of the Code, has occurred with respect to any Company Plan, and (ii) all contributions required to be made under to the Company Benefit Plans pursuant to their terms of any Company Plan and applicable Law have been timely made;made or accrued in accordance with GAAP.
(2d) With respect to each Company Benefit Plan that is intended to be qualified qualify under Section 401(a) of the Code (Ai) has received a favorable determination, advisory and/or opinion letter, as applicable, from determination letter has been issued by the IRS that it is so qualifiedwith respect to such qualification, (Bii) the its related trust maintained thereunder has been determined to be exempt from taxation under Section 501(a) of the Code Code, and (Ciii) to the Company’s knowledge, nothing no event has occurred since the date of such letter qualification or exemption that could reasonably be expected to cause the loss of would materially adversely affect such qualified status of such Company Plan;qualification or exemption.
(3e) there There have been no (i) non-exempt prohibited transactions (as defined in Section 4975(c) of the Code and Section 406 of ERISA) with respect to any Company Benefit Plan that is no Action (including any investigationsubject to Section 4975 of the Code or Section 406 of ERISA, audit or other administrative proceeding) by where the Department of LaborCompany or, the Pension Benefit Guaranty Corporation, the IRS or any other Governmental Entity or by any plan participant or beneficiary pending, or to the knowledge Knowledge of the Company, threatened, relating to the any party dealing with such Company Plans, any fiduciaries thereof to which the Company could have an indemnification obligation with respect to their duties to the Company Plans Benefit Plan or the assets of any of the trusts under any of the Company Plans (other than routine claims for benefits) nor, to the knowledge of the Company, are there facts or circumstances that exist that could reasonably be expect to give rise to any such Actions;
(4) no Company Plan is or, within the preceding six years, has been trust would be reasonably expected to be subject to Title IV of ERISA or subject either a civil penalty assessed pursuant to Section 412 of the Code and neither the Company nor any Person that is a member of a “controlled group of corporations” with, 409 or is under “common control” with, or is a member of the same “affiliated service group” with the Company, in each case, as defined in Sections 414(b), (c), (m) or (o) of the Code, maintains or contributes to (or has in the past six years maintained or contributed to) a multiemployer plan as defined in Section 3(37502(i) of ERISA or a Title IV Plan;
(5) the Company and its Subsidiaries are not subject tax imposed pursuant to any material liability, including additional contributions, fine, penalties Section 4975 or loss of Tax Deductions as a result 4976 of the administration or operation of any Company Plan that is a “group health plan” Code, (ii) reportable events (as such term is defined in Section 5000(b)(14043(c) of ERISA), or (iii) to the Knowledge of the Company, breaches of any of the duties imposed on “fiduciaries” (within the meaning of Section 3(21) of ERISA) by ERISA with respect to the Company Benefit Plans that are subject to ERISA, in each case, that could reasonably be expected to result in any material liability or excise tax under ERISA or the Code being imposed on the Company or any of its Subsidiaries.
(f) At no time during the six (6) years immediately preceding the date of this Agreement has the Company or any of its Subsidiaries or Affiliates had any obligation to contribute to any Multiemployer Plan and the Company has no outstanding liability with respect to any outstanding claims for any withdrawal liability (within the meaning of Section 4201 of ERISA) that were previously assessed by any such plan.
(g) No Company Benefit Plan is a “multiple employer” plan (as defined in Section 4063 or 4064 of ERISA) or is funded by, associated with or related to a “voluntary employees’ beneficiary association” (within the meaning of Section 501(c)(9) of the Code);.
(6h) no With respect to each Company Benefit Plan provides welfare benefitsthat is subject to Title IV or Section 302 of ERISA or Section 412 or 4971 of the Code, including death as of the last day of the Company’s fiscal year, September 30, 2011, the actuarially determined present value of all “benefit liabilities” (within the meaning of Section 4001(a)(16) of ERISA) did not exceed the then current value of assets of such Company Benefit Plan or, if such liabilities did exceed such assets, the amount thereof was properly reflected on the financial statements of Company or medical benefits (whether or not insured) beyond retirement or termination of service, other than coverage mandated solely by its applicable Law;Subsidiary previously filed with the SEC.
(7i) none To the Knowledge of the Company, neither the Company Plans provides for payment nor any of an amount its Subsidiaries has disseminated in writing any legally binding commitment to create or provision implement any additional employee benefit plan that would be a Company Employee Plan if in existence on the date hereof, or to amend, modify or terminate any Company Employee Plan, in each such case that would result in the incurrence of a benefitLiability material to the Company and its Subsidiaries taken as a whole.
(j) Except as set forth in this Agreement, the increase of a payment or benefit, the payment of a contingent amount or provision of a contingent benefit, or the acceleration of the payment, funding or vesting of an amount or benefit determined or occasioned, in whole or in part, by reason of the execution and delivery of this Agreement or and the consummation of the transactions contemplated hereby whether alone or together with any other event; and
will not (8) no amounts payable under the Company Plans will fail to be deductible for federal income tax purposes by virtue of Section 280G of the Code as a result of the occurrence of the transactions contemplated by this Agreement, either alone or in combination with another event.
) (ci) The result in any material payment from the Company or any of its Subsidiaries becoming due, or increase the amount of any compensation due, to any current or former director, officer, employee or consultant of the Company or any of its Subsidiaries, (ii) increase any material benefits otherwise payable under any Company Benefit Plan, (iii) result in the acceleration of the time of payment or vesting of any material compensation or benefits from the Company or any of its Subsidiaries to any current or former director, officer, employee or consultant of the Company or any of its Subsidiaries, (iv) result in the payment of any amount that would not be deductible pursuant to the terms of Section 280G of the Code, or (v) result in any limitation on the right of Company or any of its Subsidiaries to amend, merge, terminate or receive a reversion of assets from any Company Benefit Plan or related trust upon more than 30 days advance notice and giving rise to a Liability material to the Company and its Subsidiaries have as a result thereof.
(k) No Company Benefit Plan provides for any tax “gross-up,” including but not entered into limited to a gross-up for any employment taxes imposed by Section 280G, 4999 or employment-related agreements 409A of the Code that remains in effect.
(including change in control agreements l) No deduction for federal income tax purposes by the Company has been disallowed for remuneration paid by the Company and offer letters) to which a named individual is a party, other than those set forth on its Subsidiaries by reason of Section 3.13(a162(m) of the Company Disclosure LetterCode.
(dm) Each Company Benefit Plan is amendable and terminable unilaterally by the Company or one or more of its Subsidiaries upon no more than 30 days advance notice without Liability material to the Company and its Subsidiaries as a result thereof.
(n) Each Company Benefit Plan that is a “nonqualified non-qualified deferred compensation plan” within the meaning of plan or arrangement subject to Section 409A of the Code and related Treasury Department guidance has (i) been operated between January 1, 2005 and December 31, 2008, is in good faith material compliance with Section 409A of the Code in form and Notice 2005-01 in operation other than such noncompliance that is not reasonably likely to result, individually or in the aggregate, in a Liability material to the Company and its Subsidiaries taken as a whole.
(o) No Company Benefit Plan is maintained outside the jurisdiction of the United States or covers any employee residing or working outside the United States.
(p) Except as would not reasonably be expected, individually or in the aggregate, to result in Liability material to the Company and its Subsidiaries, taken as a whole, with respect to each Company Benefit Plan (i) there are no pending, or, to the Knowledge of the Company, threatened, claims or litigation against any Company Benefit Plan or actions by any Governmental Authority with respect to termination proceedings or other claims (other than ordinary claims for benefits payable in the normal operation of the Company Benefit Plans), and (ii) since January 1, 2009 (or such later date permitted under applicable guidance), no written communication has been operated received from the Pension Benefit Guaranty Corporation in compliance, and is in documentary compliance, in all material respects, with respect of any Company Benefit Plan subject to Title IV of ERISA indicating that the requirements of Section 409A of plan had failed to meet the Code.
(e) Neither the Company nor any Subsidiary has a binding commitment to create any additional material Company Plan, or any plan, agreement or arrangement that would be a material Company Plan if adopted, or to modify or terminate any existing material Company Plan, except as required by applicable Law.
(f) The ESOP is an “employee stock ownership plan” minimum funding standard within the meaning of Section 4975(e)(7) of the Code. Neither the Company nor the ESOP has, within the three year period immediately preceding the date of this Agreement, received any inquiry or notice from the IRS or any other governmental agency the effect of which is to question the qualification or status of the ESOP or any transaction entered into by the ESOP or the Company (with respect to the ESOP). The ESOP Sections 412 and the Company have filed all reports, returns or other documents in respect of the ESOP which are required to be filed pursuant to the applicable provisions 430 of the Code and ERISA and (whether or not waived) or notifying the regulations thereunder. All loans entered into Company of the institution of any proceeding to terminate any such plan.
(q) Upon consummation of the Merger, all Company Options with an exercise price equal to, or greater than, the Merger Consideration can be cancelled by the ESOP (Company without any Liability to the “ESOP Loans”) constitute “exempt loans” under Treasury Regulation Section 54.4975-7(b)(1)(iii). The securities held by the ESOP constitute “employer securities” under ERISA Section 407(d)(1) and Section 409(l) of the Code and “qualifying employer securities” under ERISA Section 407(d)(5) and Section 4975(e)(8) of the Codeholder thereof.
Appears in 2 contracts
Sources: Merger Agreement (LD Commodities Sugar Holdings LLC), Merger Agreement (Imperial Sugar Co /New/)
Benefit Plans. (ai) Section 3.13(aEach Benefit Plan intended to be tax qualified under Sections 401(a) and 501(a) of the Company Disclosure Letter contains Internal Revenue Code of 1986, as amended (the "CODE")
(i) has been determined by the Internal Revenue Service (the "IRS") to be tax qualified under Sections 401(a) and 501(a) of the Code and, since such determination, no amendment to or failure to amend any such Benefit Plan and no other event or circumstance has occurred that could reasonably be expected to adversely affect its tax qualified status, and (ii) has or will be submitted to the IRS for a true and complete list determination that it continues to be tax qualified in accordance with GUST (as defined in Revenue Procedure 2001-55, 2001-49 I.R.B. 552 (Nov. 15, 2001)) before the end of each material Company Planthe GUST remedial amendment period (as set forth in that same Revenue Procedure or subsequent guidance from the IRS). For purposes of this Agreement, “Company Plan” means each “employee benefit plan” (There have been no prohibited transactions within the meaning of Section 3(3) 4975 of the Code or Section 406 of Title I of the Employee Retirement Income Security Act of 1974, as amended (“"ERISA”")), with respect to any Benefit Plan, except to the extent there is an exemption available under Section 4975(d) of the Code or Section 408 of ERISA, or a class or individual exemption issued by the Department of Labor. For purposes of this Agreement, "BENEFIT PLAN" shall mean any pension, retirement, savings, deferred compensation or profit-sharing plan, any stock option, stock appreciation, stock purchase, stock optionperformance share, severance, employment, change-in-control, fringe benefit, bonus, incentive, deferred compensation, employee loan bonus or other incentive plan, severance plan, health, group insurance or other welfare plan, or other similar plan (whether written or otherwise) and any "employee benefit plan" within the meaning of Section 3(3) of ERISA, agreement, program, policy under which the Company has any current or other arrangement, whether future obligation or not subject to ERISA liability (including any funding mechanism therefor now in effect potential, contingent or required in the future as a result secondary liability under Title IV of the transactions contemplated by this Agreement ERISA) or otherwise), whether written or unwritten, in each case (i) maintained by the Company or under which any of its Subsidiaries for current employee or former directors, employees employee (or consultants beneficiary of any employee or former employee) of the Company has or (ii) under which (A) may have any employee, director or consultant or former employee, director or consultant of the Company or any of its Subsidiaries has any present current or future right to benefits and (B) the Company or any of its Subsidiaries has had or has any present or future liability or obligation to contribute. With respect to each material Company Plan, the Company has furnished or made available to Parent a current, accurate and complete copy thereof, including any amendments, and, to the extent applicable: (i) any related trust agreement or other funding instrument, (ii) the most recent determination, opinion or advisory letter of the Internal Revenue Service (the “IRS”term "plan" shall include any contract, agreement (including an employment or independent contractor agreement), if applicable, (iii) any summary plan description policy or other material written communications by the Company or its Subsidiaries to their employees concerning the extent of the benefits provided under a Company Plan and (iv) the most recent (A) Form 5500 and attached schedules, (B) audited financial statements, and (C) actuarial valuation reportsunderstanding.
(b) Except as disclosed in Section 3.13(b) of the Company Disclosure Letter and except as, individually or in the aggregate, has not had, and would not reasonably be expected to have, a Material Adverse Effect on the Company, with respect to the Company Plans:
(1) each Company Plan has been established and administered in accordance with its terms and in compliance with the applicable provisions of ERISA, the Code and all other applicable Laws, and in the six years preceding the date hereof no reportable event, as defined in Section 4043 of ERISA, no prohibited transaction, as described in Section 406 of ERISA or Section 4975 of the Code, or failure to satisfy the minimum funding standards, within the meaning of Section 302 of ERISA and 412 of the Code, has occurred with respect to any Company Plan, and all contributions required to be made under the terms of any Company Plan have been timely made;
(2) each Company Plan intended to be qualified under Section 401(a) of the Code (A) has received a favorable determination, advisory and/or opinion letter, as applicable, from the IRS that it is so qualified, (B) the trust maintained thereunder has been determined to be exempt from taxation under Section 501(a) of the Code and (C) to the Company’s knowledge, nothing has occurred since the date of such letter that could reasonably be expected to cause the loss of such qualified status of such Company Plan;
(3) there is no Action (including any investigation, audit or other administrative proceeding) by the Department of Labor, the Pension Benefit Guaranty Corporation, the IRS or any other Governmental Entity or by any plan participant or beneficiary pending, or to the knowledge of the Company, threatened, relating to the Company Plans, any fiduciaries thereof to which the Company could have an indemnification obligation with respect to their duties to the Company Plans or the assets of any of the trusts under any of the Company Plans (other than routine claims for benefits) nor, to the knowledge of the Company, are there facts or circumstances that exist that could reasonably be expect to give rise to any such Actions;
(4) no Company Plan is or, within the preceding six years, has been subject to Title IV of ERISA or subject to Section 412 of the Code and neither the Company nor any Person that is a member of a “controlled group of corporations” with, or is under “common control” with, or is a member of the same “affiliated service group” with the Company, in each case, as defined in Sections 414(b), (c), (m) or (o) of the Code, maintains or contributes to (or has in the past six years maintained or contributed to) a multiemployer plan as defined in Section 3(37) of ERISA or a Title IV Plan;
(5) the Company and its Subsidiaries are not subject to any material liability, including additional contributions, fine, penalties or loss of Tax Deductions as a result of the administration or operation of any Company Plan that is a “group health plan” (as such term is defined in Section 5000(b)(1) of the Code);
(6) no Company Plan provides welfare benefits, including death or medical benefits (whether or not insured) beyond retirement or termination of service, other than coverage mandated solely by applicable Law;
(7) none of the Company Plans provides for payment of an amount or provision of a benefit, the increase of a payment or benefit, the payment of a contingent amount or provision of a contingent benefit, or the acceleration of the payment, funding or vesting of an amount or benefit determined or occasioned, in whole or in part, by reason of the execution of this Agreement or the consummation of the transactions contemplated hereby whether alone or together with any other event; and
(8) no amounts payable under the Company Plans will fail to be deductible for federal income tax purposes by virtue of Section 280G of the Code as a result of the occurrence of the transactions contemplated by this Agreement, either alone or in combination with another event.
(c) The Company and its Subsidiaries have not entered into any employment or employment-related agreements (including change in control agreements and offer letters) to which a named individual is a party, other than those set forth on Section 3.13(a) of the Company Disclosure Letter.
(d) Each Company Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A of the Code and related Treasury Department guidance has (i) been operated between January 1, 2005 and December 31, 2008, in good faith compliance with Section 409A of the Code and Notice 2005-01 and (ii) since January 1, 2009 (or such later date permitted under applicable guidance), been operated in compliance, and is in documentary compliance, in all material respects, with the requirements of Section 409A of the Code.
(e) Neither the Company nor any Subsidiary has a binding commitment to create any additional material Company Plan, or any plan, agreement or arrangement that would be a material Company Plan if adopted, or to modify or terminate any existing material Company Plan, except as required by applicable Law.
(f) The ESOP is an “employee stock ownership plan” within the meaning of Section 4975(e)(7) of the Code. Neither the Company nor the ESOP has, within the three year period immediately preceding the date of this Agreement, received any inquiry or notice from the IRS or any other governmental agency the effect of which is to question the qualification or status of the ESOP or any transaction entered into by the ESOP or the Company (with respect to the ESOP). The ESOP and the Company have filed all reports, returns or other documents in respect of the ESOP which are required to be filed pursuant to the applicable provisions of the Code and ERISA and the regulations thereunder. All loans entered into by the ESOP (the “ESOP Loans”) constitute “exempt loans” under Treasury Regulation Section 54.4975-7(b)(1)(iii). The securities held by the ESOP constitute “employer securities” under ERISA Section 407(d)(1) and Section 409(l) of the Code and “qualifying employer securities” under ERISA Section 407(d)(5) and Section 4975(e)(8) of the Code.
Appears in 2 contracts
Sources: Securities Purchase Agreement (Clearwire Corp), Securities Purchase Agreement (Clearwire Corp)
Benefit Plans. (a) Section 3.13(aSection 4.12(a) of the Company Disclosure Letter contains a true and complete list of each material Company Plan. For purposes of this Agreement, “Company Plan” means each “employee benefit plan” (within the meaning of Section section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), whether or not subject to ERISA), “multiemployer plans” (within the meaning of ERISA section 3(37)), and all stock purchase, stock option, phantom stock or other equity-based plan, severance, employment, collective bargaining, change-in-control, fringe benefit, bonus, incentive, deferred compensation, employee loan supplemental retirement, health, life, or disability insurance, dependent care and all other employee benefit planand compensation plans, agreementagreements, programprograms, policy policies or other arrangementarrangements, whether or not subject to ERISA (including any funding mechanism therefor now in effect or required in the future as a result of the transactions contemplated by this Agreement or otherwise), whether formal or informal, written or unwrittenoral, in each case (i) maintained by the Company legally binding or any of its Subsidiaries for current or former directorsnot, employees or consultants of the Company or (ii) under which (A) any employee, director or consultant current or former employee, director or consultant of the Company or any of its Subsidiaries (or any of their dependents) has any present or future right to compensation or benefits and (B) or the Company or any of its Subsidiaries has had sponsors or maintains, is making contributions to or has any present or future liability or obligation (contingent or otherwise) or with respect to contributewhich it is otherwise bound. All such plans, agreements, programs, policies and arrangements shall be collectively referred to as the “Company Plans.” The Company has provided or made available to Parent a current, accurate and complete copy of each material Company Plan, or if such Company Plan is not in written form, a written summary of all of the material terms of such Company Plan. With respect to each material Company Plan, the Company has furnished or made available to Parent a current, accurate and complete copy thereof, including any amendments, andof, to the extent applicable: (i) any related trust agreement or other funding instrument, (ii) the most recent determination, opinion or advisory determination letter of the Internal Revenue Service (the “IRS”), if applicable, (iii) any summary plan description or description, summary of material modifications, and other similar material written communications by (or a written description of any material oral communications) to the employees of the Company or any of its Subsidiaries to their employees concerning the extent of the benefits provided under a Company Plan and (iv) for the three most recent years and as applicable (A) the Form 5500 and attached schedules, (B) audited financial statements, statements and (C) actuarial valuation reports.
(b) Except as disclosed in Section 3.13(b) of the Company Disclosure Letter and except as, individually or in the aggregate, has not had, and would not reasonably be expected to have, a Material Adverse Effect on Neither the Company, its Subsidiaries or any member of their Controlled Group (defined as any organization which is a member of a controlled, affiliated or otherwise related group of entities within the meaning of Code Sections 414(b), (c), (m) or (o)) has ever sponsored, maintained, contributed to or been required to contribute to or incurred any liability (contingent or otherwise) with respect to: (i) a “multiemployer plan” (within the meaning of ERISA section 3(37)), (ii) an “employee pension benefit plan,” within the meaning of Section 3(2) of ERISA (“Pension Plan”) that is subject to Title IV of ERISA or Section 412 of the Code, (iii) a Pension Plan which is a “multiple employer plan” as defined in Section 413 of the Code, or (iv) a “funded welfare plan” within the meaning of Section 419 of the Code.
(c) With respect to the Company Plans:
(1i) each Company Plan has been established and administered complies in accordance all material respects with its terms and materially complies in compliance form and in operation with the applicable provisions of ERISA, ERISA and the Code and all other applicable Laws, and in the six years preceding the date hereof no reportable event, as defined in Section 4043 of ERISA, no prohibited transaction, as described in Section 406 of ERISA or Section 4975 of the Code, or failure to satisfy the minimum funding standards, within the meaning of Section 302 of ERISA and 412 of the Code, has occurred with respect to any Company Plan, and all contributions required to be made under the terms of any Company Plan have been timely madelegal requirements;
(2ii) each Company Plan intended to be qualified under Section 401(a) of the Code (A) has received a favorable determination, advisory and/or opinion letter, as applicable, from the IRS that it is so qualified, (B) the trust maintained thereunder has been determined to be exempt from taxation under Section 501(a) of the Code qualified and (C) to the Company’s knowledge, nothing has occurred to the knowledge of the Company since the date of such letter that could would reasonably be expected to cause the loss of the sponsor’s ability to rely upon such letter, and nothing has occurred to the knowledge of the Company that would reasonably be expected to result in the loss of the qualified status of such Company Plan;
(3iii) there is no material Action (including any investigation, audit or other administrative proceeding) by the Department of Labor, the Pension Benefit Guaranty CorporationCorporation (the “PBGC”), the IRS or any other Governmental Entity or by any plan participant or beneficiary pending, or to the knowledge of the Company, threatened, relating to the Company Plans, any fiduciaries thereof to which the Company could have an indemnification obligation with respect to their duties to the Company Plans or the assets of any of the trusts under any of the Company Plans (other than routine claims for benefits) nor, to the knowledge of the Company, are there facts or circumstances that exist that could reasonably be expect to give rise to any such Actionsactions;
(4) no Company Plan is or, within the preceding six years, has been subject to Title IV of ERISA or subject to Section 412 of the Code and neither the Company nor any Person that is a member of a “controlled group of corporations” with, or is under “common control” with, or is a member of the same “affiliated service group” with the Company, in each case, as defined in Sections 414(b), (c), (m) or (o) of the Code, maintains or contributes to (or has in the past six years maintained or contributed to) a multiemployer plan as defined in Section 3(37) of ERISA or a Title IV Plan;
(5) the Company and its Subsidiaries are not subject to any material liability, including additional contributions, fine, penalties or loss of Tax Deductions as a result of the administration or operation of any Company Plan that is a “group health plan” (as such term is defined in Section 5000(b)(1) of the Code);
(6) no Company Plan provides welfare benefits, including death or medical benefits (whether or not insured) beyond retirement or termination of service, other than coverage mandated solely by applicable Law;
(7iv) none of the Company Plans provides for payment of an amount or provision of a benefit, the increase of a payment or benefit, the payment of a contingent amount or provision of a contingent benefitcurrently provides, or the acceleration reflects or represents any liability to provide post-termination or retiree welfare benefits to any person for any reason, except as may be required by Section 601, et seq. of ERISA and Section 4980B(b) of the paymentCode or other applicable similar law regarding health care coverage continuation (collectively “COBRA”), funding or vesting of an amount or benefit determined or occasioned, in whole or in part, by reason and none of the Company, its Subsidiaries or any members of its Controlled Group has any liability to provide post-termination or retiree welfare benefits to any person or ever represented, promised or contracted to any employee or former employee of the Company or any of its Subsidiaries (either individually or to employees as a group) or any other person that such employee(s) or other person would be provided with post-termination or retiree welfare benefits, except to the extent required by statute or except with respect to a contractual obligation to reimburse any premiums such person may pay in order to obtain health coverage under COBRA;
(v) each Company Plan is subject exclusively to United States Law; and
(vi) the execution and delivery of this Agreement or and the consummation of the transactions contemplated hereby whether alone or together with any other event; and
(8) no amounts payable under the Company Plans Merger will fail to be deductible for federal income tax purposes by virtue of Section 280G of the Code as a result of the occurrence of the transactions contemplated by this Agreementnot, either alone or in combination with another any other event.
, (cA) The Company and its Subsidiaries have not entered into entitle any employment current or employment-related agreements (including change in control agreements and offer letters) to which a named individual is a partyformer employee, other than those set forth on Section 3.13(a) officer, director or consultant of the Company Disclosure Letteror any of its Subsidiaries to severance pay, unemployment compensation or any other similar termination payment, or (B) accelerate the time of payment or vesting, or increase the amount of or otherwise enhance any benefit due any such employee, officer, director or consultant.
(d) Neither the Company nor any of its Subsidiaries is a party to any agreement, contract, arrangement or plan (including any Company Plan) that may reasonably be expected to result, separately or in the aggregate, in connection with the transactions contemplated by this Agreement (either alone or in combination with any other events), in the payment of any “parachute payments” within the meaning of Section 280G of the Code. There is no agreement, plan or other arrangement to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries is otherwise bound to compensate any person in respect of Taxes or other liabilities incurred with respect to Section 409A or 4999 of the Code.
(e) Each Company Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A of the Code and related Treasury Department guidance has (i) been operated between January 1, 2005 and December 31, 2008, in good faith compliance with Section 409A of the Code and Notice 2005-01 and (ii) since January 1, 2009 (or such later date permitted under applicable guidance)any comparable or similar provision of state, been operated local, or foreign Law) complies in compliance, both form and is in documentary compliance, operation in all material respects, respects with the requirements of Section 409A of the Code.
Code (e) Neither the Company nor or any Subsidiary has a binding commitment to create any additional material Company Plancomparable or similar provision of state, local, or any plan, agreement or arrangement that would be a material Company Plan if adopted, or to modify or terminate any existing material Company Plan, except as required by foreign Law) and all applicable Law.
(f) The ESOP is an “employee stock ownership plan” within the meaning of Section 4975(e)(7) of the Code. Neither the Company nor the ESOP has, within the three year period immediately preceding the date of this Agreement, received any inquiry or notice from the IRS or any other governmental agency the effect of which is to question the qualification or status of the ESOP or any transaction entered into by the ESOP or the Company (guidance issued with respect to thereto (and has so complied for the ESOP). The ESOP and the Company have filed all reports, returns or other documents in respect of the ESOP entire period during which are required to be filed pursuant to the applicable provisions Section 409A of the Code and ERISA and the regulations thereunder. All loans entered into by the ESOP (the “ESOP Loans”has applied to such Company Plan) constitute “exempt loans” so that no amount paid or payable pursuant to any such Company Plan is subject to any additional Tax or interest under Treasury Regulation Section 54.4975-7(b)(1)(iii). The securities held by the ESOP constitute “employer securities” under ERISA Section 407(d)(1) and Section 409(l) 409A of the Code and “qualifying employer securities” under ERISA Section 407(d)(5) and Section 4975(e)(8) (or any comparable or similar provision of the Codestate, local, or foreign Law).
Appears in 2 contracts
Sources: Merger Agreement (Kintara Therapeutics, Inc.), Merger Agreement (Kintara Therapeutics, Inc.)
Benefit Plans. (a) Section 3.13(a) of the Company Disclosure Letter contains a true and complete list of each material Company Plan. For purposes of this Agreement, “Company Plan” means each All “employee benefit planplans” (within the meaning of Section section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”)), ) and all stock purchase, stock option, severance, employment, change-in-control, fringe benefit, bonus, incentive, deferred compensation, employee loan or loan, and all other employee benefit planplans, agreementagreements, programprograms, policy policies or other arrangementarrangements, and whether or not subject to ERISA (including any funding mechanism therefor now in effect or required in the future as a result of the transactions contemplated by this Agreement or otherwise)ERISA, whether written or unwritten, in each case (i) maintained by the Company or any of its Subsidiaries for current or former directors, employees or consultants of the Company or (ii) under which (A) any employee, director or consultant or former employee, director director, officer, independent contractor or consultant of the Company or any of its Subsidiaries has any present or future right to benefits and (B) the or under which Company or any of its Subsidiaries has had or has any present or future liability or obligation are referred to contribute. herein as the “Company Plans.” Each material Company Plan is identified on Section 3.11(a) of the Company Disclosure Letter.
(b) With respect to each material Company Plan, the Company has furnished or made available to Parent Purchaser a current, accurate and complete copy thereof, including any amendments, thereof and, to the extent applicable: (i) any related trust agreement or other funding instrument, (ii) the most recent determination, determination or opinion or advisory letter of the Internal Revenue Service (the “IRS”), if applicable, (iii) any the most recent summary plan description or other material written communications by the Company or its Subsidiaries to their employees concerning the extent of the benefits provided under a Company Plan description, and (iv) for the most recent year (A) the Form 5500 and attached schedules, (B) audited financial statements, statements and (C) actuarial valuation reports.
(bc) Except as disclosed in Section 3.13(b) With respect to each Company Plan, except to the extent that the inaccuracy of any of the Company Disclosure Letter and except asrepresentations set forth in this Section 3.11, individually or in the aggregate, has have not had, and would not reasonably be expected to have, had a Company Material Adverse Effect on the Company, with respect to the Company PlansEffect:
(1i) each Company 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 all other applicable Laws, and in the six years preceding the date hereof no reportable event, as defined in Section 4043 of ERISA, no prohibited transaction, as described in Section 406 of ERISA or Section 4975 of the Code, or failure to satisfy the minimum funding standards, within the meaning of Section 302 of ERISA and 412 of the Code, has occurred with respect to any Company PlanLaw, and all contributions required to be made under the terms of any Company Plan have been timely made;
(2ii) each Company Plan intended to be qualified under Section 401(a) of the Code (A) has received a favorable determination, advisory and/or opinion letter, as applicable, from the IRS that it is so qualifiedqualified and, (B) the trust maintained thereunder has been determined to be exempt from taxation under Section 501(a) of the Code and (C) to the knowledge of Company’s knowledge, nothing has occurred since the date of such letter that could would reasonably be expected to cause the loss of such qualified status of such Company PlanPlan or (B) is a volume submitter or prototype plan whose sponsor obtained a favorable opinion letter and on which letter Company is permitted to rely;
(3iii) there is no Action (including any investigation, audit or other administrative proceeding) by the Department of Labor, the Pension Benefit Guaranty CorporationPBGC, the IRS or any other Governmental Entity or by any plan participant or beneficiary pendingpending or, or to the knowledge of the Company, threatened, threatened relating to the Company Plans, any fiduciaries thereof to which the Company could have an indemnification obligation with respect to their duties to the Company Plans or the assets of any of the trusts under any of the Company Plans (other than routine claims for benefits) nor, to the knowledge of the Company, are there facts or circumstances that exist that could reasonably be expect to give rise to any such Actions;
(4) , and no written or oral communication has been received from the PBGC in respect of any Company Plan is or, within the preceding six years, has been subject to Title IV of ERISA concerning the funded status of any such plan or subject to Section 412 any transfer of the Code assets and neither the Company nor liabilities from any Person that is a member of a “controlled group of corporations” with, or is under “common control” with, or is a member of the same “affiliated service group” such plan in connection with the transactions contemplated herein; and
(iv) to the knowledge of Company, in each case, as defined in Sections 414(b), (c), (m) or (o) of the Code, maintains or contributes to (or has in the past six years maintained or contributed to) a multiemployer plan as defined in Section 3(37) of ERISA or a Title IV Plan;
(5) the Company and its Subsidiaries are not subject to any material liability, including additional contributions, fine, penalties or loss of Tax Deductions as a result of the administration or operation of any Company Plan that is a no “group health planreportable event” (as such term is defined in Section 5000(b)(14043 of ERISA) that could reasonably be expected to result in liability; no nonexempt “prohibited transaction” (as such term is defined in Section 406 of ERISA and Section 4975 of the Code);
; and no “accumulated funding deficiency” (6as defined in Section 302 of ERISA and Section 412 of the Code) no Company Plan provides welfare benefitsor failure to timely satisfy any “minimum funding standard” (within the meaning of Section 302 of ERISA or Sections 412 or 430 of the Code), including death or medical benefits (in each case whether or not insuredwaived, has occurred with respect to any Company Plan.
(d) beyond (i) Each Company Plan pursuant to which the Company or any of its Subsidiaries could incur any current or projected liability in respect of post-employment or post-retirement health, medical, or termination life insurance benefits for current, former, or retired employees of service, other than coverage mandated solely the Company or any of its Subsidiaries (except as required to avoid an excise tax under Section 4980B of the Code or otherwise except as may be required by applicable Law;
) (7“Retiree Medical Benefits”) none is identified in Section 3.11(e) of the Company Plans provides for payment Disclosure Letter, and (ii) the provisions of an amount each Company Plan so identified which provide Retiree Medical Benefits may be terminated at any time by the Company or provision its Subsidiaries without liability to the Company or its Subsidiaries.
(e) Neither Company nor any of its Subsidiaries is a benefitparty to any Contract that will, directly or in combination with other events, result, separately or in the increase of a payment or benefitaggregate, the payment of a contingent amount or provision of a contingent benefit, or the acceleration of in the payment, funding acceleration or vesting enhancement of an amount or any benefit determined or occasioned, in whole or in part, by reason of the execution of this Agreement or the consummation of the transactions contemplated hereby whether alone or together with any other event; and
(8) no amounts payable under the Company Plans will fail to be deductible for federal income tax purposes by virtue of Section 280G of the Code as a result of the occurrence of the transactions contemplated by this Agreement, either alone or in combination with another event.
(c) The and neither the execution of this Agreement, Company and its Subsidiaries have not entered into any employment or employment-related agreements (including change in control agreements and offer letters) to which a named individual is a party, other than those set forth on Section 3.13(a) shareholder approval of this Agreement nor the consummation of the Company Disclosure Letter.
transactions contemplated hereby will (dA) Each Company Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A of the Code and related Treasury Department guidance has (i) been operated between January 1, 2005 and December 31, 2008, result in good faith compliance with Section 409A of the Code and Notice 2005-01 and (ii) since January 1, 2009 (or such later date permitted under applicable guidance), been operated in compliance, and is in documentary compliance, in all material respects, with the requirements of Section 409A of the Code.
(e) Neither the Company nor any Subsidiary has a binding commitment to create any additional material Company Plan, severance pay or any plan, agreement or arrangement that would be a material Company Plan if adopted, or to modify or terminate increase in severance pay upon any existing material Company Plan, except as required by applicable Law.
(f) The ESOP is an “employee stock ownership plan” within the meaning termination of Section 4975(e)(7) of the Code. Neither the Company nor the ESOP has, within the three year period immediately preceding employment after the date of this Agreement, received (B) accelerate the time of payment or vesting or result in any inquiry payment or notice from funding (through a grantor trust or otherwise) of compensation or benefits under, increase the IRS amount payable or result in any other governmental agency the effect of which is to question the qualification or status material obligation to, any of the ESOP Company Plans, (C) limit or any transaction entered into by restrict the ESOP or right of the Company (with respect to the ESOP). The ESOP and merge, amend, or terminate any of the Company have filed all reportsPlans, returns or other documents (D) result in respect the payment of the ESOP payments which are required to would not be filed pursuant to the applicable provisions of the Code and ERISA and the regulations thereunder. All loans entered into by the ESOP (the “ESOP Loans”) constitute “exempt loans” deductible under Treasury Regulation Section 54.4975-7(b)(1)(iii). The securities held by the ESOP constitute “employer securities” under ERISA Section 407(d)(1) and Section 409(l) of the Code and “qualifying employer securities” under ERISA Section 407(d)(5) and Section 4975(e)(8) 280G of the Code.
Appears in 2 contracts
Sources: Merger Agreement (Hancock Holding Co), Merger Agreement (Whitney Holding Corp)
Benefit Plans. (a) Section 3.13(a3.12(a) of the Company Disclosure Letter contains sets forth a true and complete list list, as of the date hereof, of each material Company Benefit Plan. For purposes of this Agreement, “Company Plan” means each “employee benefit plan” (within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”)), stock purchase, stock option, severance, employment, change-in-control, fringe benefit, bonus, incentive, deferred compensation, employee loan or other employee benefit plan, agreement, program, policy or other arrangement, whether or not subject to ERISA (including any funding mechanism therefor now in effect or required in the future as a result of the transactions contemplated by this Agreement or otherwise), whether written or unwritten, in each case (i) maintained by the Company or any of its Subsidiaries for current or former directors, employees or consultants of the Company or (ii) under which (A) any employee, director or consultant or former employee, director or consultant of the Company or any of its Subsidiaries has any present or future right to benefits and (B) the Company or any of its Subsidiaries has had or has any present or future liability or obligation to contribute. With respect to each material Company Benefit Plan, the Company has furnished or made available available, upon request, to Parent a current, GX complete and accurate and complete copy thereof, including any amendments, copies of (i) such Company Benefit Plan and, to the extent applicable: (i) any related trust agreement or other funding instrument, a summary plan description thereof, (ii) the most recent determination, opinion audited financial statements and actuarial or advisory letter of the Internal Revenue Service (the “IRS”)other valuation reports prepared with respect thereto, if applicable, (iii) if the Company Benefit Plan is funded through a trust or any other funding arrangement, a copy of such trust or other funding arrangement; (iv) each current ERISA summary plan description or other and summary of material written communications by the Company or its Subsidiaries to their employees concerning the extent of the benefits provided under a Company Plan and modifications, if any, (ivv) the three most recent (A) recently filed Annual Reports on Form 5500 and attached schedules5500, (Bvi) audited financial statementsall material non-routine correspondence to and from any governmental authority within the last three (3) years, if any, and (Cvii) actuarial valuation reports.
(b) Except as disclosed in Section 3.13(b) of the Company Disclosure Letter and except as, individually or in the aggregate, has not had, and would not reasonably be expected to have, a Material Adverse Effect on the Company, with respect to the Company Plans:
(1) each Company Plan has been established and administered in accordance with its terms and in compliance with the applicable provisions of ERISA, the Code and all other applicable Laws, and in the six years preceding the date hereof no reportable event, as defined in Section 4043 of ERISA, no prohibited transaction, as described in Section 406 of ERISA or Section 4975 of the Code, or failure to satisfy the minimum funding standards, within the meaning of Section 302 of ERISA and 412 of the Code, has occurred with respect to any Company Plan, and all contributions required to be made under the terms of any Company Plan have been timely made;
(2) each Company Benefit Plan intended to be qualified under Section 401(a) of the Code (A) has Code, the most recently received a favorable determination, advisory and/or IRS determination or opinion letter, as applicable, from .
(i) Each of the IRS that it is so qualified, (B) the trust maintained thereunder Company Benefit Plans has been determined to be exempt from taxation under Section 501(a) of operated and administered in compliance with its terms and in accordance with applicable Laws, including ERISA, the Code and in each case the regulations thereunder, in all material respects, (C) to the Company’s knowledge, nothing has occurred since the date of such letter that could reasonably be expected to cause the loss of such qualified status of such Company Plan;
(3) there is no Action (including any investigation, audit or other administrative proceeding) by the Department of Labor, the Pension Benefit Guaranty Corporation, the IRS or any other Governmental Entity or by any plan participant or beneficiary pending, or to the knowledge of the Company, threatened, relating to the Company Plans, any fiduciaries thereof to which the Company could have an indemnification obligation with respect to their duties to the Company Plans or the assets of any of the trusts under any of the Company Plans (other than routine claims for benefits) nor, to the knowledge of the Company, are there facts or circumstances that exist that could reasonably be expect to give rise to any such Actions;
(4ii) no Company Plan is or, within the preceding six years, has been subject to Title IV of ERISA or subject to Section 412 of the Code and neither the Company nor any Person that is a member of a “controlled group of corporations” with, or is under “common control” with, or is a member of the same “affiliated service group” with the Company, in each case, as defined in Sections 414(b), (c), (m) or (o) of the Code, maintains or contributes to (or has in the past six years maintained or contributed to) a multiemployer plan as defined in Section 3(37) of ERISA or a Title IV Plan;
(5) the Company and its Subsidiaries are not subject to any material liability, including additional contributions, fine, penalties or loss of Tax Deductions as a result of the administration or operation of any Company Plan that is a “group health plan” (as such term is defined in Section 5000(b)(1) of the Code);
(6) no Company Benefit Plan provides welfare benefits, including death or medical benefits (whether or not insured) ), with respect to current or former employees or directors of the Company or the Company Subsidiaries beyond their retirement or other termination of service, other than coverage mandated solely by the Consolidated Omnibus Budget Reconciliation Act of 1985 or comparable U.S. state law, (iii) all contributions, distributions or other amounts that are due by the Company or the Company Subsidiaries as of the Closing pursuant to each Company Benefit Plan and any Multiemployer Plan, Multiple Employer Plan or MEWA to which the Company or any of the Company Subsidiaries is obligated to contribute in respect of current or prior plan years have been timely paid in accordance with the terms of each such applicable Law;plan and applicable Laws or, to the extent not yet due, have been accrued in accordance with GAAP, (iv) neither the Company nor any of the Company Subsidiaries has engaged in a transaction in connection with which the Company or the Company Subsidiaries could be subject to material liability from either a civil penalty assessed pursuant to Section 409 or 502(i) of ERISA or a tax imposed pursuant to Section 4975 or 4976 of the Code, and (v) there are no pending or, to the Knowledge of the Company, threatened in writing, material claims, actions, investigations or audits (other than routine claims for benefits) by, on behalf of or against any of the Company Benefit Plans or any trusts related thereto.
(7c) Except as set forth on Section 3.12(c) of the Company Disclosure Letter, none of the Company, any of the Company Subsidiaries or any of their respective ERISA Affiliates (i) maintains, sponsors, contributes to or has any obligation to contribute to, (ii) has maintained, sponsored, contributed to or had an obligation to contribute to, in any such case, within the preceding six years, or (iii) has any liability under or with respect to (A) a “defined benefit plan” (as such term is defined in Section 3(35) of ERISA) or any other plan that is or was subject to Section 302, 303 or Title IV of ERISA or Section 412, 430 or 4971 of the Code, in any such case, covering employees who reside or work primarily in the United States, (B) a Multiemployer Plan, (C) a Multiple Employer Plan, or (D) a MEWA. None of the Company, any of the Company Subsidiaries or any of their respective ERISA Affiliates has, within the preceding six years, withdrawn in a complete or partial withdrawal from any Multiemployer Plan or incurred any liability under Section 4202 of ERISA.
(d) No Company Benefit Plan is or is intended to be: (i) a “registered pension plan”, (ii) a “retirement compensation arrangement”, or (iii) an “employee life and health trust” as such terms are defined in subsection 248(1) of the Income Tax Act (Canada), or (iv) a “health and welfare trust” within the meaning of Canada Revenue Agency Income Tax Folio S2-F1-C1. No Company Benefit Plan contains or has ever contained a “defined benefit provision” as such term is defined in subsection 147.1(1) of the Income Tax Act (Canada). No Company Benefit Plan is intended to be, or has ever been found or alleged by a Governmental Entity to be, a “salary deferral arrangement” as such term is defined in subsection 248(1) of the Income Tax Act (Canada).
(e) No Company Benefit Plan is or has been maintained, sponsored, or contributed to (or required to be contributed to) by the Company for any director, officer, consultant, worker or employee subject to the Laws of Canada.
(f) Each of the Company Benefit Plans provides for payment intended to be “qualified” within the meaning of an amount Section 401(a) of the Code, (i) is so qualified and, to the Knowledge of the Company, there are no existing circumstances or provision of a benefitany events that have occurred that would reasonably be expected to adversely affect, in any material respect, the increase qualified status of any such plan and (ii) has received a payment or benefit, the payment of a contingent amount or provision of a contingent benefitfavorable determination letter, or the acceleration of the paymentmay rely upon a current opinion letter, funding or vesting of an amount or benefit determined or occasioned, in whole or in part, by reason of as to its qualification.
(g) Neither the execution and delivery of this Agreement or nor the consummation of the transactions contemplated hereby whether Transactions (either alone or together in conjunction with any other event; and
) will (8) no amounts payable under i) entitle any current or former employee, director or other service provider of the Company Plans or any of the Company Subsidiaries to any payment, benefit or other compensation, (ii) result in the acceleration of vesting, exercisability, funding or delivery of, or the increase in the amount or value of, any payment, right or other benefit to any current or former employee, director or other service provider of the Company or any of the Company Subsidiaries, (iii) result in any payment or funding (through a grantor trust or otherwise) of compensation or benefits under, increase the amount payable or result in any other material obligation pursuant to, any Company Benefit Plan, or (iv) result in any limitation on the right of the Company or any of the Company Subsidiaries to amend, merge, terminate or receive a reversion of assets from any Company Benefit Plan or related trust on or after the First Merger Effective Time. No amount paid or payable (whether in cash, in property, or in the form of benefits) by the Company or any of the Company Subsidiaries in connection with the Transactions (either solely as a result thereof or as a result of such transactions in conjunction with any other event) will fail to be deductible for federal income tax purposes by virtue an “excess parachute payment” within the meaning of Section 280G of the Code Code.
(h) No person is entitled to receive any additional payment (including any Tax gross-up, indemnification, reimbursement, or other payment) from the Company or any of the Company Subsidiaries as a result of the occurrence imposition of the transactions contemplated excise Taxes required by this Agreement, either alone or in combination with another event.
(c) The Company and its Subsidiaries have not entered into any employment or employment-related agreements (including change in control agreements and offer letters) to which a named individual is a party, other than those set forth on Section 3.13(a) of the Company Disclosure Letter.
(d) Each Company Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A 4999 of the Code and related Treasury Department guidance has (i) been operated between January 1, 2005 and December 31, 2008, in good faith compliance with Section 409A of the Code and Notice 2005-01 and (ii) since January 1, 2009 (or such later date permitted under applicable guidance), been operated in compliance, and is in documentary compliance, in all material respects, with the requirements of any Taxes required by Section 409A of the Code.
(ei) Neither Each Company Option has been granted in accordance with the terms of the Company nor any Subsidiary Incentive Plan applicable to such Company Options. Each Company Option has a binding commitment to create any additional material been granted with an exercise price that is no less than the fair market value of the underlying Company PlanCommon Shares on the date of grant, or any plan, agreement or arrangement that would be a material Company Plan if adopted, or to modify or terminate any existing material Company Plan, except as required by applicable Law.
(f) The ESOP is an “employee stock ownership plan” within the meaning of determined in accordance with Section 4975(e)(7) 409A of the Code. Neither the Company nor the ESOP has, within the three year period immediately preceding the date of this Agreement, received any inquiry or notice from the IRS or any other governmental agency the effect of which is to question the qualification or status as well as Section 422 of the ESOP or any transaction entered into by the ESOP or the Code if applicable. Each Company (with respect to the ESOP). The ESOP and the Company have filed all reports, returns or other documents in respect of the ESOP which are required Option is intended to be filed pursuant to the applicable provisions exempt from Section 409A of the Code and ERISA and the regulations thereunder. All loans entered into by the ESOP (the “ESOP Loans”) constitute “exempt loans” under Treasury Regulation Section 54.4975-7(b)(1)(iii)has been maintained in a manner consistent with that intent. The securities held by Company has made available to GX, accurate and complete copies of (i) the ESOP constitute “employer securities” Company Incentive Plans, (ii) the forms of standard award agreement under ERISA Section 407(d)(1the Company Incentive Plans, (iii) copies of any award agreements that materially deviate from such forms and Section 409(l(iv) a list of all outstanding equity and equity-based awards granted under the Code Company Incentive Plans, together with the material terms thereof (including grant date, exercise price, vesting terms, expiration date, and “qualifying employer securities” under ERISA Section 407(d)(5) and Section 4975(e)(8) number of the Codeshares underlying such award).
Appears in 2 contracts
Sources: Business Combination Agreement (GX Acquisition Corp. II), Business Combination Agreement (Niocorp Developments LTD)
Benefit Plans. (a) Section 3.13(a) Each Pension Plan, Welfare Plan and Benefit Plan, which is currently maintained by Buyer or any of the Company Disclosure Letter contains a true and complete list its ERISA Affiliates or to which Buyer or any of each material Company Plan. For purposes its ERISA Affiliates currently contributes, or is under any current obligation to contribute, or under which Buyer or any of this Agreementits ERISA Affiliates has any liability, “Company Plan” means each “employee benefit plan” contingent or otherwise (including any withdrawal liability within the meaning of Section 3(34201 of ERISA) of (collectively, the “Buyer Employee Retirement Income Security Act of 1974Plans” and individually, as amended (a “ERISABuyer Employee Plan”)), stock purchaseand each management, stock optionemployment, severance, employmentconsulting, changenon-in-controlcompete, fringe benefitconfidentiality, bonus, incentive, deferred compensation, employee loan or other employee benefit plan, agreement, program, policy similar agreement or other arrangement, whether or not subject to ERISA (including any funding mechanism therefor now in effect or required in the future as a result of the transactions contemplated by this Agreement or otherwise), whether written or unwritten, in each case (i) maintained by the Company contract between Buyer or any of its Subsidiaries for current or former directors, employees or consultants of the Company or (ii) under and any Buyer Employee pursuant to which (A) any employee, director or consultant or former employee, director or consultant of the Company Buyer or any of its Subsidiaries has or may have any present liability, contingent or future right to benefits otherwise (“Buyer Employee Agreement”), is listed in the Buyer Disclosure Schedule. True and (B) the Company or any of its Subsidiaries has had or has any present or future liability or obligation to contribute. With respect to each material Company Plan, the Company has furnished complete copies have been delivered or made available to Parent a current, accurate and complete copy thereof, including any amendments, and, to the extent applicable: Company of (i) any related all material documents embodying or relating to each Buyer Employee Plan and each Buyer Employee Agreement, including all amendments thereto, written interpretations thereof and trust agreement or other funding instrument, agreements or insurance policies with respect thereto; (ii) the two most recent determination, opinion or advisory letter of the Internal Revenue Service (the “IRS”)annual actuarial valuations, if applicableany, prepared for each Buyer Employee Plan; (iii) any summary plan description a statement of alternative form of compliance pursuant to DOL Regulation §2520.104-23, if any, filed for each Buyer Employee Plan which is an “employee pension benefit plan” (as defined in Section 3(2) of ERISA) for a select group of management or other material written communications by the Company or its Subsidiaries to their employees concerning the extent of the benefits provided under a Company Plan and highly compensated employees; (iv) the most recent determination letter received from the IRS, if any, for each Buyer Employee Plan and related trust which is intended to satisfy the requirements of Section 401(a) of the Code; (Av) Form if a Buyer Employee Plan is funded, the most recent annual and periodic accounting of Buyer Employee Plan assets; (vi) the most recent summary plan description together with all subsequent summaries of material modifications, if any, required under ERISA with respect to each Buyer Employee Plan; (vii) the three most recent annual reports (Series 5500 and attached schedulesall schedules thereto), (B) audited financial statementsif any, filed as required under ERISA, in connection with each Buyer Employee Plan or related trust; and (Cviii) actuarial valuation reportsa listing of each investment option offered to participants under each Pension Plan that allows for self-directed investments by participants. None of Buyer, Buyer Subsidiary or any of Buyer’s Subsidiaries or ERISA Affiliates has any plan or commitment, whether legally binding or not, to establish any new Buyer Employee Plan, to enter into any Buyer Employee Agreement or to modify or to terminate any Buyer Employee Plan or Buyer Employee Agreement (except to the extent required by law or to conform any such Buyer Employee Plan or Buyer Employee Agreement to the requirements of any applicable law, in each case as previously disclosed to the Company, or as required by this Agreement), nor has any intention to do any of the foregoing been communicated to Buyer Employees.
(b) Except as disclosed in Buyer and each of its ERISA Affiliates has made on a timely basis all contributions or payments required to be made by it under the terms of the Buyer Employee Plans, ERISA, the Code, or other applicable laws.
(c) Each Buyer Employee Plan intended to qualify under Section 3.13(b401 of the Code is, and since its inception has been, so qualified and a determination letter has been issued by the IRS to the effect that each such Buyer Employee Plan is so qualified and that each trust forming a part of any such Buyer Employee Plan is exempt from tax pursuant to Section 501(a) of the Company Disclosure Letter Code and, to the knowledge of Buyer, no circumstances exist which would be reasonably likely to affect adversely this qualification or exemption, including any failure to timely adopt any amendment required by the IRS as a condition of qualification under Section 401(a) of the Code.
(d) Each Buyer Employee Plan (and except asany related trust or other funding instrument) has been established, individually or in the aggregate, has not hadmaintained, and would not reasonably be expected to have, a Material Adverse Effect on the Company, with respect to the Company Plans:
(1) each Company Plan has been established and administered in all material respects in accordance with its terms and in both form and operation is in compliance in all material respects with the applicable provisions of ERISA, the Code Code, and other applicable laws, statutes, orders, rules and regulations (other than adoption of any plan amendments for which the deadline has not yet expired), and all reports required to be filed with any governmental agency with respect to each Buyer Employee Plan have been timely filed, other applicable Lawsthan filings that are inconsequential.
(e) There is no litigation, and in arbitration, audit or investigation or administrative proceeding pending or, to the six years preceding knowledge of Buyer, threatened against Buyer or any of its ERISA Affiliates or, to the knowledge of Buyer, any plan fiduciary by the IRS, the DOL, the PBGC, or any participant or beneficiary with respect to any Buyer Employee Plan as of the date hereof no reportable event, as defined in Section 4043 of ERISA, no prohibited transaction, as described in Section 406 of ERISA this Agreement. No event or Section 4975 of the Code, or failure to satisfy the minimum funding standards, within the meaning of Section 302 of ERISA and 412 of the Code, transaction has occurred with respect to any Company Plan, and all contributions required to be made under Buyer Employee Plan that would result in the terms imposition of any Company Plan have been timely made;
(2) each Company Plan intended to be qualified material tax under Section 401(a) Chapter 43, 46 or 47 of Subtitle D of the Code (A) has received a favorable determination, advisory and/or opinion letter, as applicable, from the IRS that it is so qualified, (B) the trust maintained thereunder has been determined to be exempt from taxation under Section 501(a) of the Code and (C) to the Company’s knowledge, nothing has occurred since the date of such letter that could reasonably be expected to cause the loss of such qualified status of such Company Plan;
(3) there is no Action (including any investigation, audit or other administrative proceeding) by the Department of Labor, the Pension Benefit Guaranty Corporation, the IRS or any other Governmental Entity or by any plan participant or beneficiary pending, or to the knowledge of the Company, threatened, relating to the Company Plans, any fiduciaries thereof to which the Company could have an indemnification obligation with respect to their duties to the Company Plans or the assets of Code. Neither Buyer nor any of the trusts under any of the Company Plans (other than routine claims for benefits) its ERISA Affiliates nor, to the knowledge of Buyer, any plan fiduciary of any Pension Plan or Welfare Plan maintained by Buyer or its Subsidiaries has engaged in any transaction in violation of Section 406(a) or (b) of ERISA for which no exemption exists under Section 408 of ERISA (including any prohibited transaction class exemption issued by the CompanyDOL) or any “prohibited transaction” (as defined in Section 4975(c)(1) of the Code) for which no exemption exists under Section 4975(c)(2) or 4975(d) of the Code, are there facts or circumstances that exist that could reasonably be expect to give rise is subject to any such Actions;material excise tax imposed by the Code or ERISA with respect to any Buyer Employee Plan.
(4f) no Company Each Buyer Employee Plan is or(other than Buyer Employee Agreements) can be amended, within the preceding six yearsterminated or otherwise discontinued without liability to Buyer, any of its Subsidiaries or any of its ERISA Affiliates, other than for benefits accrued to date and administrative costs.
(g) No liability under any Buyer Employee Plan has been funded, nor has any such obligation been satisfied with the purchase of a contract from an insurance company as to which Buyer or any of its Subsidiaries has received notice that such insurance company is insolvent or is in rehabilitation or any similar proceeding.
(h) No liability for non-qualified deferred compensation under any Buyer Employee Plan or Buyer Employee Agreement is funded through any of (i) the purchase of corporate owned life insurance (COLI), (ii) a “secular” trust, (iii) a “rabbi” trust that is irrevocable or otherwise provides restrictions on the return of assets to the Buyer, or (iv) any off-shore funding arrangement. Neither the Buyer nor any of its Subsidiaries contributes to any split-dollar life insurance on the life of any Buyer Employee.
(i) Neither the Buyer nor any of its ERISA Affiliates currently maintains, nor at any time in the previous six calendar years maintained or had an obligation to contribute to, any defined benefit pension plan subject to Title IV of ERISA or subject to Section 412 of the Code and neither the Company nor any Person that is a member of a “controlled group of corporations” withERISA, or is under any “common controlmultiemployer plan” with, or is a member of the same “affiliated service group” with the Company, in each case, as defined in Sections 414(b), (c), (m) or (o) of the Code, maintains or contributes to (or has in the past six years maintained or contributed to) a multiemployer plan as defined in Section 3(37) of ERISA or a Title IV Plan;ERISA.
(5j) the Company and None of Buyer or any of its Subsidiaries are not subject or ERISA Affiliates (i) maintains or contributes to any material liabilityBuyer Employee Plan which provides, including additional contributionsor has any liability to provide, finelife insurance, penalties medical, severance or loss other employee welfare benefits to any Buyer Employee (or beneficiary of Tax Deductions as a result of the administration or operation of any Company Plan that is a “group health plan” (as such term is defined in Section 5000(b)(1employee) of the Code);
(6) no Company Plan provides welfare benefits, including death or medical benefits (whether or not insured) beyond upon his retirement or termination of serviceemployment, other than coverage mandated solely except as may be required by applicable Law;
(7) none Section 4980B of the Company Plans provides for payment of an amount Code; or provision of a benefit, the increase of a payment or benefit, the payment of a contingent amount or provision of a contingent benefit, or the acceleration of the payment, funding or vesting of an amount or benefit determined or occasioned, in whole or in part, by reason of the execution of this Agreement or the consummation of the transactions contemplated hereby whether alone or together with any other event; and
(8) no amounts payable under the Company Plans will fail to be deductible for federal income tax purposes by virtue of Section 280G of the Code as a result of the occurrence of the transactions contemplated by this Agreement, either alone or in combination with another event.
(c) The Company and its Subsidiaries have not entered into any employment or employment-related agreements (including change in control agreements and offer letters) to which a named individual is a party, other than those set forth on Section 3.13(a) of the Company Disclosure Letter.
(d) Each Company Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A of the Code and related Treasury Department guidance has (i) been operated between January 1, 2005 and December 31, 2008, in good faith compliance with Section 409A of the Code and Notice 2005-01 and (ii) since January 1has ever represented, 2009 promised or contracted (whether in oral or written form) to any Buyer Employee (either individually or to Buyer Employees as a group) that such Buyer Employee(s) (or beneficiary of such later date permitted under applicable guidance)employee) would be provided with life insurance, been operated in compliancemedical, and is in documentary complianceseverance or other employee welfare benefits upon their retirement or termination of employment, in all material respects, with except to the requirements of extent required by Section 409A 4980B of the Code.
(ek) Neither The execution of, and performance of the transactions contemplated in, this Agreement will not (either alone or upon the occurrence of any additional or subsequent events) (i) constitute an event under any Buyer Employee Plan, Buyer Employee Agreement, trust or loan that will or may result in aggregate payments in excess of $25,000 (whether of severance pay or otherwise), acceleration, forgiveness of indebtedness, vesting, distribution, increase in benefits or obligation to fund benefits with respect to any Buyer Employee, or (ii) result in the triggering or imposition of any restrictions or limitations on the right of Buyer or the Company nor any Subsidiary has a binding commitment to create any additional material Company Plan, or any plan, agreement or arrangement that would be a material Company Plan if adopted, or to modify amend or terminate any existing material Company PlanBuyer Employee Plan and receive the full amount of any excess assets remaining or resulting from such amendment or termination, except as required by subject to applicable Lawtaxes, or (iii) results in any “rabbi” trust becoming irrevocable or subject to any restrictions on the return of assets to the Buyer.
(fl) The ESOP There is an “employee stock ownership plan” within no commitment covering any Buyer Employee that, individually or in the meaning of Section 4975(e)(7) of the Code. Neither the Company nor the ESOP hasaggregate, within the three year period immediately preceding the date of this Agreement, received any inquiry or notice from the IRS or any other governmental agency the effect of which is would be reasonably likely to question the qualification or status of the ESOP or any transaction entered into by the ESOP or the Company (with respect give rise to the ESOP). The ESOP and the Company have filed all reports, returns or other documents payment of any amount that would result in respect a material loss of the ESOP which are required to be filed tax deductions pursuant to the applicable provisions of the Code and ERISA and the regulations thereunder. All loans entered into by the ESOP (the “ESOP Loans”) constitute “exempt loans” under Treasury Regulation Section 54.4975-7(b)(1)(iii). The securities held by the ESOP constitute “employer securities” under ERISA Section 407(d)(1) and Section 409(l) of the Code and “qualifying employer securities” under ERISA Section 407(d)(5) and Section 4975(e)(8162(m) of the Code.
(m) Buyer and each of its Subsidiaries (i) is in compliance in all material respects with all applicable federal, state and local laws, rules and regulations (domestic and foreign) respecting employment, employment practices, labor, terms and conditions of employment and wages and hours, in each case, with respect to Buyer Employees; (ii) is not liable for any arrears of wages or any penalty for failure to comply with any of the foregoing; and (iii) is not liable for any material past due payment to any trust or other fund or to any governmental or administrative authority, with respect to unemployment compensation benefits, social security or other benefits for Buyer Employees.
(n) No work stoppage or labor strike against Buyer or any of its Subsidiaries by Buyer Employees is pending or threatened. Neither Buyer nor any of its Subsidiaries (i) is involved in or threatened with any labor dispute, grievance, or litigation relating to labor matters involving any Buyer Employees, including violation of any federal, state or local labor, safety or employment laws (domestic or foreign), charges of unfair labor practices or discrimination complaints, other than such disputes, grievances or litigation that are inconsequential; (ii) has engaged in any unfair labor practices within the meaning of the National Labor Relations Act or the Railway Labor Act; or (iii) is presently, nor has been in the past six years a party to, or bound by, any collective bargaining agreement or union contract with respect to Buyer Employees and no such agreement or contract is currently being negotiated by Buyer or any of its affiliates. No Buyer Employees are currently represented by any labor union for purposes of collective bargaining and, to the knowledge of Buyer, no activities the purpose of which is to achieve such representation of all or some of such Buyer Employees are threatened or ongoing.
Appears in 2 contracts
Sources: Merger Agreement (Optika Inc), Merger Agreement (Stellent Inc)
Benefit Plans. (a) Section 3.13(a2.17(a) of the Company Disclosure Letter contains a true Schedule sets forth an accurate and complete list of each the material Company Plan. For purposes of this Agreement, “Company Plan” means each “employee benefit plan” Employee Plans (within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”)), stock purchase, stock option, severance, employment, change-in-control, fringe benefit, bonus, incentive, deferred compensation, employee loan or other employee benefit plan, agreement, program, policy or other arrangement, whether or not subject to ERISA (including any funding mechanism therefor now in effect or required in the future as a result of the transactions contemplated by this Agreement or otherwise), whether written or unwritten, in each case than (i) maintained by the Company or any of its Subsidiaries employment agreements for current or former directors, non-officer employees or consultants of the Company or its Subsidiaries that do not provide for any severance rights, (ii) under which (Aequity grant notices with respect to awards disclosed on Section 2.3(g) any employee, director or consultant or former employee, director or consultant of the Company or any of its Subsidiaries has any present or future right to benefits Disclosure Schedule and (B) that do not materially deviate from the Company or any of its Subsidiaries has had or has any present or future liability or obligation to contribute. With respect to each material Company Plan, the Company has furnished forms delivered or made available to Parent a currentprior to the execution of this Agreement in accordance with Section 2.17(k), or (iii) agreements with individual consultants entered into in the ordinary course of business consistent with past practice). To the extent applicable, the Company has either delivered or made available to Parent prior to the execution of this Agreement with respect to each material Employee Plan accurate and complete copy thereof, including any amendments, and, to the extent applicablecopies of: (iA) any all plan documents and all amendments thereto, and all related trust agreement or other funding instrumentdocuments, and in the case of unwritten material Employee Plans, written descriptions thereof, (iiB) the most recent determinationannual actuarial valuation, if any, and the most recent annual report (Form Series 5500 and all schedules and financial statements attached thereto), (C) all material correspondence to or from the IRS, the United States Department of Labor or any other Governmental Body with respect to an Employee Plan, (D) all determination letters, rulings, opinion letters, information letters or advisory letter of the Internal Revenue Service (the “IRS”), if applicable, (iii) any summary plan description or other material written communications opinions issued by the Company IRS or its Subsidiaries to their employees concerning the extent United States Department of the benefits provided under a Company Plan Labor, and (ivE) the most recent (A) Form 5500 summary plan descriptions and attached schedules, (B) audited financial statements, and (C) actuarial valuation reportsany material modifications thereto.
(b) Except as disclosed in Section 3.13(b) of Neither the Company Disclosure Letter and except asnor any ERISA Affiliate has ever maintained, individually contributed to, been required to contribute to, or in the aggregate, has not had, and would not reasonably be expected to have, a Material Adverse Effect on the Company, otherwise incurred any liability with respect to, (i) a plan subject to the Company Plans:
(1) Title IV or Section 302 of ERISA or Code Section 412 or 4971, including any “single employer” defined benefit plan or any “multiemployer plan,” each Company Plan has been established and administered in accordance with its terms and in compliance with the applicable provisions of ERISA, the Code and all other applicable Laws, and in the six years preceding the date hereof no reportable event, as defined in Section 4043 4001 of ERISA, no prohibited transaction, as described in Section 406 or (ii) a plan that has two or more contributing sponsors at least two of ERISA or Section 4975 of the Code, or failure to satisfy the minimum funding standardswhom are not under common control, within the meaning of Section 302 4063 of ERISA and 412 ERISA.
(c) Each of the Code, has occurred with respect to any Company Plan, and all contributions required to be made under the terms of any Company Plan have been timely made;
(2) each Company Plan Employee Plans that is intended to be qualified under Section 401(a) of the Code (A) has received obtained a favorable determination, advisory and/or determination letter (or opinion letter, if applicable) as applicableto its qualified status under the Code, from each such Employee Plan has timely adopted all currently effective amendments to the IRS Code, and, to the knowledge of the Company, there are no existing circumstances or any events that it have occurred that would reasonably be expected to affect the qualified status of any such Employee Plan.
(d) Each of the Employee Plans is so qualified, (B) the trust maintained thereunder now and has been determined operated in compliance in all material respects with its terms and all applicable Legal Requirements, including but not limited to be exempt from taxation under Section 501(aERISA and the Code.
(e) There are no pending or threatened claims (other than routine claims for benefits in the ordinary course of business consistent with past practice) or Legal Proceedings, and, to the knowledge of the Code and (C) Company, no set of circumstances exists that may reasonably give rise to a claim or Legal Proceeding, against the Employee Plans, any fiduciaries thereof or the assets of any related trusts. No Employee Plan is under audit or, to the Company’s knowledge, nothing has occurred since the date subject of such letter that could reasonably be expected to cause the loss of such qualified status of such Company Plan;
(3) there is no Action (including any investigation, audit or other administrative proceeding) an investigation by the IRS, the U.S. Department of Labor, the Pension Benefit Guaranty Corporation, the IRS SEC or any other Governmental Entity Body, nor is any such audit or by any plan participant or beneficiary pendinginvestigation pending or, or to the knowledge of the Company, threatened, relating to the . The Company Plans, any fiduciaries thereof to which the Company is not and could have an indemnification obligation with respect to their duties to the Company Plans or the assets of any of the trusts under any of the Company Plans (other than routine claims for benefits) nor, to the knowledge of the Company, are there facts or circumstances that exist that could not reasonably be expect expected to give rise to any such Actions;
(4) no Company Plan is or, within the preceding six years, has been be subject to Title IV of ERISA or subject either a material liability pursuant to Section 412 of the Code and neither the Company nor any Person that is a member of a “controlled group of corporations” with, or is under “common control” with, or is a member of the same “affiliated service group” with the Company, in each case, as defined in Sections 414(b), (c), (m) or (o) of the Code, maintains or contributes to (or has in the past six years maintained or contributed to) a multiemployer plan as defined in Section 3(37) 502 of ERISA or a Title IV Plan;material Tax imposed pursuant to Section 4975 or 4976 of the Code.
(5f) the Company and its Subsidiaries are not subject to any material liability, including additional contributions, fine, penalties or loss of Tax Deductions as a result of the administration or operation of any Company Each Employee Plan that is a “group health plan” (as such term is defined in Section 5000(b)(1) of the Code);
(6) no Company Plan provides welfare benefits, including death or medical benefits (whether or not insured) beyond retirement or termination of service, other than coverage mandated solely by applicable Law;
(7) none of the Company Plans provides for payment of an amount or provision of a benefit, the increase of a payment or benefit, the payment of a contingent amount or provision of a contingent benefit, or the acceleration of the payment, funding or vesting of an amount or benefit determined or occasioned, in whole or in part, by reason of the execution of this Agreement or the consummation of the transactions contemplated hereby whether alone or together with any other event; and
(8) no amounts payable under the Company Plans will fail to be deductible for federal income tax purposes by virtue of Section 280G of the Code as a result of the occurrence of the transactions contemplated by this Agreement, either alone or in combination with another event.
(c) The Company and its Subsidiaries have not entered into any employment or employment-related agreements (including change in control agreements and offer letters) to which a named individual is a party, other than those set forth on Section 3.13(a) of the Company Disclosure Letter.
(d) Each Company Plan that is part a “nonqualified deferred compensation plan” subject to Section 409A of the Code complies both in form and operation with the requirements of Section 409A of the Code in all material respects.
(g) All contributions required to be made to any Employee Plan by applicable Legal Requirements or otherwise, and all premiums due or payable with respect to insurance policies funding any Employee Plan, have been timely made or paid in full or, to the extent not required to be made or paid on or before the date hereof, have been fully reflected on the financial statements of the Company in accordance with GAAP.
(h) Except to the extent required under Section 601 et seq. of ERISA or 4980B of the Code (or any other similar state or local Legal Requirement), no Acquired Corporation, ERISA Affiliate nor any Employee Plan has any present or future obligation to provide post-employment welfare benefits to or make any payment to, or with respect to, any present or former employee, officer, director or service provider of the Acquired Corporations pursuant to any retiree medical benefit plan or other retiree welfare plan.
(i) Except as provided in Section 1.8, the consummation of the Transactions (including in combination with other events or circumstances) will not (i) entitle any current or former employee, director, officer, independent contractor or other service provider of an Acquired Corporation to severance pay, unemployment compensation or any other material payment, (ii) accelerate the time of payment or vesting, or increase the amount of, compensation or benefits due to any such employee, director, officer, independent contractor, (iii) directly or indirectly cause an Acquired Corporation to transfer or set aside any material assets to fund any payments or benefits under any Employee Plan, or (iv) result in any limitation on the right of an Acquired Corporation to amend, merge, terminate or receive a reversion of assets from any Employee Plan or related trust. Without limiting the generality of the foregoing, no amount paid or payable (whether in cash, in property, or in the form of benefits) by an Acquired Corporation in connection with the Transactions (whether alone or in combination with other events or circumstances) will be an “excess parachute payment” within the meaning of Section 280G of the Code.
(j) No Employee Plan provides for the gross-up or reimbursement of Taxes under Section 4999 or 409A of the Code, or otherwise.
(k) The Company has made available to Parent copies of the Company Equity Plans and the forms of all agreements and instruments relating to or issued under the Company Equity Plans. Each outstanding Company Option has an exercise price equal to or above the fair market value on the date of grant (within the meaning of Section 409A of the Code and related Treasury Department guidance has (iCode) been operated between January 1, 2005 and December 31, 2008, in good faith compliance with Section 409A of the Code and Notice 2005-01 and (ii) since January 1, 2009 (or such later date permitted under applicable guidance), been operated in compliance, and is in documentary compliance, in all material respects, with the requirements of otherwise not subject to Section 409A of the Code.
(el) Neither the Company nor any Subsidiary has a binding commitment to create any additional material Company Plan, or any plan, agreement or arrangement that would be a material Company No Employee Plan if adopted, or to modify or terminate any existing material Company Plan, except as required by applicable Law.
(f) The ESOP is an “employee stock ownership plan” within the meaning of Section 4975(e)(7) of the Code. Neither the Company nor the ESOP has, within the three year period immediately preceding the date of this Agreement, received any inquiry or notice from the IRS or any other governmental agency the effect of which is to question the qualification or status of the ESOP or any transaction entered into by the ESOP or the Company (with respect subject to the ESOP). The ESOP and Legal Requirements of a jurisdiction other than the Company have filed all reports, returns United States (whether or not United States Legal Requirements also apply) or covers employees or other documents in respect service providers of any Acquired Corporation working primarily outside the ESOP which are required to be filed pursuant to the applicable provisions of the Code and ERISA and the regulations thereunder. All loans entered into by the ESOP (the “ESOP Loans”) constitute “exempt loans” under Treasury Regulation Section 54.4975-7(b)(1)(iii). The securities held by the ESOP constitute “employer securities” under ERISA Section 407(d)(1) and Section 409(l) of the Code and “qualifying employer securities” under ERISA Section 407(d)(5) and Section 4975(e)(8) of the CodeUnited States.
Appears in 2 contracts
Sources: Acquisition Agreement, Merger Agreement (IVERIC Bio, Inc.)
Benefit Plans. (ai) Section 3.13(a) of the Company Disclosure Letter contains Schedule 2.15 is a true and complete list of each material Company Plan. For purposes of this Agreement, “Company Plan” means each “-------------- "employee pension benefit plan” " (within the meaning of as defined in Section 3(33(2) of the Employee Retirement Income Security Act of 1974, as amended (“"ERISA”")) (hereinafter a "Pension Plan"), "employee welfare benefit plan" (as defined in Section 3(l) of ERISA, hereinafter a "Welfare Plan"), and each other plan, arrangement or policy relating to stock purchaseoptions, stock optionpurchases, severance, employment, change-in-control, fringe benefit, bonus, incentivecompensation, deferred compensation, employee loan severance, fringe benefits or other employee benefit plan, agreement, program, policy or other arrangement, whether or not subject to ERISA (including any funding mechanism therefor now in effect or required in the future as a result of the transactions contemplated by this Agreement or otherwise), whether written or unwrittenbenefits, in each case (i) maintained or contributed to, or required to be maintained or contributed to, by the Company or any of and its Subsidiaries for current or former directors, employees or consultants of the Company or (ii) under which (A) any employee, director or consultant or former employee, director or consultant of the Company or any of its Subsidiaries has any present or future right to benefits and (B) the Company or any of its Subsidiaries has had or has any present or future liability or obligation to contribute. With respect to each material Company Plan, the Company has furnished or made available to Parent a current, accurate and complete copy thereof, including any amendments, and, to the extent applicable: (i) any related trust agreement or other funding instrument, (ii) the most recent determination, opinion or advisory letter of the Internal Revenue Service (the “IRS”), if applicable, (iii) any summary plan description or other material written communications by the Company or its Subsidiaries to their employees concerning the extent of the benefits provided under a Company Plan and (iv) the most recent (A) Form 5500 and attached schedules, (B) audited financial statements, and (C) actuarial valuation reports.
(b) Except as disclosed in Section 3.13(b) of the Company Disclosure Letter and except as, individually or in the aggregate, has not had, and would not reasonably be expected to have, a Material Adverse Effect on the Company, with respect to the Company Plans:
(1) each Company Plan has been established and administered in accordance with its terms and in compliance with the applicable provisions of ERISA, the Code and all other applicable Laws, and in the six years preceding the date hereof no reportable event, as defined in Section 4043 of ERISA, no prohibited transaction, as described in Section 406 of ERISA or Section 4975 of the Code, or failure to satisfy the minimum funding standards, within the meaning of Section 302 of ERISA and 412 of the Code, has occurred with respect to any Company Plan, and all contributions required to be made under the terms of any Company Plan have been timely made;
(2) each Company Plan intended to be qualified under Section 401(a) of the Code (A) has received a favorable determination, advisory and/or opinion letter, as applicable, from the IRS that it is so qualified, (B) the trust maintained thereunder has been determined to be exempt from taxation under Section 501(a) of the Code and (C) to the Company’s knowledge, nothing has occurred since the date of such letter that could reasonably be expected to cause the loss of such qualified status of such Company Plan;
(3) there is no Action (including any investigation, audit or other administrative proceeding) by the Department of Labor, the Pension Benefit Guaranty Corporation, the IRS or any other Governmental Entity person or by any plan participant or beneficiary pendingentity that, or to the knowledge of the Company, threatened, relating to the Company Plans, any fiduciaries thereof to which the Company could have an indemnification obligation with respect to their duties to the Company Plans or the assets of any of the trusts under any of the Company Plans (other than routine claims for benefits) nor, to the knowledge of the Company, are there facts or circumstances that exist that could reasonably be expect to give rise to any such Actions;
(4) no Company Plan is or, within the preceding six years, has been subject to Title IV of ERISA or subject to Section 412 of the Code and neither the Company nor any Person that is a member of a “controlled group of corporations” with, or is under “common control” with, or is a member of the same “affiliated service group” together with the Company, in each case, is treated as defined in Sections a single employer under Section 414(b), (c), (m) or (o) of the Code (each a "Commonly Controlled Entity") for the benefit of any present or former employees of the Company or any of its Subsidiaries (all the foregoing being herein called "Benefit Plans"). The Company has made available to Parent true, complete and correct copies of (1) each Benefit Plan, (2) the most recent annual report on Form 5500 as filed with the Internal Revenue Service with respect to each applicable Benefit Plan, (3) the most recent summary plan description (or similar document) with respect to each applicable Benefit Plan and (4) each trust agreement and insurance or annuity contract relating to any Benefit Plan.
(ii) Except as disclosed in Schedule 2.15, to the knowledge of the Company, each Benefit Plan has been administered in all material respects in accordance with its terms. Except as disclosed in Schedule 2.15, to the knowledge of the Company, the Company, its Subsidiaries and all the Benefit Plans are in compliance in all material respects with the applicable provisions of ERISA, the Code, maintains and all other Applicable Laws. Except as disclosed in Schedule 2.15, to the knowledge of the Company, there are no investigations by any governmental agency, termination proceedings or contributes to other claims (or has except claims for benefits payable in the past six years maintained normal operation of the Benefit Plans), suits or contributed toproceedings against or involving any Benefit Plan or asserting any rights to or claims for benefits under any Benefit Plan that could give rise to a Material Adverse Effect, and to the knowledge of the Company, there are not any facts that could give rise to a Material Adverse Effect in the event of any such investigation, claim, suit or proceeding.
(iii) Except as disclosed on Schedule 2.15, to the knowledge of the Company: (1) all contributions to the Benefit Plans required to be made by the Company or any of its Subsidiaries in accordance with the terms of the Benefit Plans, any applicable collective bargaining agreement and, when applicable, Section 302 of ERISA or Section 412 of the Code, have been timely made, (2) there has been no application for or waiver of the minimum funding standards imposed by Section 412 of the Code with respect to any Benefit Plan that is a Pension Plan, excluding any Pension Plan which is a multiemployer plan as defined in Section 3(374001(a)(3) of ERISA or (hereinafter a Title IV "Company Pension Plan;") and (3) no Company Pension Plan had an "accumulated funding deficiency" within the meaning of Section 412(a) of the Code as of the end of the most recently completed plan year. All such contributions to the Benefit Plans for any period ending before the Balance Sheet Date are properly accrued and reflected in the Balance Sheet and such contributions since such Balance Sheet Date will be reflected on subsequent balance sheets.
(5iv) Except as disclosed on Schedule 2.15, to the knowledge of the Company, (1) each Company Pension Plan that is intended to be a tax-qualified plan has been the subject of a determination letter from the Internal Revenue Service to the effect that such Company Pension Plan and each related trust is qualified and exempt from Federal income taxes under Sections 401(a) and 501(a), respectively, of the Code, (2) no such determination letter has been revoked, and revocation has not been threatened, (3) no event has occurred and no circumstances exist that would adversely affect the tax-qualification of such Company Pension Plan and (4) such Company Pension Plan has not been amended since the effective date of its most recent determination letter in any respect that might adversely affect its qualification, materially increase its cost or require security under Section 307 of ERISA. The Company has made available to Parent a copy of the most recent determination letter received with respect to each Company Pension Plan for which such a letter has been issued, as well as a copy of any pending application for a determination letter. The Company has also provided to Parent a list of all Company Pension Plan amendments as to which a favorable determination letter has not yet been received.
(v) Schedule 2.15 discloses whether: (1) to the knowledge of the Company, any non-exempt "prohibited transaction" (as defined in Section 4975 of the Code or Section 406 of ERISA) has occurred that involves the assets of any Benefit Plan; (2) to the knowledge of the Company, any Company Pension Plan has been terminated or has been the subject of a "reportable event" (as defined in Section 4043 of ERISA and the regulations thereunder) for which the 30-day notice requirement has not been waived by the Pension Benefit Guaranty Corporation ("PBGC"); and (3) to the knowledge of the Company, the Company, any of its Subsidiaries or any trustee, administrator or other fiduciary of any Benefit Plan has engaged in any transaction or acted in a manner that could, or has failed to act so as to, subject the Company, any such Subsidiary or any trustee, administrator or other fiduciary to any material liability for breach of fiduciary duty under ERISA or any other applicable law.
(vi) Except as disclosed on Schedule 2.15, to the knowledge of the Company, as of the most recent valuation date for each Company Pension Plan that is a "defined benefit pension plan" (as defined in Section 3(35) of ERISA (hereinafter a "Defined Benefit Plan")), there was not any amount of "unfunded benefit liabilities" (as defined in Section 4001(a)(18) of ERISA) under such Defined Benefit Plan, and the Company is not aware of any facts or circumstances that would materially change the funded status of any such Defined Benefit Plan. The Company has made available to Parent the most recent actuarial report or valuation with respect to each Defined Benefit Plan.
(vii) Except as disclosed on Schedule 2.15, to the knowledge of the Company, no Commonly Controlled Entity has incurred any liability to a Pension Plan (other than for contributions not yet due) or to the PBGC (other than for the payment of premiums not yet due) that, when aggregated with other such liabilities, would result in a Material Adverse Effect to the Company, which liability has not been fully paid as of the date hereof if due and payable.
(viii) No Commonly Controlled Entity has (a) engaged in a transaction described in Section 4069 of ERISA that could subject the Company to a material liability at any time after the date hereof or (b) acted in a manner that could, or failed to act so as to, result in material fines, penalties, taxes or related charges under (x) Section 502(c), (i) or (1) of ERISA, (y) Section 4071 of ERISA or (z) Chapter 43 of the Code.
(ix) Except as disclosed in Schedule 2.15, to the knowledge of the Company, no Commonly Controlled Entity has announced an intention to withdraw, but has not yet completed withdrawal, from a "multiemployer plan" (as defined in Section 4001(a)(3) of ERISA). Except as disclosed on Schedule 2.15, to the knowledge of the Company, no action has been taken, and no circumstances exist, that could result in either a partial or complete withdrawal from such a multiemployer plan by any Commonly Controlled Entity. Schedule 2.15 also lists for each Benefit Plan that is a multiemployer plan (excluding the multiemployer plan in respect of the Company's former New York Building Products, Inc. operations) the Company's best estimate, based upon the information supplied to it by each multiemployer plan, of the amount of withdrawal liability that would be incurred if each Commonly Controlled Entity were to make a complete withdrawal from each such plan as of the dates specified in Schedule 2.15. Schedule 2.15 also lists for each Benefit Plan that is a multiemployer plan (excluding the multiemployer plans in respect of the Company's former New York Building Products, Inc., and Bardstown operations) the Company's best estimate, based upon the information supplied to it by each multiemployer plan, of the amount of "unfunded vested benefits" (within the meaning of Section 4211 of ERISA) as of the dates specified in Schedule 2.15. As of the most recent valuation date for the multiemployer plan in respect of the Company's former New York Building Products Inc. operations, to the knowledge of the Company, based upon the information supplied to it by such multiemployer plan, there was not any amount of "unfunded vested benefits" under such plan.
(x) The list of Welfare Plans in Schedule 2.15 discloses whether each Welfare Plan is (i) unfunded, (ii) funded through a "welfare benefit fund", as such term is defined in Section 419(e) of the Code, or other funding mechanism or (iii) insured. Except as disclosed on Schedule 2.15, to the knowledge of the Company, apart from the written provisions of the Welfare Plans disclosed to Parent, there are no understandings, agreements or undertakings, written or oral, that would prevent any such Welfare Plan from being amended or terminated at any time after the Closing Date. The Company and its Subsidiaries are not subject to any material liability, including additional contributions, fine, penalties or loss comply with the applicable requirements of Tax Deductions as a result Section 4980B(f) of the administration or operation of any Company Code with respect to each Benefit Plan that is a “group health plan” (, as such term is defined in Section 5000(b)(1) of the Code);.
(6xi) Except as provided in Section 1.14 with respect to the 1982 Stock Option Plan, the 1992 Stock Option Plan, the Director Option Plan, the 1998 Incentive Compensation Program (the "MICP") and the Savings Plan, and as provided in the employment and severance agreements listed in Schedules 2.11 (a) and 2.15, no Company Plan provides welfare benefits, including death or medical benefits (whether or not insured) beyond retirement or termination of service, other than coverage mandated solely by applicable Law;
(7) none employee of the Company Plans provides for payment or any of an amount its Subsidiaries will be entitled to any additional material benefits or provision of a benefit, the increase of a payment or benefit, the payment of a contingent amount or provision of a contingent benefit, or the any acceleration of the payment, funding time of payment or vesting of an amount or benefit determined or occasioned, in whole or in part, by reason of the execution of this Agreement or the consummation of the transactions contemplated hereby whether alone or together with any other event; and
(8) no amounts payable material benefits under the Company Plans will fail to be deductible for federal income tax purposes by virtue of Section 280G of the Code any Benefit Plan as a result of the occurrence of the transactions contemplated by this Agreement, either alone or in combination with another event.
(cxii) The Company and its Subsidiaries have not entered into any employment or employment-related agreements (including change in control agreements and offer letters) to which a named individual is a party, other than those set forth During the period beginning on Section 3.13(a) of the Company Disclosure Letter.
(d) Each Company Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A of the Code and related Treasury Department guidance has (i) been operated between January 1, 2005 and December 31, 2008, in good faith compliance with Section 409A of the Code and Notice 2005-01 and (ii) since January 1, 2009 (or such later date permitted under applicable guidance), been operated in compliance1995, and is in documentary compliance, in all material respects, with the requirements of Section 409A of the Code.
(e) Neither the Company nor any Subsidiary has a binding commitment to create any additional material Company Plan, or any plan, agreement or arrangement that would be a material Company Plan if adopted, or to modify or terminate any existing material Company Plan, except as required by applicable Law.
(f) The ESOP is an “employee stock ownership plan” within the meaning of Section 4975(e)(7) of the Code. Neither the Company nor the ESOP has, within the three year period immediately preceding ending on the date of this Agreement, received there has been no change (a) in any inquiry actuarial or notice from the IRS or any other governmental agency the effect of which is assumption used to question the qualification or status of the ESOP or any transaction entered into by the ESOP or the Company (calculate funding obligations with respect to any Company Pension Plan or (b) in the ESOP). The ESOP and manner in which contributions to any Company Pension Plan are made or the basis on which such contributions are determined.
(xiii) Except as disclosed on Schedule 2.15, to the knowledge of the Company have filed all reportsand based upon its best estimate, returns any amount that could be received (whether in cash or other documents in respect property or the vesting of property) as a result of any of the ESOP which are required to be filed pursuant to the applicable provisions transactions contemplated by this Agreement by any employee, officer or director of the Code and ERISA and the regulations thereunder. All loans entered into by the ESOP Company or any of its affiliates who is a "disqualified individual" (the “ESOP Loans”) constitute “exempt loans” under as such term is defined in proposed Treasury Regulation Section 54.4975-7(b)(1)(iii). The securities held by the ESOP constitute “employer securities” 1.280G-1) under ERISA any employment, severance or termination agreement, other compensation arrangement or Benefit Plan currently in effect would not be characterized as an "excess parachute payment" (as such term is defined in Section 407(d)(1) and Section 409(l) of the Code and “qualifying employer securities” under ERISA Section 407(d)(5) and Section 4975(e)(8280G(B)(1) of the Code). Schedule 2.15 sets forth (i) the Company's best estimate of the maximum amount that could be paid to each executive officer of Company as a result of the transactions contemplated by this Agreement under all employment, severance and termination agreements, other compensation arrangements and Benefit Plans currently in effect and (ii) the Company's best estimate of the "base amount" (as such term is defined in Section 280(b)(3) of the Code) for each such executive officer calculated as of the date of this Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Bird Corp), Merger Agreement (Bi Expansion Ii Corp)
Benefit Plans. (a) Section 3.13(a4.14(a) of the Company Disclosure Letter contains sets forth a true and complete list list, as of the date hereof, of each material Company Benefit Plan. For purposes of this Agreement, a “Company Benefit Plan” means each an “employee benefit plan” (within the meaning of as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended amended, (“ERISA”)), stock purchase, stock option, severance, employment, change-in-control, fringe benefit, bonus, incentive, deferred compensation, employee loan or other employee benefit plan, agreement, program, policy or other arrangement, whether or not subject to ERISA ERISA, or any other plan, policy, program or agreement (including any funding mechanism therefor now employment, bonus, incentive or deferred compensation, employee loan, note or pledge agreement, equity or equity-based compensation, severance, retention, supplemental retirement, change in effect control or required in the future as a result of the transactions contemplated by this Agreement similar plan, policy, arrangement, program or otherwise), whether written agreement) providing compensation or unwritten, in each case (i) maintained by the Company or other benefits to any of its Subsidiaries for current or former directorsdirector, employees officer, individual consultant, worker or consultants of the Company or (ii) under which (A) any employee, director or consultant or former employee, director or consultant employee of the Company or any of its Subsidiaries has or any present Business Employee, which are maintained, sponsored or future right contributed to benefits and (B) by Inpixon, the Company or any of its their respective Subsidiaries, or to which the Company, Inpixon or any of their respective Subsidiaries has had is a party or has or may have any present liability with respect to any such individuals, and in each case whether or future liability not (i) subject to the Laws of the United States, (ii) in writing or obligation to contribute(iii) funded, but excluding in each case any statutory plan, program or arrangement that is required under applicable law and maintained by any Governmental Authority. With respect to each material Company Benefit Plan, the Company has furnished or made available to Parent a current, accurate and complete copy thereof, including any amendments, andAcquiror, to the extent applicable: , true, complete and correct copies of (iA) any related such Benefit Plan (or, if not written a written summary of its material terms) and all plan documents, trust agreement agreements, insurance Contracts or other funding instrument, (ii) the most recent determination, opinion or advisory letter of the Internal Revenue Service (the “IRS”), if applicable, (iii) any summary plan description or other material written communications by the Company or its Subsidiaries to their employees concerning the extent of the benefits provided under a Company Plan and (iv) the most recent (A) Form 5500 and attached schedules, (B) audited financial statements, and (C) actuarial valuation reports.
(b) Except as disclosed in Section 3.13(b) of the Company Disclosure Letter and except as, individually or in the aggregate, has not had, and would not reasonably be expected to have, a Material Adverse Effect on the Company, with respect to the Company Plans:
(1) each Company Plan has been established and administered in accordance with its terms and in compliance with the applicable provisions of ERISA, the Code vehicles and all other applicable Laws, and in the six years preceding the date hereof no reportable event, as defined in Section 4043 of ERISA, no prohibited transaction, as described in Section 406 of ERISA or Section 4975 of the Code, or failure to satisfy the minimum funding standards, within the meaning of Section 302 of ERISA and 412 of the Code, has occurred with respect to any Company Plan, and all contributions required to be made under the terms of any Company Plan have been timely made;
(2) each Company Plan intended to be qualified under Section 401(a) of the Code (A) has received a favorable determination, advisory and/or opinion letter, as applicable, from the IRS that it is so qualifiedamendments thereto, (B) the trust maintained thereunder has been determined to be exempt from taxation under Section 501(a) most recent summary plan descriptions, including any summary of the Code and material modifications, (C) to the Company’s knowledge, nothing has occurred since the date of such letter that could reasonably be expected to cause the loss of such qualified status of such Company Plan;
three (3) there is no Action most recent annual reports (including any investigationForm 5500 series) filed with the IRS with respect to such Benefit Plan, audit (D) the most recent actuarial report or other administrative proceedingfinancial statement relating to such Benefit Plan, (E) the most recent determination or opinion letter, if any, issued by the Department of LaborIRS with respect to any Benefit Plan, and (F) all material non-ordinary course communications received from or sent to the IRS, the Pension Benefit Guaranty Corporation, the IRS Department of Labor or any other applicable Governmental Entity or by any plan participant or beneficiary pending, or to the knowledge of the Company, threatened, Authority relating to the Company Plans, any fiduciaries thereof to which the Company could have an indemnification obligation with respect to their duties to the Company Plans or the assets of any of the trusts under any of the Company Plans (other than routine claims for benefits) nor, to the knowledge of the Company, are there facts or circumstances that exist that could reasonably be expect to give rise to any such Actions;
(4) no Company Plan is or, within the preceding six years, has been subject to Title IV of ERISA or subject to Section 412 of the Code and neither the Company nor any Person that is a member of a “controlled group of corporations” with, or is under “common control” with, or is a member of the same “affiliated service group” with the Company, in each case, as defined in Sections 414(b), (c), (m) or (o) of the Code, maintains or contributes to (or has in the past six years maintained or contributed to) a multiemployer plan as defined in Section 3(37) of ERISA or a Title IV Benefit Plan;
(5) the Company and its Subsidiaries are not subject to any material liability, including additional contributions, fine, penalties or loss of Tax Deductions as a result of the administration or operation of any Company Plan that is a “group health plan” (as such term is defined in Section 5000(b)(1) of the Code);
(6) no Company Plan provides welfare benefits, including death or medical benefits (whether or not insured) beyond retirement or termination of service, other than coverage mandated solely by applicable Law;
(7) none of the Company Plans provides for payment of an amount or provision of a benefit, the increase of a payment or benefit, the payment of a contingent amount or provision of a contingent benefit, or the acceleration of the payment, funding or vesting of an amount or benefit determined or occasioned, in whole or in part, by reason of the execution of this Agreement or the consummation of the transactions contemplated hereby whether alone or together with any other event; and
(8) no amounts payable under the Company Plans will fail to be deductible for federal income tax purposes by virtue of Section 280G of the Code as a result of the occurrence of the transactions contemplated by this Agreement, either alone or in combination with another event.
(c) The Company and its Subsidiaries have not entered into any employment or employment-related agreements (including change in control agreements and offer letters) to which a named individual is a party, other than those set forth on Section 3.13(a) of the Company Disclosure Letter.
(d) Each Company Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A of the Code and related Treasury Department guidance has (i) been operated between January 1, 2005 and December 31, 2008, in good faith compliance with Section 409A of the Code and Notice 2005-01 and (ii) since January 1, 2009 (or such later date permitted under applicable guidance), been operated in compliance, and is in documentary compliance, in all material respects, with the requirements of Section 409A of the Code.
(e) Neither the Company nor any Subsidiary has a binding commitment to create any additional material Company Plan, or any plan, agreement or arrangement that would be a material Company Plan if adopted, or to modify or terminate any existing material Company Plan, except as required by applicable Law.
(f) The ESOP is an “employee stock ownership plan” within the meaning of Section 4975(e)(7) of the Code. Neither the Company nor the ESOP has, within the three year period immediately preceding the date of this Agreement, received any inquiry or notice from the IRS or any other governmental agency the effect of which is to question the qualification or status of the ESOP or any transaction entered into by the ESOP or the Company (with respect to the ESOP). The ESOP and the Company have filed all reports, returns or other documents in respect of the ESOP which are required to be filed pursuant to the applicable provisions of the Code and ERISA and the regulations thereunder. All loans entered into by the ESOP (the “ESOP Loans”) constitute “exempt loans” under Treasury Regulation Section 54.4975-7(b)(1)(iii). The securities held by the ESOP constitute “employer securities” under ERISA Section 407(d)(1) and Section 409(l) of the Code and “qualifying employer securities” under ERISA Section 407(d)(5) and Section 4975(e)(8) of the Code.
Appears in 2 contracts
Sources: Merger Agreement (KINS Technology Group, Inc.), Merger Agreement (Inpixon)
Benefit Plans. (a) Section 3.13(a2.16(a) of the Company Disclosure Letter contains a true Schedule sets forth an accurate and complete list of the material Employee Plans and separately denotes each material Employee Plan that constitutes a Non-U.S. Plan; provided, however, that the following shall not be individually listed: (i) individual employment agreements, offer letters or consulting agreements that (A) do not vary from a form of employment agreement, offer letter or consulting agreement that has been made available to Parent, (B) do not provide for any retention or transaction bonus payments, and (C) may be terminated at any time without any liability; and (ii) award agreements that do not vary from a form of award agreement that has been made available to Parent.
(b) The Company has made available to Parent with respect to each material Employee Plan accurate and complete copies of (i) all plan documents and all amendments thereto, and in the case of unwritten material Employee Plans, written descriptions thereof, (ii) the most recent annual actuarial valuation, if any, and the most recent annual report (Form Series 5500 and all schedules and financial statements attached thereto), (iii) all trust agreements, insurance contracts and other documents relating to the funding or payment of benefits under any Employee Plan. For purposes , (iv) all material correspondence to or from the IRS, the United States Department of this AgreementLabor or any other Governmental Body with respect to an Employee Plan dated within the last six years, (v) all determination letters, rulings, opinion letters, information letters or advisory opinions issued by the IRS or the United States Department of Labor, and (vi) the most recent summary plan descriptions and any material modifications thereto.
(c) Neither the Company nor any ERISA Affiliate currently has, and at no time in the past has had, an obligation to contribute to a “Company Plandefined benefit plan” means each (as defined in Section 3(35) of ERISA), a pension plan subject to the funding standards of Section 302 of ERISA or Section 412 of the Code, a “employee benefit multiemployer plan” (as defined in Section 3(37) of ERISA or Section 414(f) of the Code), a “multiple employer plan” (within the meaning of Section 3(3210(a) of ERISA or Section 413(c) of the Employee Retirement Income Security Act of 1974, as amended Code) or a “multiple employer welfare arrangement” (“ERISA”)), stock purchase, stock option, severance, employment, change-in-control, fringe benefit, bonus, incentive, deferred compensation, employee loan or other employee benefit plan, agreement, program, policy or other arrangement, whether or not subject to ERISA (including any funding mechanism therefor now in effect or required in the future as a result of the transactions contemplated by this Agreement or otherwise), whether written or unwritten, in each case (i) maintained by the Company or any of its Subsidiaries for current or former directors, employees or consultants of the Company or (ii) under which (A) any employee, director or consultant or former employee, director or consultant of the Company or any of its Subsidiaries has any present or future right to benefits and (B) the Company or any of its Subsidiaries has had or has any present or future liability or obligation to contribute. With respect to each material Company Plan, the Company has furnished or made available to Parent a current, accurate and complete copy thereof, including any amendments, and, to the extent applicable: (i) any related trust agreement or other funding instrument, (ii) the most recent determination, opinion or advisory letter of the Internal Revenue Service (the “IRS”), if applicable, (iii) any summary plan description or other material written communications by the Company or its Subsidiaries to their employees concerning the extent of the benefits provided under a Company Plan and (iv) the most recent (A) Form 5500 and attached schedules, (B) audited financial statements, and (C) actuarial valuation reports.
(b) Except as disclosed in Section 3.13(b) of the Company Disclosure Letter and except as, individually or in the aggregate, has not had, and would not reasonably be expected to have, a Material Adverse Effect on the Company, with respect to the Company Plans:
(1) each Company Plan has been established and administered in accordance with its terms and in compliance with the applicable provisions of ERISA, the Code and all other applicable Laws, and in the six years preceding the date hereof no reportable event, as defined in Section 4043 3(40) of ERISA, ). There are no prohibited transaction, as described in Section 406 of ERISA unfunded obligations to make payments to or Section 4975 of the Code, or failure to satisfy the minimum funding standards, within the meaning of Section 302 of ERISA and 412 of the Code, has occurred with respect relating to any Company Associate on early retirement or redundancy or other termination of employment under any Employee Plan, and all contributions required to be made under the terms of any Company Plan have been timely made;.
(2d) each Company Plan Each of the Employee Plans that is intended to be qualified under Section 401(a) of the Code (A) has received obtained or is entitled to rely upon a favorable determination, advisory and/or determination letter (or opinion letter, if applicable) as applicable, from to its qualified status under the IRS that it is so qualified, Code (B) the and each trust maintained created thereunder has been determined by the IRS to be exempt from taxation Tax under the provisions of Section 501(a) of the Code), and there are no existing circumstances or any events that have occurred that would reasonably be expected to materially adversely affect the qualified status of any such Employee Plan.
(e) Each of the Employee Plans is now and has been maintained, operated and administered in all material respects in compliance with its terms and all applicable Legal Requirements, including but not limited to ERISA and the Code. There have been no prohibited transactions or breaches of any of the duties imposed on “fiduciaries” (within the meaning of Section 3(21) of ERISA) by ERISA with respect to any of the Employee Plans that could result in any material liability or material excise Tax under ERISA or the Code being imposed on any Acquired Company.
(f) With respect to each group health plan benefiting any current or former employee of any Acquired Company or an ERISA Affiliate that is subject to Section 4980B of the Code, each Acquired Company and each ERISA Affiliate has complied in all material respects with the continuation coverage requirements of Section 4980B of the Code and Part 6 of Subtitle B of Title I of ERISA. No Employee Plan provides health, welfare or retirement benefits to any individual who is not a current or former employee of an Acquired Company or the dependents or other beneficiaries of any such current or former employee.
(Cg) None of the Acquired Companies has agreed or committed to institute any plan, program, arrangement or agreement for the benefit of any Company Associates other than the Employee Plans identified pursuant to Section 2.16(a), or to make any amendments to any of the Employee Plans.
(h) There is no pending or, to the knowledge of the Company, threatened claim (other than routine claims for benefits in the ordinary course of business) or Legal Proceeding with respect to any Employee Plan nor, to the knowledge of the Company, is there any basis for one. No Employee Plan is under audit or, to the Company’s knowledge, nothing has occurred since the date subject of such letter that could reasonably be expected to cause the loss of such qualified status of such Company Plan;
(3) there is no Action (including any investigation, audit or other administrative proceeding) an investigation by the IRS, the U.S. Department of Labor, the Pension Benefit Guaranty Corporation, the IRS SEC or any other Governmental Entity Body, nor is any such audit or by any plan participant or beneficiary pendinginvestigation pending or, or to the knowledge of the Company, threatened. The Company is not and could not reasonably be expected to be subject to either a material liability pursuant to Section 502 of ERISA or a material Tax imposed pursuant to Section 4975 or 4976 of the Code.
(i) Each Employee Plan and any other payment or arrangement for which any Acquired Company has liability that is subject to Section 409A of the Code is, relating in all material respects, in documentary and operational compliance with Section 409A of the Code.
(j) All (i) insurance premiums required to be paid with respect to, (ii) benefits, expenses and other amounts due and payable under, and (iii) contributions, transfers or payments required to be made to, any Employee Plan on or prior to the Closing Date will have been paid, made or accrued on or prior to the Closing Date in all material respects.
(k) Except to the extent required under Section 601 et seq. of ERISA or 4980B of the Code (or any other similar state or local Legal Requirement), no Acquired Company Plansnor any Employee Plan has any present or future obligation to provide post-employment death, medical or welfare benefits to or make any payment to, or with respect to, any fiduciaries thereof present or former employee, officer, director or service provider of the Acquired Companies pursuant to which any retiree medical benefit plan or similar plan.
(l) Except as provided in Section 1.8, neither the execution or delivery of this Agreement nor the consummation of the Transactions would reasonably be expected to, either alone or in conjunction with any other event (whether contingent or otherwise) (i) constitute a stated triggering event under any Employee Plan that will result in any payment (whether of severance pay or otherwise) becoming due to any Company could have an indemnification obligation Associate who is a natural Person (or dependents of such Persons) of any Acquired Company, (ii) accelerate the time of payment or vesting or increase the amount of compensation due to any Company Associate who is a natural Person (or dependents of such Persons) of any Acquired Company, or (iii) result in any forgiveness of Indebtedness with respect to their duties any Company Associate who is a natural Person (or dependents of such Persons) of any Acquired Company, (iv) trigger any funding obligation under any Employee Plan or (v) impose any restrictions or limitations on the rights of any Acquired Company to the Company Plans administer, amend or terminate any Employee Plan other than as imposed by any Legal Requirement.
(m) No amount, economic benefit or other entitlement that could be received (whether in cash or property or the assets vesting of property) as a result of any of the trusts Transactions (alone or in combination with any other event) by any “disqualified individual” (as such term is defined in Treasury Regulation Section 1.280G-1) with respect to the Company or any of its Affiliates under any employment, severance or termination agreement, other compensation arrangement or Employee Plan in effect as of the Company Plans (other than routine claims for benefits) nor, to the knowledge of the Company, are there facts or circumstances that exist that could reasonably Closing Date would be expect to give rise to any such Actions;
(4) no Company Plan is or, within the preceding six years, has been subject to Title IV of ERISA or subject to Section 412 of the Code and neither the Company nor any Person that is a member of a characterized as an “controlled group of corporations” with, or is under “common control” with, or is a member of the same “affiliated service group” with the Company, in each case, as defined in Sections 414(b), (c), (m) or (o) of the Code, maintains or contributes to (or has in the past six years maintained or contributed to) a multiemployer plan as defined in Section 3(37) of ERISA or a Title IV Plan;
(5) the Company and its Subsidiaries are not subject to any material liability, including additional contributions, fine, penalties or loss of Tax Deductions as a result of the administration or operation of any Company Plan that is a “group health planexcess parachute payment” (as such term is defined in Section 5000(b)(1280G(b)(1) of the Code);.
(6n) no Company No Employee Plan provides welfare benefitsfor the gross-up, including death reimbursement or medical benefits (whether or not insured) beyond retirement or termination of service, other than coverage mandated solely by applicable Law;
(7) none of the Company Plans provides obligation to make whole for payment of an amount or provision of a benefit, the increase of a payment or benefit, the payment of a contingent amount Taxes under Section 4999 or provision of a contingent benefit, or the acceleration of the payment, funding or vesting of an amount or benefit determined or occasioned, in whole or in part, by reason of the execution of this Agreement or the consummation of the transactions contemplated hereby whether alone or together with any other event; and
(8) no amounts payable under the Company Plans will fail to be deductible for federal income tax purposes by virtue of Section 280G of the Code as a result of the occurrence of the transactions contemplated by this Agreement, either alone or in combination with another event.
(c) The Company and its Subsidiaries have not entered into any employment or employment-related agreements (including change in control agreements and offer letters) to which a named individual is a party, other than those set forth on Section 3.13(a) of the Company Disclosure Letter.
(d) Each Company Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A of the Code and related Treasury Department guidance has (i) been operated between January 1, 2005 and December 31, 2008, in good faith compliance with Section 409A of the Code and Notice 2005-01 and (ii) since January 1, 2009 (or such later date permitted under applicable guidance), been operated in compliance, and is in documentary compliance, in all material respects, with the requirements of Section 409A of the Code.
(eo) Neither Each Non-U.S. Plan complies with all applicable Legal Requirements (including applicable Legal Requirements regarding the Company nor any Subsidiary has a binding commitment to create any additional material Company Planform, or any plan, agreement or arrangement that would be a material Company Plan if adopted, or to modify or terminate any existing material Company Plan, except as required by applicable Law.
(f) The ESOP is an “employee stock ownership plan” within the meaning of Section 4975(e)(7) funding and operation of the CodeNon-U.S. Plan) in all material respects. Neither The financial statements accurately reflect the Company nor Non-U.S. Plan liabilities and accruals for contributions required to be paid to the ESOP hasNon-U.S. Plans in all material respects, within in accordance with applicable generally accepted accounting principles consistently applied. All contributions required to have been made to all Non-U.S. Plans on or prior to the three year period immediately preceding Closing Date will have been made on or prior to the date of this AgreementClosing Date in all material respects. There are no Legal Proceedings pending or, received any inquiry or notice from to the IRS or any other governmental agency the effect of which is to question the qualification or status knowledge of the ESOP or any transaction entered into by the ESOP or the Company (Company, threatened with respect to the ESOPNon-U.S. Plans (other than routine claims for benefits). The ESOP There have not occurred, nor are there continuing, any transactions or breaches of fiduciary duty under applicable Legal Requirements with respect to any Non-U.S. Plan which would reasonably be likely to have a material and adverse effect on (i) any Non-U.S. Plan, or (ii) the condition of the Company, any of its Subsidiaries or any ERISA Affiliate.
(p) With respect to any insurance policy providing funding for benefits under any Employee Plan, there is no liability of any Acquired Company have filed all reportsin the nature of a retroactive rate adjustment, returns loss sharing arrangement or other documents in respect of actual or contingent liability, nor would there be any such liability if such insurance policy was terminated on the ESOP which are required to be filed pursuant to the applicable provisions of the Code and ERISA and the regulations thereunder. All loans entered into by the ESOP (the “ESOP Loans”) constitute “exempt loans” under Treasury Regulation Section 54.4975-7(b)(1)(iii). The securities held by the ESOP constitute “employer securities” under ERISA Section 407(d)(1) and Section 409(l) of the Code and “qualifying employer securities” under ERISA Section 407(d)(5) and Section 4975(e)(8) of the CodeClosing Date.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Biomarin Pharmaceutical Inc), Merger Agreement (Amicus Therapeutics, Inc.)
Benefit Plans. (a) Section 3.13(a) of the The Company Disclosure Letter contains has provided to Parent a true and complete list of each material Company Plan. For purposes of this Agreement, “Company Plan” means each “employee benefit plan” (within the meaning of Section section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”“)), “multiemployer plans” (within the meaning of ERISA section 3(37)), and all stock purchase, stock option, severance, employment, change-in-control, fringe benefit, bonus, incentive, deferred compensation, employee loan or compensation and all other employee benefit planplans, agreementagreements, programprograms, policy policies or other arrangementarrangements, whether or not subject to ERISA (including any funding mechanism therefor now in effect or required in the future as a result of the transactions contemplated by this Agreement or otherwise), whether written or unwritten, in each case (i) maintained by the Company or under which any of its Subsidiaries for current employee or former directors, employees or consultants employee of the Company or (ii) under which (A) any employee, director or consultant or former employee, director or consultant of the Company or any of its Subsidiaries has any present or future right to benefits and (B) or the Company or any of its Subsidiaries has had or has any present or future liability or obligation liability. All such plans, agreements, programs, policies and arrangements shall be collectively referred to contribute. as the “Company Plans.” With respect to each material Company Plan, the Company has furnished or made available to Parent a current, accurate and complete copy thereof, including any amendments, thereof and, to the extent applicable: (i) any related trust agreement or other funding instrument, (ii) the most recent determination, opinion or advisory determination letter of the Internal Revenue Service (the “IRS”“), if applicable, (iii) any summary plan description or and other material written communications (or a description of any oral communications) by the Company or its Subsidiaries to their employees concerning the extent of the benefits provided under a Company Plan and (iv) for the two most recent years (A) the Form 5500 and attached schedules, (B) audited financial statements, and (C) actuarial valuation reports, if applicable, and (D) attorney’s response to an auditor’s request for information, if applicable.
(b) Except as disclosed in Each Company Plan for which the Company is the plan sponsor intended to be qualified under Section 3.13(b401(a) of the Company Disclosure Letter and except asCode has received a favorable determination, individually or in advisory and/or opinion letter, as applicable, from the aggregateIRS that it is so qualified and, to the knowledge of the Company, nothing has not had, and occurred since the date of such letter that would not reasonably be expected to have, cause the loss of such qualified status of such Company Plan.
(c) No Company Plan is a Material Adverse Effect on multiemployer plan (as defined in Section 3(37) of ERISA) or is subject to Section 412 or 430 of the Company, with Code or Title IV of ERISA.
(d) With respect to the Company Plans:
(1i) each Company Plan for which the Company is the plan sponsor has been established and administered in accordance with its terms and in material compliance with the applicable provisions of ERISA, the Code Code, and all other applicable Laws, and in the six years preceding the date hereof no reportable event, as defined in Section 4043 of ERISA, to the Company’s knowledge, no prohibited transaction, as described in Section 406 of ERISA or Section 4975 of the Code, or failure to satisfy the minimum accumulated funding standardsdeficiency, within the meaning of as defined in Section 302 of ERISA and 412 of the Code, has occurred with respect to any such Company Plan, and all contributions required to be made under the terms of any Company Plan have been timely made;
(2) each Company Plan intended to be qualified under Section 401(a) of the Code (A) has received a favorable determination, advisory and/or opinion letter, as applicable, from the IRS that it is so qualified, (B) the trust maintained thereunder has been determined to be exempt from taxation under Section 501(a) of the Code and (C) to the Company’s knowledge, nothing has occurred since the date of such letter that could reasonably be expected to cause the loss of such qualified status of such Company Plan;
(3ii) there is no Action (including any investigation, audit or other administrative proceeding) by the Department of Labor, the Pension Benefit Guaranty Corporation, the IRS or any other Governmental Entity or by any plan participant or beneficiary pending, or to the knowledge of the Company, threatened, relating to the Company Plans, any fiduciaries thereof to which the Company could have an indemnification obligation with respect to their duties to the Company Plans or the assets of any of the trusts under any of the Company Plans (other than routine claims for benefits) nor, to the knowledge of the Company, are there facts or circumstances that exist that could reasonably be expect to give rise to any such Actions;
(4iii) no Company Plan is or, within the preceding six years, has been subject to Title IV of ERISA or subject to Section 412 none of the Code Company and neither the Company nor any Person that is a member its Subsidiaries or members of a “controlled group of corporations” with, or is under “common control” with, or is a member of the same “affiliated service group” with the Company, in each case, their Controlled Group (as defined in Sections 414(b), (c), (mERISA) has incurred any direct or (o) of the Code, maintains or contributes to (or has in the past six years maintained or contributed to) a multiemployer plan as defined in Section 3(37) of indirect material liability under ERISA or a Title IV Planthe Code in connection with the termination of, withdrawal from or failure to fund, any Company Plan or other retirement plan or arrangement, and no fact or event exists that would reasonably be expected to give rise to any such liability;
(5iv) the Company and its Subsidiaries are do not subject to any material liability, including additional contributions, fine, penalties or loss of Tax Deductions as a result of the administration or operation of maintain any Company Plan that is a “group health plan” (as such term is defined in Section 5000(b)(1) of the Code);) that has not been administered and operated in all material respects in compliance with the applicable requirements of Section 601 of ERISA and Section 4980B(b) of the Code, and the Company and its Subsidiaries are not subject to any material liability, including additional contributions, fines, penalties or loss of Tax deduction as a result of such administration and operation.
(6e) no Company Plan provides welfare benefits, including death or medical benefits (whether or not insured) beyond retirement or termination of service, other than coverage mandated solely by applicable Law;
(7) none None of the Company Plans provides for payment of an amount or provision of a benefit, the increase of a payment or benefitbenefit amount, the payment of a contingent amount or provision of a contingent benefit, benefit or the acceleration of the payment, funding payment or vesting of an amount or a benefit determined or occasioned, in whole or in part, by reason of the execution of this Agreement or the consummation of the transactions contemplated hereby whether alone hereby. No amount or together benefit that could be received by any “disqualified individual” (as defined in Treasury Regulation Section 1.280G-1) with any other event; and
(8) no amounts payable under respect to the Company Plans will fail to be deductible for federal income tax purposes by virtue of Section 280G of the Code as a result of the occurrence of or any Subsidiary in connection with the transactions contemplated by this Agreement, either Agreement (alone or in combination with another any other event, and whether pursuant to a Company Plan or otherwise) could be characterized as an “excess parachute payment” (as defined in Section 280G(b)(l) of the Code).
(cf) The No Company and its Subsidiaries have not entered into any Plan provides for post-employment or employment-related agreements (including change in control agreements and offer letters) welfare benefits except to which a named individual is a party, other than those set forth on the extent required by Section 3.13(a) 4980B of the Company Disclosure LetterCode or applicable state Law.
(dg) Each Company Plan that is a “nonqualified deferred compensation plan” within the meaning of subject to Section 409A of the Code has materially complied in form and related Treasury Department guidance has (i) been operated between January 1, 2005 and December 31, 2008, in good faith compliance with Section 409A of the Code and Notice 2005-01 and (ii) since January 1, 2009 (or such later date permitted under applicable guidance), been operated in compliance, and is in documentary compliance, in all material respects, operation with the requirements of Section 409A of the Code.
(e) Neither . No individual is entitled to any gross-up, make-whole or other additional payment from the Company nor any Subsidiary has a binding commitment to create any additional material Company Plan, or any planof its Subsidiaries in respect of any Tax (including federal, agreement state, local or arrangement that would be a material Company Plan if adoptedforeign income, excise or to modify or terminate any existing material Company Plan, except as required by applicable Law.
other Taxes (f) The ESOP is an “employee stock ownership plan” within the meaning of including Taxes imposed under Section 4975(e)(7) 409A and 4999 of the Code. Neither the Company nor the ESOP has, within the three year period immediately preceding the date of this Agreement, received any inquiry )) or notice from the IRS interest or any other governmental agency the effect of which is to question the qualification or status of the ESOP or any transaction entered into by the ESOP or the Company (with respect to the ESOP). The ESOP and the Company have filed all reports, returns or other documents in respect of the ESOP which are required to be filed pursuant to the applicable provisions of the Code and ERISA and the regulations thereunder. All loans entered into by the ESOP (the “ESOP Loans”) constitute “exempt loans” under Treasury Regulation Section 54.4975-7(b)(1)(iii). The securities held by the ESOP constitute “employer securities” under ERISA Section 407(d)(1) and Section 409(l) of the Code and “qualifying employer securities” under ERISA Section 407(d)(5) and Section 4975(e)(8) of the Codepenalty related thereto.
Appears in 2 contracts
Sources: Merger Agreement (Schawk Inc), Merger Agreement (Matthews International Corp)
Benefit Plans. (a) Section 3.13(a3.12(a) of the Company Disclosure Letter contains a true and complete list of each material Company Plan. For purposes of this Agreement, “Company Plan” means each “employee benefit plan” (within the meaning of Section section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), whether or not subject to ERISA), “multiemployer plan” (within the meaning of ERISA section 3(37)), and all stock purchase, stock option, phantom stock or other equity-based plan, severance, employment, collective bargaining, change-in-control, fringe benefit, bonus, incentive, deferred compensation, employee loan supplemental retirement, health, life, or disability insurance, dependent care and all other employee benefit planand compensation plans, agreementagreements, programprograms, policy policies or other arrangementarrangements, whether or not subject to ERISA (including any funding mechanism therefor now in effect or required in the future as a result of the transactions contemplated by this Agreement Transactions or otherwise), whether formal or informal, written or unwrittenoral, in each case (i) maintained by the Company legally binding or any of its Subsidiaries for current or former directorsnot, employees or consultants of the Company or (ii) under which (A) any employee, director or consultant current or former employee, director or individual consultant of the Company or its Subsidiaries (or any of its Subsidiaries their dependents) has any present or future right to compensation or benefits and (B) or that the Company or any of its Subsidiaries has had sponsors or maintains, is making contributions to or has any present or future liability or obligation (contingent or otherwise) or with respect to contributewhich it is otherwise bound. All such plans, agreements, programs, policies and arrangements shall be collectively referred to as the “Company Plans.” The Company has provided or made available to Parent a current, accurate and complete copy of each material Company Plan, or if such Company Plan is not in written form, a written summary of all of the material terms of such Company Plan. With respect to each material Company Plan, the Company has furnished or made available to Parent a current, accurate and complete copy thereof, including any amendments, andof, to the extent applicable: (i) any related trust agreement or other funding instrument, (ii) the most recent determination, opinion or advisory determination letter of the Internal Revenue Service (the “IRS”), if applicable, (iii) any the current summary plan description or other description, any summaries of material written communications by the Company or its Subsidiaries to their employees concerning the extent of the benefits provided under a Company Plan modifications thereto, and (iv) for the most recent year (A) the Form 5500 and attached schedules, (B) audited financial statements, and (C) actuarial valuation reports.
(b) Except as disclosed in Section 3.13(b) of the Company Disclosure Letter and except as, individually or in the aggregate, has not had, and would not reasonably be expected to have, a Material Adverse Effect on Neither the Company, its Subsidiaries or any member of their “Controlled Group” (defined as any organization which is a member of a controlled, affiliated or otherwise related group of entities within the meaning of Code Sections 414(b), (c), (m) or (o)) has ever sponsored, maintained, contributed to or been required to contribute to or incurred any liability (contingent or otherwise) with respect to: (i) a “multiemployer plan” (within the meaning of ERISA section 3(37)), (ii) an “employee pension benefit plan,” within the meaning of Section 3(2) of ERISA (“Pension Plan”) that is subject to Title IV of ERISA or Section 412 of the Code, (iii) a Pension Plan which is a “multiple employer plan” as defined in Section 413 of the Code, or (iv) a “funded welfare plan” within the meaning of Section 419 of the Code.
(c) With respect to the Company Plans:
(1i) each Company Plan has been established complies in all material respects in form and administered in accordance operation with its terms and in compliance with the applicable provisions of ERISA, ERISA and the Code and all other applicable Laws, and in the six years preceding the date hereof legal requirements;
(ii) no reportable event, as defined in Section 4043 of ERISAERISA and for which reporting has not been waived under applicable guidance, no non-exempt prohibited transaction, as described in Section 406 of ERISA or Section 4975 of the Code, or failure to satisfy the minimum no accumulated funding standardsdeficiency, within the meaning of as defined in Section 302 of ERISA and 412 of the Code, has occurred with respect to any Company Plan, and all contributions required to be made under the terms of any Company Plan have been timely made;
(2iii) each Company Plan intended to be qualified under Section 401(a) of the Code (A) has received a favorable determination, advisory and/or opinion letter, as applicable, from the IRS that it is so qualified, (B) the trust maintained thereunder has been determined to be exempt from taxation under Section 501(a) of the Code qualified and (C) to the Company’s knowledge, nothing has occurred since the date of such letter that could would reasonably be expected to cause the loss of the sponsor’s ability to rely upon such letter, and nothing has occurred that would reasonably be expected to result in the loss of the qualified status of such Company Plan;
(3iv) there is no Action (including any investigation, audit or other administrative proceeding) by the Department of Labor, the Pension Benefit Guaranty CorporationCorporation (the “PBGC”), the IRS or any other Governmental Entity or by any plan participant or beneficiary pending, or to the knowledge of the Company, threatened, relating to the Company Plans, any fiduciaries thereof to which the Company could have an indemnification obligation with respect to their duties to the Company Plans or the assets of any of the trusts under any of the Company Plans (other than routine claims for benefits) nor, to the knowledge of the Company, nor are there facts or circumstances that exist that could reasonably give rise to any such actions;
(v) the Company has not received any written communication from the PBGC with respect to any Company Plan subject to Title IV of ERISA concerning the funded status of any such Company Plan;
(vi) none of the Company, its Subsidiaries or any member of their Controlled Group has incurred any material direct or indirect liability under ERISA, the Code or other applicable Laws in connection with the termination of, withdrawal from or failure to fund, any Company Plan or other retirement plan or arrangement, and no fact or event exists that would reasonably be expect expected to give rise to any such Actionsmaterial liability;
(4) no Company Plan is or, within the preceding six years, has been subject to Title IV of ERISA or subject to Section 412 of the Code and neither the Company nor any Person that is a member of a “controlled group of corporations” with, or is under “common control” with, or is a member of the same “affiliated service group” with the Company, in each case, as defined in Sections 414(b), (c), (m) or (o) of the Code, maintains or contributes to (or has in the past six years maintained or contributed to) a multiemployer plan as defined in Section 3(37) of ERISA or a Title IV Plan;
(5vii) the Company and its Subsidiaries are do not subject to any material liability, including additional contributions, fine, penalties or loss of Tax Deductions as a result of the administration or operation of maintain any Company Plan that is a “group health plan” (as such term is defined in Section 5000(b)(1) of the Code)) that has not been administered and operated in all material respects in compliance with the applicable requirements of Section 601, et seq. of ERISA and Section 4980B(b) of the Code, and the Company and its Subsidiaries are not subject to any liability, including additional contributions, fines, penalties or loss of Tax deduction as a result of such administration and operation;
(6) no Company Plan provides welfare benefits, including death or medical benefits (whether or not insured) beyond retirement or termination of service, other than coverage mandated solely by applicable Law;
(7viii) none of the Company Plans provides currently provides, or reflects or represents any liability to provide post-termination or retiree health or life insurance benefits to any person for payment any reason, except as may be required by Section 601, et seq. of an amount ERISA and Section 4980B(b) of the Code or provision other applicable similar law regarding health care coverage continuation (collectively “COBRA”), and none of the Company or its Subsidiaries has any liability to provide post-termination or retiree health or life insurance benefits to any person or ever represented, promised or contracted to any employee or former employee of the Company (either individually or to Company employees as a benefitgroup) or any other person that such employee(s) or other person would be provided with post-termination or retiree health or life insurance benefits, except to the extent required by statute or except with respect to a contractual obligation to reimburse any premiums such person may pay in order to obtain health coverage under COBRA;
(ix) except as contemplated by this Agreement, the increase of a payment or benefit, the payment of a contingent amount or provision of a contingent benefit, or the acceleration of the payment, funding or vesting of an amount or benefit determined or occasioned, in whole or in part, by reason of the execution and delivery of this Agreement or and the consummation of the transactions contemplated hereby whether alone or together with any other event; and
(8) no amounts payable under the Company Plans Transactions will fail to be deductible for federal income tax purposes by virtue of Section 280G of the Code as a result of the occurrence of the transactions contemplated by this Agreementnot, either alone or in combination with another any other event.
, (cA) The Company and its Subsidiaries have not entered into entitle any employment current or employment-related agreements (including change in control agreements and offer letters) to which a named former employee, officer, director or individual is a party, other than those set forth on Section 3.13(a) consultant of the Company Disclosure Letteror any Subsidiary to severance pay, unemployment compensation or any other similar termination payment, or (B) accelerate the time of payment or vesting, or increase the amount of or otherwise enhance any benefit due any such employee, officer, director or individual consultant.
(d) Neither the Company nor any Subsidiary is a party to any agreement, contract, arrangement or plan (including any Company Plan) that may reasonably be expected to result, separately or in the aggregate, in connection with the Transactions (either alone or in combination with any other events), in the payment of any “parachute payments” within the meaning of Section 280G of the Code. There is no agreement, plan or other arrangement to which any of the Company or any Subsidiary is a party or by which any of them is otherwise bound to compensate any person in respect of Taxes or other liabilities incurred with respect to Section 409A or 4999 of the Code.
(e) Each Company Plan that is constitutes in any part a “nonqualified deferred compensation plan” within the meaning of Section 409A(d)(1) of the Code (a “Nonqualified Deferred Compensation Plan”) subject to Section 409A of the Code and related Treasury Department guidance has (i) been operated between January 1, 2005 and December 31, 2008, maintained in good faith compliance with Section 409A of the Code and Notice 2005the regulations and other administrative guidance promulgated thereunder. No Participant is entitled to any gross-01 and (ii) since January 1up, 2009 (make-whole or such later date permitted other additional payment from the Company or any of its Subsidiaries in respect of any Tax imposed under applicable guidance), been operated in compliance, and is in documentary compliance, in all material respects, with the requirements of Section 409A or 4999 of the Code.
(e) Neither the Company nor any Subsidiary has a binding commitment to create any additional material Company Plan, Code or any plan, agreement interest or arrangement that would be a material Company Plan if adopted, or to modify or terminate any existing material Company Plan, except as required by applicable Lawpenalty related thereto.
(f) The ESOP is an “employee stock ownership plan” within the meaning of Section 4975(e)(7) of the Code. Neither the Company nor the ESOP has, within the three year period immediately preceding the date For purposes of this Agreement, received any inquiry “Participant” shall mean current or notice from former director, officer, employee, individual independent contractor or individual consultant of the IRS Company or Parent, as applicable, or any other governmental agency the effect of which is to question the qualification or status of the ESOP or any transaction entered into by the ESOP or the Company (with respect to the ESOP). The ESOP and the Company have filed all reports, returns or other documents in respect of the ESOP which are required to be filed pursuant to the applicable provisions of the Code and ERISA and the regulations thereunder. All loans entered into by the ESOP (the “ESOP Loans”) constitute “exempt loans” under Treasury Regulation Section 54.4975-7(b)(1)(iii). The securities held by the ESOP constitute “employer securities” under ERISA Section 407(d)(1) and Section 409(l) of the Code and “qualifying employer securities” under ERISA Section 407(d)(5) and Section 4975(e)(8) of the Codetheir respective Subsidiaries.
Appears in 2 contracts
Sources: Merger Agreement (Civitas Resources, Inc.), Merger Agreement (SM Energy Co)
Benefit Plans. (a) Section 3.13(a4.13(a) of the Company Disclosure Letter contains a true and complete list lists, as of each the date hereof, all material Company Plan. For purposes of this Agreement, “Company Plan” means each “employee benefit plan” plans (within the meaning of as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ERISA (“whether or not subject to ERISA”)), stock purchase) and all material bonus, stock option, severanceshare purchase, employmentrestricted share, changeother equity or equity-in-control, fringe benefit, bonusbased plans, incentive, deferred compensation, employee loan retiree medical or life insurance, supplemental retirement, employment, retention, transaction bonus, termination, change in control, severance, health, life, or disability insurance, dependent care or other employee material benefit planplans, agreementprograms, programpolicies, policy arrangements, contracts or other arrangement, whether or not subject to ERISA agreements (including the Company Employment Agreements), in each case, to which the Company, Company LP or any funding mechanism therefor now in effect Company Subsidiary is a party, with respect to which the Company, Company LP or required in the any Company Subsidiary has or could have any current or future as a result of the transactions contemplated by this Agreement obligation or liability (contingent or otherwise), whether written or unwrittenunder which any of the current or former employees, in each case officers, trustees, directors or independent contractors of the Company, Company LP or any Company Subsidiary (i) maintained by the Company or any of its Subsidiaries for current or former directors, employees or consultants of the Company or (iitheir dependents) under which (A) any employee, director or consultant or former employee, director or consultant of the Company or any of its Subsidiaries has any present or future right to compensation or benefits (all such plans, programs, arrangements, contracts or agreements, collectively, the “Company Benefit Plans”). The Company has made available to Parent, to the extent applicable, and, to the Knowledge of the Company, true and (B) complete copies of the Company or any of its Subsidiaries has had or has any present or future liability or obligation to contribute. With following with respect to each material Company Benefit Plan, : (i) the Company has furnished or made available to Parent a current, accurate and complete copy thereof, including any amendments, and, Benefit Plans to the extent applicable: in written form (ior to the extent not in written form, a written description of all of the material terms of such Company Benefit Plan), (ii) the annual reports (Form 5500s) filed for the most recent plan year, if any, relating to a Company Benefit Plan, (iii) the most recently received IRS determination letter or opinion letter, if any, relating to a Company Benefit Plan, (iv) the most recently prepared actuarial report or financial statement, if any, relating to a Company Benefit Plan, (v) any related trust agreement or other funding instrument, (iivi) the most recent determination, opinion or advisory letter of the Internal Revenue Service (the “IRS”)prospectus, if applicableany, (iii) any summary plan description or other material written communications by for each Company Equity Incentive Plan and the Company or its Subsidiaries to their employees concerning the extent of the benefits provided under a Company Plan and (iv) the most recent (A) Form 5500 and attached schedules, (B) audited financial statementsESPP, and (Cvii) actuarial valuation reportsall material correspondence with the Department of Labor, the IRS or any other Governmental Authority with respect to any Company Benefit Plan for the last three (3) plan years.
(b) Each Company Benefit Plan has been established and operated in all material respects in accordance with its terms and the requirements of all applicable Laws, including ERISA and the Code.
(c) Each Company Benefit Plan that is intended to be qualified under Section 401(a) of the Code has received a favorable determination letter from the IRS, or is entitled to rely on a favorable opinion letter issued by the IRS, and, except as would not reasonably be expected to have a Company Material Adverse Effect, no fact or event has occurred since the date of such determination letter or opinion letter from the IRS that would reasonably be expected to adversely affect the qualified status of any such Company Benefit Plan. None of the assets of any such Company Benefit Plan are invested in securities of the Company, Company LP or any Company Subsidiary, or in employer real property.
(d) None of the Company, Company LP or any Company Subsidiary or any of their ERISA Affiliates have within the last six (6) years (i) sponsored, maintained or had any obligation with respect to an “employee benefit plan” (as defined in Section 3(3) of ERISA) that is subject to the provisions of Section 302 or Title IV of ERISA or Section 412 of the Code or a “multiemployer plan” within the meaning of Section 3(37) of ERISA or (ii) incurred or reasonably expects to incur any material liability pursuant to Title IV of ERISA, whether contingent or otherwise. Neither the Company, Company LP, any Company Subsidiary nor any of their ERISA affiliates has any obligation with respect to any Company Benefit Plan that provides for any post-employment or post-retirement health or medical or life insurance benefits for former or current employees of the Company, Company LP, any Company Subsidiary or any of their ERISA Affiliates except as required by Section 4980B of the Code or similar state Law. No ERISA Affiliate of the Company, Company LP, any Company Subsidiary (other than the Company, Company LP or any Company Subsidiary) in existence on or prior to the Closing shall, after the Closing, maintain any “group health plan” as defined in Section 5000(b)(1) of the Code.
(e) Except as disclosed provided in any Company Benefit Plan or Company Employment Agreement, as set forth in Section 3.13(b4.13(e) of the Company Disclosure Letter or as otherwise specifically contemplated by this Agreement with respect to the Company Equity Awards and except asCompany Look-Back LTI Awards, neither the execution and delivery of this Agreement nor the consummation of the Mergers and the other transactions contemplated hereby will (either alone or in conjunction with any other event (whether contingent or otherwise)) (i) increase the amount or value of, any payment, right or other benefit otherwise due to any current or former employee, officer, trustee, director or other service provider of the Company, Company LP or any Company Subsidiary, (ii) entitle any current or former employee, officer, trustee, director or other service provider of the Company, Company LP or any Company Subsidiary to severance pay or any other similar termination payment or (iii) result in any amount failing to be deductible by reason of Section 280G of the Code. No Person is entitled to any gross-up, make-whole or other additional payment in respect of any Taxes imposed under Section 409A or Section 4999 of the Code or any interest or penalty related thereto.
(f) Except as would not, individually or in the aggregate, has not had, and would not reasonably be expected to have, have a Company Material Adverse Effect on the Company, with respect to the Company Plans:
Effect: (1i) each Company Plan has been established and administered in accordance with its terms and in compliance with the applicable provisions of ERISA, the Code and all other applicable Laws, and in the six years preceding the date hereof no reportable event, as defined in Section 4043 of ERISA, no non-exempt “prohibited transaction, transactions” (as described in Section 406 of ERISA or Section 4975 of the Code, or failure to satisfy the minimum funding standards, within the meaning of Section 302 of ERISA and 412 of the Code, has ) have occurred with respect to any Company Benefit Plan, ; and all contributions required to be made under the terms of any Company Plan have been timely made;
(2ii) each Company Plan intended to be qualified under Section 401(a) of the Code (A) has received a favorable determination, advisory and/or opinion letter, as applicable, from the IRS that it is so qualified, (B) the trust maintained thereunder has been determined to be exempt from taxation under Section 501(a) of the Code and (C) to the Company’s knowledge, nothing has occurred since the date of such letter that could reasonably be expected to cause the loss of such qualified status of such Company Plan;
(3) there is no Action (including any investigation, audit or other administrative proceeding) by the Department of Labor, the Pension Benefit Guaranty Corporation, the IRS or any other Governmental Entity or by any plan participant or beneficiary pending, or to the knowledge of the Company, threatened, relating to the Company Plans, any fiduciaries thereof to which the Company could have an indemnification obligation with respect to their duties to the Company Plans or the assets of any of the trusts under any of the Company Plans (other than routine claims for benefits) nor, to the knowledge of the Company, are there facts or circumstances that exist that could reasonably be expect to give rise to any such Actions;
(4) no Company Plan is or, within the preceding six years, has been subject to Title IV of ERISA or subject to Section 412 of the Code and neither the Company nor any Person that is a member of a “controlled group of corporations” with, or is under “common control” with, or is a member of the same “affiliated service group” with the Company, in each case, as defined in Sections 414(b), (c), (m) or (o) of the Code, maintains or contributes to (or has in the past six years maintained or contributed to) a multiemployer plan as defined in Section 3(37) of ERISA or a Title IV Plan;
(5) the Company and its Subsidiaries are not subject to any material liability, including additional contributions, fine, penalties or loss of Tax Deductions as a result of the administration or operation of any Company Plan that is a “group health plan” (as such term is defined in Section 5000(b)(1) of the Code);
(6) no Company Plan provides welfare benefits, including death or medical benefits (whether or not insured) beyond retirement or termination of service, other than coverage mandated solely by applicable Law;
(7) none of the Company Plans provides for payment of an amount or provision of a benefit, the increase of a payment or benefit, the payment of a contingent amount or provision of a contingent benefit, or the acceleration of the payment, funding or vesting of an amount or benefit determined or occasioned, in whole or in part, by reason of the execution of this Agreement or the consummation of the transactions contemplated hereby whether alone or together with any other event; and
(8) no amounts payable under the Company Plans will fail to be deductible for federal income tax purposes by virtue of Section 280G of the Code as a result of the occurrence of the transactions contemplated by this Agreement, either alone or in combination with another event.
(c) The Company and its Subsidiaries have not entered into any employment or employment-related agreements (including change in control agreements and offer letters) to which a named individual is a party, other than those set forth on Section 3.13(a) of the Company Disclosure Letter.
(d) Each Company Plan that is a “nonqualified deferred compensation plan” within the meaning of (as defined under Section 409A 409A(d)(1) of the Code and related Treasury Department guidance Code) has (i) been operated between January 1, 2005 and December 31, 2008, administered in good faith compliance with Section 409A of the Code and Notice 2005-01 and (ii) since January 1, 2009 (or such later date permitted under applicable guidance), been operated in compliance, and is in documentary compliance, in all material respects, with the requirements of Section 409A of the Coderelated Treasury guidance thereunder.
(eg) Neither the Company nor any Subsidiary has a binding commitment to create any additional material Company Plan, or any plan, agreement or arrangement that would be a material Company Plan if adopted, or to modify or terminate any existing material Company Plan, except as required by applicable Law.
(f) The ESOP is an “employee stock ownership plan” within the meaning of Section 4975(e)(74.13(g) of the Code. Neither Company Disclosure Letter lists: (i) each outstanding award of Company Restricted Shares, and with respect to each award of Company Restricted Shares, the name of the holder thereof, the additional Company nor Restricted Shares issuable upon performance in excess of target levels in accordance with the ESOP has, within terms of the three year period immediately preceding applicable award agreement or Company Equity Incentive Plan governing such award and such target level and the aggregate cash dividends and other distributions payable with respect to the award pursuant to Section 3.3(d) if the REIT Merger Effective Time were on the date of this Agreement; (ii) each outstanding Company Option, received any inquiry or notice from the IRS or any other governmental agency the effect of which is to question the qualification or status of the ESOP or any transaction entered into by the ESOP or the Company (and with respect to each Company Option, the ESOPname of the holder thereof (except to the extent that such Company Option is “underwater” relative to the REIT Per Share Merger Consideration), the grant date, exercise price, expiration date, current vesting status and vesting conditions and whether or not the Option was intended to be an “incentive stock option;” (iii) each outstanding Company Look-Back LTI Award, and with respect to each Company Look-Back LTI Award, the name of the grantee thereof, and for the outstanding performance period, the target amount of the performance portion of the award and the stretch amount of the performance portion of the award; and (iv) each Person that is entitled to receive any annual cash incentive under the Company’s applicable annual incentive bonus program and the amount payable thereunder as described in Section 7.15(e). The ESOP and the Company have filed all reportsshall, returns or other documents in respect of the ESOP which are required to be filed pursuant no later than five (5) Business Days prior to the applicable provisions of REIT Merger Effective Time, update the Code and ERISA and the regulations thereunder. All loans entered into by the ESOP (the “ESOP Loans”) constitute “exempt loans” under Treasury Regulation information set forth in Section 54.4975-7(b)(1)(iii). The securities held by the ESOP constitute “employer securities” under ERISA Section 407(d)(1) and Section 409(l4.13(g) of the Code and “qualifying employer securities” under ERISA Section 407(d)(5) and Section 4975(e)(8) of the CodeCompany Disclosure Letter.
Appears in 2 contracts
Sources: Merger Agreement (First Potomac Realty Trust), Merger Agreement (Government Properties Income Trust)
Benefit Plans. (a) Section 3.13(a3.11(a) of the Company Disclosure Letter contains sets forth a true true, correct and complete list of each the material Company PlanPlans. For purposes The Company has made available to Parent true, correct and complete copies of this Agreement, “Company Plan” means each “employee benefit plan” (within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”)), stock purchase, stock option, severance, employment, change-in-control, fringe benefit, bonus, incentive, deferred compensation, employee loan or other employee benefit plan, agreement, program, policy or other arrangement, whether or not subject to ERISA (including any funding mechanism therefor now in effect or required in the future as a result of the transactions contemplated by this Agreement or otherwise), whether written or unwritten, in each case (i) maintained by the all material Company or any of its Subsidiaries for current or former directorsPlans that have been reduced to writing, employees or consultants of the Company or together with all amendments thereto, (ii) under which written summaries of all material unwritten Company Plans, (Aiii) any employeeall related summary plan descriptions, director or consultant or former employee(iv) all annual reports filed on IRS Form 5500, director or consultant of all plan financial statements and all actuarial valuation reports for the Company or any of its Subsidiaries has any present or future right to benefits and (B) the Company or any of its Subsidiaries has had or has any present or future liability or obligation to contribute. With respect to most recent plan year for each material Company Plan, the Company has furnished or made available to Parent a current, accurate and complete copy thereof, including any amendments, and, to the extent applicable: (iv) any related trust agreement material written or other funding instrument, (ii) electronic communications within the most recent determination, opinion last five years from or advisory letter of to the Internal Revenue Service (the “IRS”), if applicable, (iii) the Department of Labor or any summary plan description or other material written communications by the Company or its Subsidiaries Governmental Entity with respect to their employees concerning the extent of the benefits provided under a Company Plan and (iv) the most recent (A) Form 5500 and attached schedules, (B) audited financial statements, and (C) actuarial valuation reportsincluding any voluntary correction submissions).
(b) Except as disclosed in Section 3.13(b) of the Company Disclosure Letter and except as, individually or in the aggregate, has not had, and would not reasonably be expected to have, a Material Adverse Effect on the Company, with respect to the Company Plans:
(1) each Each Company Plan has been established and administered in all material respects in accordance with its terms and in compliance with the applicable provisions of ERISA, the Code Code, and all other applicable LawsLaw, and in the six years preceding the date hereof no reportable event, as defined in Section 4043 of ERISA, no non-exempt prohibited transaction, as described in Section 406 of ERISA or Section 4975 of the Code, or failure to satisfy the minimum funding standards, within the meaning of Section 302 of ERISA and 412 of the Code, Code has occurred with respect to any Company Plan, and all contributions required to be made under the terms of any Company Plan have been timely made;
(2) each occurred. Each Company Plan intended to be qualified under Section 401(a) of the Code (A) has received a favorable determination, advisory and/or opinion letter, as applicable, from the IRS that it is so qualified, qualified (B) or the trust maintained thereunder deadline for obtaining such a letter has been determined to be exempt from taxation under Section 501(a) not expired as of the Code and (C) to the Company’s knowledge, nothing has occurred since the date of such letter that could reasonably be expected this Agreement). There is no plan or commitment, whether legally binding or not, to cause the loss of such qualified status of such create any material additional Company Plan or to materially modify any existing material Company Plan;.
(3c) there There is no Action (including any investigation, audit or other administrative proceeding) by the Department of Labor, the Pension Benefit Guaranty Corporation, the IRS or any other Governmental Entity or by any plan participant or beneficiary pending, or to the knowledge of the Company, threatened, relating to the Company Plans, any fiduciaries thereof to which the Company could have an indemnification obligation with respect to their duties to the Company Plans or the assets of any of the trusts under any of the material Company Plans (other than routine claims for benefits), nor has there been any such Action since January 1, 2013.
(d) nor, to the knowledge None of the Company, are there facts any of its Subsidiaries, or circumstances that exist that could reasonably be expect any of their respective ERISA Affiliates has maintained, contributed to give rise or has had any obligation to contribute to, or has or has had any such Actions;
(4) no Company Plan is oractual or potential liability with respect to, within the preceding six years, has been any plan subject to Title IV of ERISA or ERISA, any plan subject to Section 412 4.12 of the Code and neither or any “multiemployer plan” (within the meaning of Section 3(37) of ERISA) since January 1, 2009.
(e) Neither the Company nor any Person that of its Subsidiaries has made any payment, is a member of a “controlled group of corporations” with, or is under “common control” withobligated to make any payment, or is a member party to any Contract, arrangement or plan that would, in connection with the transactions contemplated by this Agreement, whether occurring alone or in connection with any other preceding, contemporaneous, or subsequent event, obligate it to make any payment that would reasonably be expected to be treated as an “excess parachute payment” under Section 280G of the same “affiliated service group” with the Company, in each case, as defined in Code (without regard to Sections 414(b), (c), (m280G(b)(4) or (o) of the Code, maintains or contributes to (or has in the past six years maintained or contributed to) a multiemployer plan as defined in Section 3(37) of ERISA or a Title IV Plan;
(5) the Company and its Subsidiaries are not subject to any material liability, including additional contributions, fine, penalties or loss of Tax Deductions as a result of the administration or operation of any Company Plan that is a “group health plan” (as such term is defined in Section 5000(b)(1280G(b)(5) of the Code);.
(6f) no All group health plans of the Company, any Subsidiary of the Company Plan provides and any ERISA Affiliate comply in all material respects with the requirements of the Consolidated Omnibus Budget Reconciliation Act of 1985, Code Section 5000, the Health Insurance Portability and Accountability Act, the Patient Protection and Affordable Care Act, and any other comparable domestic or foreign Laws. No employee, officer, director or manager, or former employee, officer, director or manager (or beneficiary of any of the foregoing) of the Company or any of its Subsidiaries is entitled to receive any welfare benefits, including death or medical benefits (whether or not insured) beyond retirement or other termination of serviceemployment, other than coverage mandated solely as required by applicable Law or under insured disability benefit arrangements, and there have been no written or oral commitments inconsistent with the foregoing.
(g) No act or omission has occurred and no condition exists with respect to any Company Plan that would subject Parent, the Company, any Subsidiary of the Company, any ERISA Affiliate, or any plan participant to any material fine, penalty, Tax or liability of any kind imposed under ERISA, the Code or any other applicable Law.
(h) Each material Company Plan (other than employment agreements or the Executive Severance Agreements) is amendable and terminable unilaterally by the Company and any of its Subsidiaries that is a party thereto or covered thereby at any time without material liability or expense to the Company, any of its Subsidiaries or such Company Plan as a result thereof (other than for benefits accrued through the date of termination or amendment and reasonable administrative expenses related thereto) and no material Company Plan, plan documentation or Contract, summary plan description or other written communication distributed generally to employees by its terms prohibits the Company or any of its Subsidiaries from amending or terminating any such Company Plan, or in any way limits such action.
(i) Except for the agreements set forth in Section 3.11(i) of the Company Disclosure Letter (collectively, the “Executive Severance Agreements”) or as required by applicable Law;
, no material Company Plan or other material Contract, plan or arrangement covering any one or more individuals contains any provision that, in connection with any of the transactions contemplated by this Agreement or upon related, concurrent or subsequent employment termination, or in combination with any other event, would (7i) none increase, accelerate or vest any compensation or benefit, (ii) require severance, termination or retention payments, (iii) provide any term of employment or compensation guaranty, (iv) promise or provide any Tax gross ups or indemnification, whether under Sections 280G or 409A of the Code or otherwise, or (v) measure any values of benefits on the basis of any of the transactions contemplated hereby. No stockholder, employee, officer or director of the Company Plans provides for payment of an amount has been promised or provision of a benefit, the increase of a payment paid any bonus or benefit, the payment of a contingent amount or provision of a contingent benefit, or the acceleration of the payment, funding or vesting of an amount or benefit determined or occasioned, in whole or in part, by reason of the execution of this Agreement or incentive compensation related to the consummation of the transactions contemplated hereby whether alone or together with any other event; and
(8) no amounts payable under the Company Plans will fail to be deductible for federal income tax purposes by virtue of Section 280G of the Code as a result of the occurrence of the transactions contemplated by this Agreement, either alone or in combination with another eventhereby.
(c) The Company and its Subsidiaries have not entered into any employment or employment-related agreements (including change in control agreements and offer letters) to which a named individual is a party, other than those set forth on Section 3.13(a) of the Company Disclosure Letter.
(dj) Each Company Plan that is a “nonqualified deferred compensation plan” within the meaning of (as defined in Code Section 409A of the Code 409A(d)(1)) is, and related Treasury Department guidance has (i) been operated between since January 1, 2005 and December 31, 2008has been, in good faith compliance in all material respects with Code Section 409A and is, and since January 1, 2009 has been, in documentary compliance. No Company SAR being assumed pursuant to Section 2.2(b) has a measurement price that has been less than the fair market value of the Code and Notice 2005-01 and underlying stock as of the date such right was granted or has any feature for the deferral of compensation other than the deferral of recognition of income until the later of exercise or disposition of such right.
(iik) With respect to each material Company Plan that is subject to the Laws of any jurisdiction outside of the United States (a “Foreign Plan”), the Foreign Plan (i) since January 1, 2009 (or such later date permitted under applicable guidance), 2013 has been operated in compliance, and is in documentary compliance, maintained in all material respectsrespects in accordance with its terms and with all applicable Laws, with the (ii) if intended to qualify for special Tax treatment, meets all requirements of Section 409A of the Code.
for such treatment, (eiii) Neither the Company nor any Subsidiary has a binding commitment to create any additional material Company Plan, or any plan, agreement or arrangement that would be a material Company Plan if adopted, or to modify or terminate any existing material Company Plan, except as required by applicable Law.
(f) The ESOP is an “employee stock ownership plan” within the meaning of Section 4975(e)(7) of the Code. Neither the Company nor the ESOP has, within the three year period immediately preceding the date of this Agreement, received any inquiry or notice from the IRS or any other governmental agency the effect of which is to question the qualification or status of the ESOP or any transaction entered into by the ESOP or the Company (with respect to the ESOP). The ESOP each material Foreign Plan, such Foreign Plan is fully funded, and the Company have filed all reports, returns or other documents in respect of the ESOP which are (iv) if required to be filed pursuant to registered, has been registered with the applicable provisions of appropriate Governmental Entities and has been maintained in good standing with the Code and ERISA and the regulations thereunder. All loans entered into by the ESOP (the “ESOP Loans”) constitute “exempt loans” under Treasury Regulation Section 54.4975-7(b)(1)(iii). The securities held by the ESOP constitute “employer securities” under ERISA Section 407(d)(1) and Section 409(l) of the Code and “qualifying employer securities” under ERISA Section 407(d)(5) and Section 4975(e)(8) of the Codeappropriate Governmental Entities.
Appears in 2 contracts
Sources: Merger Agreement (MKS Instruments Inc), Merger Agreement (Newport Corp)
Benefit Plans. (a) Section 3.13(a) of the Company The Disclosure Letter contains Schedule sets forth a true complete and complete correct list of each material Company Plan. For purposes of this Agreement, “Company Plan” means each “all "employee benefit plan” (within the meaning of plans," as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974ERISA, as amended (“ERISA”))and all plans, programs, policies, arrangements or agreement with respect to employment, termination, severance pay, vacation pay, company awards, salary continuation, disability, sick leave, retirement, deferred compensation, bonus or other incentive compensation, stock purchase, stock option, severance, employment, changeoption or other equity-in-control, fringe benefit, bonus, incentive, deferred based compensation, employee loan hospitalization, medical insurance, life insurance, educational assistance, arrangements or other employee benefit plan, agreement, program, policy or other arrangement, whether or not subject to ERISA arrangements (including any funding mechanism therefor now in effect or required in the future as a result of the transactions contemplated by this Agreement or otherwise), whether written or unwritten, in each case (ioral) maintained by the Company or any of its Subsidiaries for current covering employees or former directorsemployees of Seller, employees or consultants with respect to which Seller has any obligation or liability ("Benefit Plans").
(b) True, correct and complete copies of the Company or (ii) under which (A) any employeefollowing documents, director or consultant or former employee, director or consultant of the Company or any of its Subsidiaries has any present or future right to benefits and (B) the Company or any of its Subsidiaries has had or has any present or future liability or obligation to contribute. With with respect to each material Company Planof the Benefit Plans, the Company has furnished or made available have been delivered to Parent a current, accurate and complete copy thereof, including any amendments, and, to the extent applicableBuyer: (i) any plans and related trust agreement or other funding instrumentdocuments, including all amendments thereto, (ii) the three most recent determination, opinion or advisory letter of the Internal Revenue Service annual reports (the “IRS”), if applicableForms 5500) and schedules thereto, (iii) any summary plan description or other material written communications by the Company or its Subsidiaries to their employees concerning the extent of the benefits provided under a Company Plan most recent financial statements and actuarial valuations if any, (iv) the most recent (A) Form 5500 and attached schedulesIRS determination letter, (Bv) audited financial statementsthe most recent summary plan descriptions, and (Cvi) actuarial valuation reportsthe premium expenses and claims experience for each Benefit Plan which is a welfare benefit plan for the period from January 1, 1996 to the last day of the month preceding the date hereof.
(bc) Except as disclosed in Section 3.13(b) Each of the Company Disclosure Letter Benefit Plans intended to quality under Section 401 of the Code has been so qualified since its inception and except as, individually or in has received a favorable determination letter from the aggregate, has not hadIRS as to such qualified status, and would not reasonably be expected to have, a Material Adverse Effect on the Company, nothing has occurred with respect to the Company Plans:operation of any such plan which could cause the loss of such qualification or the imposition of any material liability, penalty or tax under ERISA or the Code.
(1d) each Company Plan Each of the Benefit Plans has been established and administered in accordance with its terms and has been maintained in compliance compliance, in form and operation, with the all applicable provisions of ERISAlaws, the Code including, without limitation, ERISA and all other applicable Laws, and in the six years preceding the date hereof no reportable event, as defined in Section 4043 of ERISA, no prohibited transaction, as described in Section 406 of ERISA or Section 4975 of the Code, . Neither the Seller nor any "party in interest" or failure "disqualified person" with respect to satisfy the minimum funding standards, Benefit Plans has engage in a non-exempt prohibited transaction within the meaning of Section 302 of ERISA and 412 of the Code, has occurred with respect to any Company Plan, and all contributions required to be made under the terms of any Company Plan have been timely made;
(2) each Company Plan intended to be qualified under Section 401(a) 4975 of the Code (A) has received a favorable determination, advisory and/or opinion letter, as applicable, from the IRS that it is so qualified, (B) the trust maintained thereunder has been determined to be exempt from taxation under or Section 501(a) 406 of the Code and (C) to the Company’s knowledge, nothing has occurred since the date of such letter that could reasonably be expected to cause the loss of such qualified status of such Company Plan;
(3) there is no Action (including any investigation, audit or other administrative proceeding) by the Department of Labor, the Pension Benefit Guaranty Corporation, the IRS or any other Governmental Entity or by any plan participant or beneficiary pending, or to the knowledge of the Company, threatened, relating to the Company Plans, any fiduciaries thereof to which the Company could have an indemnification obligation with respect to their duties to the Company Plans or the assets of any of the trusts under any of the Company Plans (other than routine claims for benefits) nor, to the knowledge of the Company, are there facts or circumstances that exist that could reasonably be expect to give rise to any such Actions;
(4) no Company Plan is or, within the preceding six years, has been subject to Title IV of ERISA or subject to Section 412 of the Code and neither the Company nor any Person that is a member of a “controlled group of corporations” with, or is under “common control” with, or is a member of the same “affiliated service group” with the Company, in each case, as defined in Sections 414(b), (c), (m) or (o) of the Code, maintains or contributes to (or has in the past six years maintained or contributed to) a multiemployer plan as defined in Section 3(37) of ERISA or a Title IV Plan;
(5) the Company and its Subsidiaries are not subject to any material liability, including additional contributions, fine, penalties or loss of Tax Deductions as a result of the administration or operation of any Company Plan that is a “group health plan” (as such term is defined in Section 5000(b)(1) of the Code);
(6) no Company Plan provides welfare benefits, including death or medical benefits (whether or not insured) beyond retirement or termination of service, other than coverage mandated solely by applicable Law;
(7) none of the Company Plans provides for payment of an amount or provision of a benefit, the increase of a payment or benefit, the payment of a contingent amount or provision of a contingent benefit, or the acceleration of the payment, funding or vesting of an amount or benefit determined or occasioned, in whole or in part, by reason of the execution of this Agreement or the consummation of the transactions contemplated hereby whether alone or together with any other event; and
(8) no amounts payable under the Company Plans will fail to be deductible for federal income tax purposes by virtue of Section 280G of the Code as a result of the occurrence of the transactions contemplated by this Agreement, either alone or in combination with another eventERISA.
(c) The Company and its Subsidiaries have not entered into any employment or employment-related agreements (including change in control agreements and offer letters) to which a named individual is a party, other than those set forth on Section 3.13(a) of the Company Disclosure Letter.
(d) Each Company Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A of the Code and related Treasury Department guidance has (i) been operated between January 1, 2005 and December 31, 2008, in good faith compliance with Section 409A of the Code and Notice 2005-01 and (ii) since January 1, 2009 (or such later date permitted under applicable guidance), been operated in compliance, and is in documentary compliance, in all material respects, with the requirements of Section 409A of the Code.
(e) Neither the Company nor any Subsidiary has a binding commitment to create any additional material Company Plan, or any plan, agreement or arrangement that would be a material Company Plan if adopted, or to modify or terminate any existing material Company Plan, except as required by applicable Law.
(f) The ESOP is an “employee stock ownership plan” within the meaning of Section 4975(e)(7) of the Code. Neither the Company nor the ESOP has, within the three year period immediately preceding the date of this Agreement, received any inquiry or notice from the IRS or any other governmental agency the effect of which is to question the qualification or status of the ESOP or any transaction entered into by the ESOP or the Company (with respect to the ESOP). The ESOP and the Company have filed all reports, returns or other documents in respect of the ESOP which are required to be filed pursuant to the applicable provisions of the Code and ERISA and the regulations thereunder. All loans entered into by the ESOP (the “ESOP Loans”) constitute “exempt loans” under Treasury Regulation Section 54.4975-7(b)(1)(iii). The securities held by the ESOP constitute “employer securities” under ERISA Section 407(d)(1) and Section 409(l) of the Code and “qualifying employer securities” under ERISA Section 407(d)(5) and Section 4975(e)(8) of the Code.
Appears in 2 contracts
Sources: Agreement to Purchase Selected Assets (Alaris Medical Systems Inc), Agreement to Purchase Selected Assets (Alaris Medical Inc)
Benefit Plans. (a) Section Schedule 3.13(a) lists each Benefit Plan. The Company does not have any legally binding commitment to create any additional Benefit Plan, to modify or change any existing Benefit Plan or to terminate any existing Benefit Plan that would affect any current or former employee of the Company Disclosure Letter contains a true and complete list of each material Company Plan. For purposes of this Agreement, “Company Plan” means each “employee benefit plan” (within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”)), stock purchase, stock option, severance, employment, change-in-control, fringe benefit, bonus, incentive, deferred compensation, employee loan or other employee benefit plan, agreement, program, policy or other arrangement, whether or not subject to ERISA (including any funding mechanism therefor now in effect or required in the future as a result of the transactions contemplated by this Agreement or otherwise), whether written or unwritten, in each case (i) maintained by the Company or any of its Subsidiaries for current or former directors, employees or consultants of the Company or (ii) under which (A) any employee, director or consultant or former employee, director or consultant of the Company or any of its Subsidiaries has any present or future right to benefits and (B) the Company or any of its Subsidiaries has had or has any present or future liability or obligation to contribute. With respect to each material Company Plan, the Company has furnished or made available to Parent a current, accurate and complete copy thereof, including any amendments, and, except to the extent applicable: (i) any related trust agreement or other funding instrument, (ii) the most recent determination, opinion or advisory letter of the Internal Revenue Service (the “IRS”), if applicable, (iii) any summary plan description or other material written communications by the Company or its Subsidiaries necessary to their employees concerning the extent of the benefits provided under a Company Plan and (iv) the most recent (A) Form 5500 and attached schedules, (B) audited financial statements, and (C) actuarial valuation reportssatisfy an applicable Law.
(b) Except as disclosed Each Benefit Plan (and each related trust or fund) has at all times complied in Section 3.13(b) of the Company Disclosure Letter form and except asoperation, individually or in the aggregate, has not had, and would not reasonably be expected to have, a Material Adverse Effect on the Company, with respect to the Company Plans:
(1) each Company Plan has been established and administered in accordance with its terms and in compliance with the all applicable provisions of ERISA, Laws including ERISA and the Code and all other applicable Laws, and in the six years preceding the date hereof no reportable event, as defined in Section 4043 of ERISA, no prohibited transaction, as described in Section 406 of ERISA or Section 4975 of the Code, or failure to satisfy the minimum funding standards, within the meaning of Section 302 of ERISA and 412 of the Code, has occurred with respect to any Company Plan, and all contributions required to be made under the terms of any Company Plan have been timely made;regulations thereunder.
(2c) each Company Each Benefit Plan intended to be qualified qualify under Section section 401(a) of the Code (A) has received a favorable determination, advisory and/or opinion letter, as applicable, from the IRS that it is so qualified, (B) the trust maintained thereunder has been determined to be exempt from taxation at all times met all requirements for qualification under Section 501(asection 401(a) of the Code and (C) the regulations thereunder. A favorable determination as to the Company’s knowledge, nothing qualification under the Code of each of the Benefit Plans intended to qualify under section 401(a) of the Code has been made by the IRS and no event has occurred since the date of such letter determination that could reasonably be expected to cause adversely affect any such Benefit Plan’s qualification under section 401(a) of the loss of such qualified status of such Company Plan;Code.
(3d) there is no Action With respect to each Benefit Plan, to the extent applicable, the Company has made available to the Buyer true and complete copies of (i) such Benefit Plan (including any investigationall amendments thereto), audit or other administrative proceeding(ii) by the Department of Laborall current trust agreements, the Pension Benefit Guaranty Corporation, the IRS insurance contracts or any other Governmental Entity or by any funding instruments, (iii) the summary plan participant or beneficiary pending, or to the knowledge description (including all summaries of the Company, threatened, relating to the Company Plans, any fiduciaries thereof to which the Company could have an indemnification obligation with respect to their duties to the Company Plans or the assets of any of the trusts under any of the Company Plans (other than routine claims for benefits) nor, to the knowledge of the Company, are there facts or circumstances that exist that could reasonably be expect to give rise to any such Actions;
(4) no Company Plan is or, within the preceding six years, has been subject to Title IV of ERISA or subject to Section 412 of the Code and neither the Company nor any Person that is a member of a “controlled group of corporations” with, or is under “common control” with, or is a member of the same “affiliated service group” with the Company, in each case, as defined in Sections 414(bmaterial modifications), (civ) the most recent actuarial report, (v) the three most recent annual reports (Form 5500 series), including all schedules, (mvi) or the three most recent financial statements, (ovii) the three most recent nondiscrimination testing and Code limit compliance reports, (viii) copies of all IRS determination and/or opinion letters in the case of all Benefit Plans intended to qualify under Section 401(a) of the Code, maintains (ix) all service, investment, administrative or contributes other agreements or Contracts, (x) any filings (and related Governmental Authority approvals) under any amnesty, voluntary compliance, or similar program sponsored by any Governmental Authority, and (xi) any correspondence from the last six (6) years with a Governmental Authority related to potential noncompliance with Law. The Company has provided Buyer with copies of all IRS Forms 1094-C that have been filed with respect to the Company.
(e) There are no Proceedings pending or threatened in writing with respect to any Benefit Plan or any fiduciary or assets thereof. Neither the Company nor any current or former employee, officer or director thereof who is or was a fiduciary of a Pension Plan or Welfare Plan nor, to the Company’s Knowledge, any other fiduciary of a Pension Plan or Welfare Plan, has violated the requirements of Section 404 of ERISA. No Benefit Plan is currently under audit or review by any applicable Governmental Authority.
(f) There have been no non-exempt prohibited transactions as defined in Code Section 4975 or ERISA Section 406 with respect to any Benefit Plan that would result in liability to the Company.
(g) The Company and each ERISA Affiliate have made all required contributions (including remitting employee contributions and loan repayments) or payments and paid in full all required insurance premiums and other required payments with regard to the Benefit Plans for policy or plan years or other applicable periods ending on or before the Closing Date to the extent due or owing on or before the Closing Date and all liabilities of the Company which have been incurred but will not be due and owing as of the Closing Date will be reflected in the past six years maintained Final Closing Statement.
(h) Neither the Company nor any ERISA Affiliate or Benefit Plan has incurred any liability under or with respect to sections 4971 through 4980H, 6055 or 6056 of the Code.
(i) Neither the Company nor any ERISA Affiliate has ever maintained, sponsored, participated in or contributed to, or could have any liability with respect to, any (i) plan or arrangement which is or was a Multiemployer Plan or any plan or arrangement which is or was subject to Part 3 of Subtitle B of Title I of ERISA, Title IV of ERISA, sections 412 or 413 of the Code or any similar applicable Law, or (ii) a multiemployer plan as defined multiple employer welfare arrangement described in Section 3(373(40) of ERISA or a Title IV Plan;ERISA.
(5j) Neither the Company and its Subsidiaries are not subject nor any ERISA Affiliate maintains, contributes to or has an obligation to contribute to, or has any material liabilityliability with respect to, including additional contributionsany Welfare Plan or other arrangement providing health or life insurance or other welfare-type benefits for current or future retired or terminated directors, fine, penalties officers or loss of Tax Deductions as a result of the administration employees (or operation of any Company Plan that is a “group health plan” (as such term is defined in Section 5000(b)(1spouse or other dependent) of the Code);Company or an ERISA Affiliate, except as required to avoid an excise tax under Section 4980B of the Code or as may be required pursuant to any applicable Law.
(6k) no Company Plan provides welfare benefitsExcept as expressly contemplated by this Agreement, including death or medical benefits (whether or not insured) beyond retirement or termination of service, other than coverage mandated solely by applicable Law;
(7) none of the Company Plans provides for payment of an amount or provision of a benefit, the increase of a payment or benefit, the payment of a contingent amount or provision of a contingent benefit, or the acceleration of the payment, funding or vesting of an amount or benefit determined or occasioned, in whole or in part, by reason of neither the execution and delivery of this Agreement or nor the consummation of the transactions contemplated hereby whether alone will: (i) entitle any current or together former employee or officer or other individual service provider of the Company to any payment, forgiveness of Indebtedness, vesting, distribution, or increase in benefits or compensation under or with respect to any Benefit Plan; (ii) result in any acceleration (of vesting or payment of benefits or compensation or otherwise) under or with respect to any Benefit Plan; (iii) trigger any obligation to fund any Benefit Plan; or (iv) result in any Benefit Plan or any other event; and
(8) no amounts payable under Contract to which the Company Plans will fail to is a party providing for the payment of any amount which would not be deductible for federal income tax purposes by virtue reason of Section 280G of the Code as Code. The Company has no obligation, under a result Benefit Plan or otherwise, to provide for a gross-up on any Taxes which may be imposed under Section 4999 of the occurrence of the transactions contemplated by this Agreement, either alone or in combination with another eventCode.
(c) The Company and its Subsidiaries have not entered into any employment or employment-related agreements (including change in control agreements and offer letters) to which a named individual is a party, other than those set forth on Section 3.13(a) of the Company Disclosure Letter.
(dl) Each Company Benefit Plan that is a “nonqualified deferred compensation plan” within the meaning of (as defined in Section 409A 409A(d)(1) of the Code and related Treasury Department guidance Code) has (i) at all times been operated between January 1, 2005 and December 31, 2008, in good faith compliance with Section 409A of the Code and Notice 2005-01 and (ii) since January 1, 2009 (or such later date permitted under applicable guidance), been operated in compliance, and is in documentary and operational compliance, in all material respects, with Section 409A of the requirements of Code and all applicable guidance promulgated thereunder. The Company has no obligation, under a Benefit Plan or otherwise, to provide for a gross-up on any Taxes which may be imposed under Section 409A of the Code.
. All Options granted under the Equity Incentive Plan have been granted in compliance with the terms of applicable Law and the Equity Incentive Plan at a per share exercise price at least equal to the fair market value of a share of Common Stock as of the date the Option was granted (e) Neither the Company nor any Subsidiary has a binding commitment to create any additional material Company Plan, or any plan, agreement or arrangement that would be a material Company Plan if adopted, or to modify or terminate any existing material Company Plan, except as required by determined in accordance with applicable Law.
(f) The ESOP is an “employee stock ownership plan” within the meaning of , including Section 4975(e)(7) 409A of the Code. Neither the Company nor the ESOP has, within the three year period immediately preceding the date of this Agreement, received any inquiry or notice from the IRS or any other governmental agency the effect of which is to question the qualification or status of the ESOP or any transaction entered into by the ESOP or the Company (with respect to the ESOP). The ESOP and the Company have filed all reports, returns or other documents in respect of the ESOP which are required to be filed pursuant to the applicable provisions of the Code and ERISA and the regulations thereunder. All loans entered into by the ESOP (the “ESOP Loans”) constitute “exempt loans” under Treasury Regulation Section 54.4975-7(b)(1)(iii). The securities held by the ESOP constitute “employer securities” under ERISA Section 407(d)(1) and Section 409(l) of the Code and “qualifying employer securities” under ERISA Section 407(d)(5) and Section 4975(e)(8) of the Code.
Appears in 1 contract
Benefit Plans. (a) Section 3.13(a4.15(a) of the Company Seller Disclosure Letter Schedule contains a true and complete list of each material Company Plan. For purposes of this Agreement, “Company Plan” means each all written “employee benefit planplans” (within the meaning of as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended 1974 (“ERISA”))) and all other material employment, stock purchaseseverance, change in control, retention, consulting, vacation benefits, retirement, post-retirement, bonus, stock option, severancedeferred and incentive compensation plans, employmentpolicies and programs or any other material compensatory and fringe benefits plans, change-in-control, fringe benefit, bonus, incentive, deferred policies and programs (excluding workers’ compensation, employee loan or unemployment compensation and other employee benefit plan, agreement, program, policy or other arrangement, whether or not subject to ERISA government programs) (including any funding mechanism therefor now in effect or required in the future as a result of the transactions contemplated by this Agreement or otherwise), whether written or unwritten, in each case (i1) maintained or contributed to by the Company or any Company Subsidiary (other than the Multiemployer Plans, the “Company Plans”) or (2) maintained or contributed to by Seller or any of its Subsidiaries Affiliates (other than the Company or any Company Subsidiary) for the benefit of current or former directors, employees or consultants of the Company or (ii) under which (A) any employee, director or consultant or former employee, director or consultant of the Company or any Company Subsidiary or any employee set forth in Section 8.07(a) of its Subsidiaries has any present or future right to benefits the Seller Disclosure Schedule (other than Multiemployer Plans, the “Seller Plans,” and (B) collectively with the Company or any of its Subsidiaries has had or has any present or future liability or obligation to contribute. With respect to each material Company PlanPlans, the Company has furnished or made available to Parent a current, accurate and complete copy thereof, including any amendments, and, to the extent applicable: (i“Benefit Plans”). Section 4.15(a) any related trust agreement or other funding instrument, (ii) the most recent determination, opinion or advisory letter of the Internal Revenue Service (the “IRS”), if applicable, (iii) any summary plan description or other material written communications by Seller Disclosure Schedule separately identifies the Company or its Subsidiaries to their employees concerning Plans and the extent of the benefits provided under a Company Plan and (iv) the most recent (A) Form 5500 and attached schedules, (B) audited financial statements, and (C) actuarial valuation reportsSeller Plans.
(b) Except as disclosed in Section 3.13(b) of Seller has delivered the Company Disclosure Letter and except as, individually or in the aggregate, has not had, and would not reasonably be expected following documents to have, a Material Adverse Effect on the Company, Buyer with respect to the each Company Plans:
Plan: (1) each correct and complete copies of all documents embodying such Company Plan, (2) the most recent summary plan description together with the summary or summaries of material modifications thereto, if any, (3) all Internal Revenue Service or Department of Labor determination, opinion, notification and advisory letters, (4) the most recent annual report (Form Series 5500 and all schedules and financial statements attached thereto), if any, and (5) all material correspondence to or from any Governmental Entity received since June 18, 2014.
(c) Each Company Plan has been established established, documented, and administered in accordance with its terms and maintained in compliance with in all material respects with, to the extent applicable provisions of to such plan, ERISA, the Code and all other applicable Laws, and in the six years preceding the date hereof no reportable event, as defined in Section 4043 of ERISA, no prohibited transaction, as described in Section 406 of ERISA or Section 4975 of the Code, or failure to satisfy the minimum funding standards, within the meaning of Section 302 of ERISA and 412 of the Code, has occurred with respect to any Company Plan, and all contributions required to be made under the terms of any Company Plan have been timely made;
(2) each Applicable Laws. Each Company Plan intended to be qualified under Section 401(a) of the Code (Aand each related trust intended to qualify under Section 501(a) of the Code has received obtained a currently effective favorable determinationdetermination notification, advisory and/or opinion letter, as applicable, as to its qualified status (or the qualified status of the master or prototype form on which it is established) from the IRS that it is so qualifiedInternal Revenue Service, (B) the trust maintained thereunder and no amendment to such Company Plan has been determined to be exempt from taxation under Section 501(a) of the Code and (C) to the Company’s knowledge, nothing has occurred adopted since the date of such letter covering such Company Plan that would reasonably be expected to adversely affect such favorable determination. With respect to each Company Plan, (i) in all material respects, no breaches of fiduciary duty or other failures to act or comply in connection with the administration or investment of the assets of such Company Plan have occurred, (ii) no lien has been imposed under the Code, ERISA or any other applicable law, and (iii) there have been no non-exempt prohibited transactions (within the meaning of Section 406 of ERISA or Section 4975 of the Code) with respect to any Company Plan that could reasonably be expected to cause the loss of such qualified status of such Company Plan;result in material liability.
(3d) there is no Action (including any investigation, audit or other administrative proceeding) by the Department of Labor, the Pension Benefit Guaranty Corporation, the IRS or any other Governmental Entity or by any plan participant or beneficiary pending, or to the knowledge of the Company, threatened, relating to the Company Plans, any fiduciaries thereof to which the Company could have an indemnification obligation with respect to their duties to the Company Plans or the assets of any of the trusts under any of the Company Plans (other than routine claims for benefits) nor, to the knowledge of the Company, are there facts or circumstances that exist that could reasonably be expect to give rise to any such Actions;
(4) no Company Plan is or, within the preceding six years, has been subject to Title IV of ERISA or subject to Section 412 of the Code and neither Neither the Company nor any Person that Company Subsidiaries nor any entity which is a member of considered a “controlled group of corporations” with, or is under “common control” with, or is a member of the same “affiliated service groupsingle employer” with the Company, in each case, as defined in Sections Company or any Company Subsidiaries under Section 414(b), (c), (m) or (o) of the Code (an “ERISA Affiliate”) maintains or has an obligation to contribute, and neither the Company nor any Company Subsidiary otherwise has any liability (contingent or otherwise), with respect to (i) a plan described in Section 413 of the Code, maintains (ii) a plan subject to Title IV of ERISA or (iii) a plan subject to the minimum funding standards of Section 412 of the Code or Section 302 of ERISA. Neither the Company nor any Company Subsidiaries has incurred any liability or obligation, with respect to any “employee benefit plan” (as defined in Section 3(3) of ERISA) that is not sponsored by it by reason of being treated as a single employer with any ERISA Affiliate (other than the Company and the Company Subsidiaries). No Proceedings, audits, or investigations (other than routine benefit claims) are pending or, to the knowledge of Seller, threatened against or relating to any Company Plan, or any fiduciary thereof. In all material respects, all payments, benefits, contributions (including all employer contributions and employee salary reduction contributions) and premiums related to each Company Plan, including all bonuses, benefits and other compensation due to or on behalf of any employees or other service providers, have been timely paid or made in accordance with the requirements of Applicable Law or, to the extent not yet due, properly accrued in accordance with GAAP. No Benefit Plan has any unfunded liabilities that have not been properly accrued in accordance with GAAP.
(e) Except as set forth in Section 4.15(e) of the Seller Disclosure Schedule, none of the Company, any Company Subsidiary or any ERISA Affiliate contributes to (or has in the past six years maintained any actual or contributed to) a potential liability with respect to any multiemployer plan (as defined in Section 3(37) of ERISA) (each, a “Multiemployer Plan”). None of the Company, any Company Subsidiary or any ERISA Affiliate has incurred any withdrawal liability with respect to any Multiemployer Plan. To the knowledge of Seller, no Multiemployer Plan (i) has filed a notice of reorganization, insolvency or a termination under Section 4041A of Title IV Plan;
of ERISA, (5ii) is in “at risk” status within the Company and its Subsidiaries are not subject to any material liability, including additional contributions, fine, penalties or loss meaning of Tax Deductions as a result of the administration or operation of any Company Plan that is a “group health plan” (as such term is defined in Section 5000(b)(1430(i) of the Code);, or (iii) is in “endangered status” or “critical status” within the meaning of Section 432(b) of the Code. The Company, each Company Subsidiary and each ERISA Affiliate has made all required contributions to any Multiemployer Plan when due.
(6f) no No Company Plan provides welfare benefits, including death benefits with respect to any former or medical benefits (whether or not insured) beyond retirement or termination of service, other than coverage mandated solely by applicable Law;
(7) none current employee of the Company Plans provides for payment or any Company Subsidiary or any employee set forth in Section 8.07(a) of an amount the Seller Disclosure Schedule, or provision any spouse or dependent of a benefitany such employee, beyond the employee’s retirement or other termination of employment other than (1) coverage mandated by Part 6 of Title I of ERISA or Section 4980B of the Code, or (2) benefits in the nature of severance pay with respect to one or more of the employment contracts set forth in Section 4.15(a) of the Seller Disclosure Schedule.
(g) Except with respect to payments disclosed on Section 4.15(g) of the Seller Disclosure Schedule, the increase of a payment transactions contemplated by this Agreement shall not, either alone or benefitin connection with other events, give rise to the payment of a contingent any amount that would not be deductible by the Company or provision of a contingent benefit, or the acceleration of the payment, funding or vesting of an amount or benefit determined or occasioned, in whole or in part, any Company Subsidiary by reason of Section 280G of the Code. Neither the execution and delivery of this Agreement or Agreement, nor the consummation of the transactions contemplated hereby whether alone or together with any other event; and
(8) no amounts payable under the Company Plans will fail to be deductible for federal income tax purposes by virtue of Section 280G of the Code as a result of the occurrence of the transactions contemplated by this Agreement, either alone or in combination with another event.
(c) The Company and its Subsidiaries have not entered into any employment or employment-related agreements (including change in control agreements and offer letters) to which a named individual is a party, other than those set forth on Section 3.13(a) of the Company Disclosure Letter.
(d) Each Company Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A of the Code and related Treasury Department guidance has (i) been operated between January 1entitle any current or former employee, 2005 and December 31, 2008, in good faith compliance with Section 409A of the Code and Notice 2005-01 and consultant or director to any payment; (ii) since January 1increase the amount of compensation or benefits due to any such employee, 2009 consultant or director; or (iii) accelerate the vesting, funding or such later date permitted under applicable guidance)time of payment of any compensation, been operated in compliance, and is in documentary compliance, in all material respects, with the requirements of Section 409A of the Code.
(e) Neither the Company nor any Subsidiary has a binding commitment to create any additional material Company Plan, or any plan, agreement or arrangement that would be a material Company Plan if adopted, or to modify or terminate any existing material Company Plan, except as required by applicable Law.
(f) The ESOP is an “employee stock ownership plan” within the meaning of Section 4975(e)(7) of the Code. Neither the Company nor the ESOP has, within the three year period immediately preceding the date of this Agreement, received any inquiry or notice from the IRS or any other governmental agency the effect of which is to question the qualification or status of the ESOP or any transaction entered into by the ESOP or the Company (with respect to the ESOP). The ESOP and the Company have filed all reports, returns equity award or other documents in respect of the ESOP which are required to be filed pursuant to the applicable provisions of the Code and ERISA and the regulations thereunder. All loans entered into by the ESOP (the “ESOP Loans”) constitute “exempt loans” under Treasury Regulation Section 54.4975-7(b)(1)(iii). The securities held by the ESOP constitute “employer securities” under ERISA Section 407(d)(1) and Section 409(l) of the Code and “qualifying employer securities” under ERISA Section 407(d)(5) and Section 4975(e)(8) of the Codebenefit.
Appears in 1 contract
Benefit Plans. (a) Section 3.13(aSchedule 3.19(a) of the Company Disclosure Letter contains a true and complete list of each Schedule sets forth all material Company Plan. For purposes of this Agreement, “Company Plan” means each “employee benefit plan” plans, programs, policies, practices, agreements and arrangements (within the meaning of including, but not limited to, all plans described in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”)), stock purchase, stock option, severance, employment, change-in-control, fringe benefit, bonus, incentive, deferred compensation, employee loan or other employee benefit plan, agreement, program, policy or other arrangement, whether or not subject to ERISA (including any funding mechanism therefor now in effect or required in the future as a result of the transactions contemplated by this Agreement or otherwise), whether written or unwritten, in each case (i) maintained or contributed to by the Company or for the benefit of any of its Subsidiaries for current or former directorsofficers, employees employees, directors or consultants of the Company independent contractors, or (ii) under which (A) any employee, director or consultant or former employee, director or consultant of the Company or any of its Subsidiaries has any present or future right to benefits and (B) the Company or any of its Subsidiaries has had or has any present or future liability or obligation to contribute. With with respect to each material Company Plan, which the Company has furnished (or made available to Parent a current, accurate and complete copy thereof, including any amendments, and, to the extent applicable: (i) any related trust agreement or other funding instrument, (ii) the most recent determination, opinion or advisory letter of the Internal Revenue Service (the “IRS”), if applicable, (iii) any summary plan description or other material written communications by the Company or its Subsidiaries to their employees concerning the extent of the benefits provided under a Company Plan and (iv) the most recent (A) Form 5500 and attached schedules, (B) audited financial statements, and (C) actuarial valuation reports.
(b) Except as disclosed in Section 3.13(b) of the Company Disclosure Letter and except as, individually or in the aggregate, has not had, and would not reasonably could be expected to have) any obligation or liability (including, a Material Adverse Effect on the Companybut not limited to, with respect to the Company Plans:
(1) each Company Plan has been established and administered in accordance with its terms and in compliance with the applicable provisions of ERISA, the Code and all other applicable Laws, and in the six years preceding the date hereof no reportable event, as defined in Section 4043 of ERISA, no prohibited transaction, as described in Section 406 of ERISA or Section 4975 of the Code, or failure to satisfy the minimum funding standards, within the meaning of Section 302 of ERISA and 412 of the Code, has occurred with respect to any Company Plan, and all contributions required to be made under the terms of any Company Plan have been timely made;
(2) each Company Plan intended to be qualified liabilities arising from affiliation under Section 401(a) of the Code (A) has received a favorable determination, advisory and/or opinion letter, as applicable, from the IRS that it is so qualified, (B) the trust maintained thereunder has been determined to be exempt from taxation under Section 501(a) of the Code and (C) to the Company’s knowledge, nothing has occurred since the date of such letter that could reasonably be expected to cause the loss of such qualified status of such Company Plan;
(3) there is no Action (including any investigation, audit or other administrative proceeding) by the Department of Labor, the Pension Benefit Guaranty Corporation, the IRS or any other Governmental Entity or by any plan participant or beneficiary pending, or to the knowledge of the Company, threatened, relating to the Company Plans, any fiduciaries thereof to which the Company could have an indemnification obligation with respect to their duties to the Company Plans or the assets of any of the trusts under any of the Company Plans (other than routine claims for benefits) nor, to the knowledge of the Company, are there facts or circumstances that exist that could reasonably be expect to give rise to any such Actions;
(4) no Company Plan is or, within the preceding six years, has been subject to Title IV of ERISA or subject to Section 412 of the Code and neither the Company nor any Person that is a member of a “controlled group of corporations” with, or is under “common control” with, or is a member of the same “affiliated service group” with the Company, in each case, as defined in Sections 414(b), (c), (m) or (o) of the Code, maintains or contributes Section 4001 of ERISA) (each, a “Benefit Plan” and collectively, the “Benefit Plans”). Except as disclosed on Schedule 3.19 of the Disclosure Schedule, there has been no amendment or announcement (written or oral) by the Company relating to (a change in participation or has coverage under, any Benefit Plan that could reasonably be expected to materially increase the expense of maintaining such Benefit Plan above the level of expense incurred with respect thereto for the most recent fiscal year included in the past six years maintained or contributed to) a multiemployer plan as defined in financial statements provided pursuant to Section 3(37) of ERISA or a Title IV Plan;
(5) 3.7. Each Benefit Plan can be terminated by the Company and its Subsidiaries are not subject to at any time without material liability, including additional contributions, fine, penalties liability or loss expense (other than for any benefits accrued thereunder at the time of Tax Deductions as a result such termination). None of the administration or operation of any Company Plan that is a “group health plan” (as such term is defined in Section 5000(b)(1) of the Code);
(6) no Company Plan provides welfare benefits, including death or medical benefits (whether or not insured) beyond retirement or termination of service, other than coverage mandated solely by applicable Law;
(7) none rights of the Company Plans provides for payment of an amount or provision of a benefit, the increase of a payment or benefit, the payment of a contingent amount or provision of a contingent benefit, or the acceleration of the payment, funding or vesting of an amount or benefit determined or occasioned, under any Benefit Plan will be impaired in whole or in part, any way by reason of the execution of this Agreement or the consummation of the transactions contemplated hereby whether alone or together with any other event; and
(8) no amounts payable under the Company Plans will fail to be deductible for federal income tax purposes by virtue of Section 280G of the Code as a result of the occurrence of the transactions contemplated by this Agreement.
(b) With respect to each Benefit Plan, either alone the Company has made available to the Buyer (to the extent applicable to such Benefit Plan) true and complete copies of: (i) all documents embodying such Benefit Plan (including all amendments thereto) or, if such Benefit Plan is not in writing, a written description of such Benefit Plan; (ii) the last three annual reports (Form 5500 series and all schedules and financial statements attached thereto) filed with respect to such Benefit Plan; (iii) the most recent summary plan description, and all summaries of material modifications related thereto, distributed with respect to such Benefit Plan; (iv) all contracts and agreements (and any amendments thereto) relating to such Benefit Plan, including, without limitation, all trust agreements, investment management agreements, annuity contracts, insurance contracts, bonds, indemnification agreements and service provider agreements; (v) the most recent determination letter issued by the Internal Revenue Service (the “IRS”) with respect to such Benefit Plan; (vii) all written communications to employees or beneficiaries, generally (A) in combination which the provisions of such Benefit Plan, as set forth or described therein, differ materially from such provisions as set forth or described in the other information or materials furnished under this subsection (b), or (B) relating to the amendment, creation or termination of such Benefit Plan, or to an increase or decrease in benefits, acceleration of payments or vesting or any other event with another eventrespect to such Benefit Plan that could result in a material liability to the Company; (viii) all material correspondence to or from any governmental entity or agency relating to such Benefit Plan sent or received in the past three (3) years; and (ix) all coverage, nondiscrimination, top heavy and Code Section 415 tests performed with respect to such Benefit Plan for the three most recently completed plan years.
(c) The Company and its Subsidiaries have not entered into any employment or employment-related agreements (including change in control agreements and offer letters) to which a named individual is a party, other than those Except as set forth on Schedule 3.19 of the Disclosure Schedule, with respect to each Benefit Plan: (i) such Benefit Plan is, and at all times since inception has been, maintained, operated, administered and funded in accordance with its terms and all Legal Requirements in all material respects; (ii) the Company and each other Person (including, without limitation, all fiduciaries) have, at all times and in all material respects, properly performed all of their duties and obligations under or with respect to such Benefit Plan; (iii) all returns, reports, notices, statements and other disclosures relating to such Benefit Plan required to be filed with any governmental authority or distributed to any participant therein have been properly prepared and duly filed or distributed in a timely manner; (iv) all contributions, premiums and other payments due or required to be paid to (or with respect to) such Benefit Plan have been timely paid, or, if not yet due, have been accrued as a liability on the Balance Sheet; (v) no breach of fiduciary duty has occurred with respect to any Benefit Plan(vi) no “prohibited transaction” (within the meaning of either Section 3.13(a4975(c) of the Code or Section 406 or 407 of ERISA) has occurred with respect to such Benefit Plan; and (vii) the Company Disclosure Letterhas not incurred, and there exists no condition or set of circumstances in connection with which the Company or Buyer could incur, directly or indirectly, any material liability or expense (except for routine contributions and benefit payments) under ERISA, the Code or any other applicable Legal Requirement or pursuant to any indemnification or similar agreement, with respect to such Benefit Plan.
(d) Each Company Benefit Plan that is intended to be qualified under Section 401(a) of the Code is so qualified and each trust and group annuity contract related thereto is exempt from taxation under Section 501(a) of the Code. Each such Benefit Plan (i) is the subject of an unrevoked favorable determination letter from the IRS with respect to such Benefit Plan’s qualified status under the Code, as amended by that legislation commonly referred to as “GUST” and “EGTRRA” and all subsequent legislation, (ii) has remaining a period of time under the Code or applicable Treasury regulations or IRS pronouncements in which to request, and make any amendments necessary to obtain, such a letter from the IRS, or (iii) is a prototype plan or volume submitter plan entitled, under applicable IRS guidance, to rely on the favorable opinion or advisory letter issued by the IRS to the sponsor of such prototype or volume submitter plan. To the Company’s knowledge, nothing has occurred, or is reasonably expected by the Company or any Seller to occur, that could adversely affect the qualification or exemption of any such Benefit Plan or any trust or group annuity contract related thereto. The Company has been informed by the relevant third party administrators that no such Benefit Plan is a “top-heavy plan,” as defined in Section 416 of the Code.
(e) The Company is not, and has not within the past six (6) years been, a member of (i) a controlled group of corporations, within the meaning of Section 414(b) of the Code, (ii) a group of trades or businesses under common control, within the meaning of Section 414(c) of the Code, (iii) an affiliated service group, within the meaning of Section 414(m) of the Code, or (iv) any other group of Persons treated as a single employer under Section 414(o) of the Code.
(f) The Company does not sponsor, maintain or contribute to, and has not previously sponsored, maintained or contributed to (or been obligated to sponsor, maintain or contribute to), (a) a “multiemployer plan,” as defined in Section 3(37) or 4001(a)(3) of ERISA or 414(f) of the Code, (b) a multiple employer plan within the meaning of Section 4063 or 4064 of ERISA or Section 413(c) of the Code, (c) an employee benefit plan that is subject to Part 3 of Subtitle B of Title I of ERISA, Title IV of ERISA or Section 412 of the Code, or (d) a “multiple employer welfare arrangement,” as defined in Section 3(40) of ERISA.
(g) Neither the Company nor any Benefit Plan provides or has any obligation to provide (or contribute toward the cost of) life insurance, medical benefits or any other welfare benefits (within the meaning of Section 3(1) of ERISA) with respect to any current or former officer, employee, director, agent or independent contractor of the Company after his or her retirement or other termination of service for any reason, except to the extent required by Part 6 of Subtitle B of Title I of ERISA and Section 4980B(f) of the Code.
(h) There are no lawsuits or claims (other than routine claims for benefits) pending or, to the knowledge of the Company, threatened with respect to (or against the assets of) any Benefit Plan, nor, to the Company’s knowledge is there a basis for any such lawsuit or claim. The Company has not been notified that any Benefit Plan is currently under investigation, audit or review, directly or indirectly, by the IRS, the Department of Labor or any other government authority.
(i) Schedule 3.19 of the Disclosure Schedule sets forth a complete and accurate list of all “nonqualified deferred compensation planplans” (within the meaning of Section 409A of the Code Code) sponsored or maintained by the Company (or to which the Company is (or was) a party), and related Treasury Department guidance in which any of their current or former officers, employees, agents, directors or independent contractors participated at any time since January 1, 2005. Each such plan has (i) been operated between and administered since January 1, 2005 and December 31, 2008, in good faith compliance with Section 409A of the Code and any guidance issued by the United States Treasury Department or the IRS thereunder (including, without limitation, IRS Notice 2005-01 and (ii) since January 1, 2009 (or such later date permitted under applicable guidancethe proposed Treasury regulations issued on September 29, 2005, and the final Treasury regulations issued on April 10, 2007), to the extent applicable to such plan. No such plan has been operated in compliance, and is in documentary compliance, in all material respects, with the requirements of Section 409A of the Code.
“materially modified” (e) Neither the Company nor any Subsidiary has a binding commitment to create any additional material Company Plan, or any plan, agreement or arrangement that would be a material Company Plan if adopted, or to modify or terminate any existing material Company Plan, except as required by applicable Law.
(f) The ESOP is an “employee stock ownership plan” within the meaning of IRS Notice 2005-1 or Proposed Treasury Regulation Section 4975(e)(71.409A-6(a)(4)) at any time after October 3, 2004.
(j) Except as set forth on Schedule 3.19 of the Code. Neither Disclosure Schedule, neither the Company execution of this Agreement nor the ESOP hasconsummation of the transactions contemplated by this Agreement will (i) result in any benefit or right becoming established or increased, within or accelerate the three year period immediately preceding time of payment or vesting, under any Benefit Plan, (ii) increase the date amount of this Agreementcompensation due to any individual or forgive any indebtedness owed by any individual, received or (iii) entitle any inquiry or notice from the IRS individual to severance pay, unemployment compensation or any other governmental agency payment from the effect of which is to question the qualification or status of the ESOP Company, Seller or any transaction entered into by the ESOP or the Company (with respect to the ESOP). The ESOP and the Company have filed all reports, returns or other documents in respect of the ESOP which are required to be filed pursuant to the applicable provisions of the Code and ERISA and the regulations thereunder. All loans entered into by the ESOP (the “ESOP Loans”) constitute “exempt loans” under Treasury Regulation Section 54.4975-7(b)(1)(iii). The securities held by the ESOP constitute “employer securities” under ERISA Section 407(d)(1) and Section 409(l) of the Code and “qualifying employer securities” under ERISA Section 407(d)(5) and Section 4975(e)(8) of the CodeBenefit Plan.
Appears in 1 contract
Sources: Stock Purchase Agreement (Esterline Technologies Corp)
Benefit Plans. (a) Section 3.13(a4.12(a) of the Company Disclosure Letter contains a true and complete list of each material Company Plan. For purposes of this Agreement, “Company Plan” means each “employee benefit plan” (within the meaning of Section section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), whether or not subject to ERISA), “multiemployer plans” (within the meaning of ERISA section 3(37)), and all plans, contracts, programs, agreements or arrangements (including any employment contracts) providing for stock purchase, stock option, phantom stock or other equity-based plans, severance, employment, change-in-control, fringe benefit, bonus, incentive, deferred compensation, employee loan supplemental retirement, health, life, or disability insurance, dependent care and all other employee benefit planand compensation plans, agreement, program, policy or other arrangementprograms and arrangements, whether or not subject to ERISA (including any funding mechanism therefor now in effect or required in the future as a result of the transactions contemplated by this Agreement or otherwise), whether formal or informal, written or unwrittenoral, in each case (i) maintained by the Company legally binding or any of its Subsidiaries for current or former directorsnot, employees or consultants of the Company or (ii) under which (A) any employee, director or consultant current or former employee, director or consultant of the Company or its Subsidiaries (or any of its Subsidiaries their dependents) has any present or future right to compensation or benefits and (B) or the Company or any of its Subsidiaries has had sponsors or maintains, is making contributions to or has any present or future liability or obligation (contingent or otherwise) or with respect to contributewhich it is otherwise bound. The Company has provided or made available to Parent a current, accurate and complete copy of each Company Plan, or if such Company Plan is not in written form, a written summary of all of the material terms of such Company Plan. With respect to each material Company Plan, the Company has furnished or made available to Parent a current, accurate and complete copy thereof, including any amendments, andof, to the extent applicable: (i) any related trust agreement or other funding instrument, (ii) the most recent determination, opinion or advisory determination letter of the Internal Revenue Service or any successor agency (the “IRS”), if applicable, (iii) any summary plan description or description, summary of material modifications, and other similar material written communications by (or a written description of any material oral communications) to the employees of the Company or its Subsidiaries to their employees concerning the extent of the benefits provided under a Company Plan and Plan, (iv) for the three most recent years, (A) the Form 5500 and attached schedules, (B) audited financial statements, and (C) actuarial valuation reports.
reports and (bD) Except as disclosed in Section 3.13(b) of the Company Disclosure Letter and except as, individually or in the aggregate, has not hadattorney’s response to an auditor’s request for information, and would not reasonably be expected to have, a Material Adverse Effect on the Company, (v) any non-routine correspondence with respect to the Company Plans:
(1) each Company Plan has been established and administered in accordance with its terms and in compliance with the applicable provisions of ERISA, the Code and all other applicable Laws, and in the six years preceding the date hereof no reportable event, as defined in Section 4043 of ERISA, no prohibited transaction, as described in Section 406 of ERISA or Section 4975 of the Code, or failure to satisfy the minimum funding standards, within the meaning of Section 302 of ERISA and 412 of the Code, has occurred with respect to any Company Plan, and all contributions required to be made under the terms of any Company Plan have been timely made;
(2) each Company Plan intended to be qualified under Section 401(a) of the Code (A) has received a favorable determination, advisory and/or opinion letter, as applicable, from the IRS that it is so qualified, (B) the trust maintained thereunder has been determined to be exempt from taxation under Section 501(a) of the Code and (C) to the Company’s knowledge, nothing has occurred since the date of such letter that could reasonably be expected to cause the loss of such qualified status of such Company Plan;
(3) there is no Action (including any investigation, audit or other administrative proceeding) by the Department of Labor, the Pension Benefit Guaranty Corporation, the IRS or any other Governmental Entity or by any plan participant or beneficiary pending, or to the knowledge of the Company, threatened, relating to the Company Plans, any fiduciaries thereof to which the Company could have an indemnification obligation with respect to their duties to the Company Plans or the assets of any of the trusts under any of the Company Plans (other than routine claims for benefits) nor, to the knowledge of the Company, are there facts or circumstances that exist that could reasonably be expect to give rise to any such Actions;
(4) no Company Plan is or, within the preceding six years, has been subject to Title IV of ERISA or subject to Section 412 of the Code and neither the Company nor any Person that is a member of a “controlled group of corporations” with, or is under “common control” with, or is a member of the same “affiliated service group” with the Company, in each case, as defined in Sections 414(b), (c), (m) or (o) of the Code, maintains or contributes to (or has in the past six years maintained or contributed to) a multiemployer plan as defined in Section 3(37) of ERISA or a Title IV Plan;
(5) the Company and its Subsidiaries are not subject to any material liability, including additional contributions, fine, penalties or loss of Tax Deductions as a result of the administration or operation of any Company Plan that is a “group health plan” (as such term is defined in Section 5000(b)(1) of the Code);
(6) no Company Plan provides welfare benefits, including death or medical benefits (whether or not insured) beyond retirement or termination of service, other than coverage mandated solely by applicable Law;
(7) none of the Company Plans provides for payment of an amount or provision of a benefit, the increase of a payment or benefit, the payment of a contingent amount or provision of a contingent benefit, or the acceleration of the payment, funding or vesting of an amount or benefit determined or occasioned, in whole or in part, by reason of the execution of this Agreement or the consummation of the transactions contemplated hereby whether alone or together with any other event; and
(8) no amounts payable under the Company Plans will fail to be deductible for federal income tax purposes by virtue of Section 280G of the Code as a result of the occurrence of the transactions contemplated by this Agreement, either alone or in combination with another event.
(c) The Company and its Subsidiaries have not entered into any employment or employment-related agreements (including change in control agreements and offer letters) to which a named individual is a party, other than those set forth on Section 3.13(a) of the Company Disclosure Letter.
(d) Each Company Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A of the Code and related Treasury Department guidance has (i) been operated between January 1, 2005 and December 31, 2008, in good faith compliance with Section 409A of the Code and Notice 2005-01 and (ii) since January 1, 2009 (or such later date permitted under applicable guidance), been operated in compliance, and is in documentary compliance, in all material respects, with the requirements of Section 409A of the Code2020.
(e) Neither the Company nor any Subsidiary has a binding commitment to create any additional material Company Plan, or any plan, agreement or arrangement that would be a material Company Plan if adopted, or to modify or terminate any existing material Company Plan, except as required by applicable Law.
(f) The ESOP is an “employee stock ownership plan” within the meaning of Section 4975(e)(7) of the Code. Neither the Company nor the ESOP has, within the three year period immediately preceding the date of this Agreement, received any inquiry or notice from the IRS or any other governmental agency the effect of which is to question the qualification or status of the ESOP or any transaction entered into by the ESOP or the Company (with respect to the ESOP). The ESOP and the Company have filed all reports, returns or other documents in respect of the ESOP which are required to be filed pursuant to the applicable provisions of the Code and ERISA and the regulations thereunder. All loans entered into by the ESOP (the “ESOP Loans”) constitute “exempt loans” under Treasury Regulation Section 54.4975-7(b)(1)(iii). The securities held by the ESOP constitute “employer securities” under ERISA Section 407(d)(1) and Section 409(l) of the Code and “qualifying employer securities” under ERISA Section 407(d)(5) and Section 4975(e)(8) of the Code.
Appears in 1 contract
Benefit Plans. (a) Section 3.13(a) of the The Company Disclosure Letter contains has provided to Parent a true and complete list of each material Company Plan. For purposes of this Agreement, “Company Plan” means each “employee benefit plan” (within the meaning of Section section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”)), “multiemployer plans” (within the meaning of ERISA section 3(37) or 4001(a)(3) or other similar Law), and all stock purchase, phantom stock or other equity-based plan, stock option, severance, employment, collective bargaining, change-in-control, fringe benefit, cafeteria, Section 125, bonus, incentive, deferred compensation, employee loan or compensation and all other employee benefit planand compensation plans, agreementagreements, programprograms, policy policies or other arrangementarrangements, whether or not subject to ERISA (including any funding mechanism therefor now in effect or required in the future as a result of the transactions contemplated by this Agreement or otherwise), whether formal or informal, written or unwrittenoral, in each case (i) maintained by the Company legally binding or any of its Subsidiaries for current or former directorsnot, employees or consultants of the Company or (ii) under which (A) any employee, director or consultant current or former employee, director or consultant of the Company or its Subsidiaries (or any of their spouses, dependents, beneficiaries, or alternate payees) has any present or future right to compensation or benefits from the Company or its Subsidiaries, or the Company or its Subsidiaries has any present or future right to benefits and (B) the Company or any of its Subsidiaries has had or has any present or future liability or obligation with respect to contributewhich it is otherwise bound. All such plans, agreements, programs, policies and arrangements shall be collectively referred to as the “Company Plans”. With respect to each material Company Plan, the Company has furnished or made available to Parent a current, accurate and complete copy thereof, (including any amendments, ) of the executed formal plan documents thereof and, to the extent applicable: (i) any related trust agreement or other funding instrument, (ii) the most recent determination, opinion or advisory determination letter of the Internal Revenue Service (the “IRS”), if applicable, (iii) any the current summary plan description or (including any summaries of material modifications) and other material written communications by the Company or its Subsidiaries to their employees concerning the extent of the benefits provided under a Company Plan and Plan, (iv) all current written administrative services, investment management, and similar agreements, (v) any material correspondence within the past five years with the Internal Revenue Service, Department of Labor, Pension Benefit Guaranty Corporation, or any other federal, state, local or other governmental agency or regulatory body, and (vi) for the two most recent years (A) the Form 5500 and attached schedules, (B) audited financial statements, and (C) actuarial valuation and funding reports, (D) attorney’s response to an auditor’s request for information, (E) any formal notices or disclosures including without limitation redacted samples of forms 1094-C, 1095-C, and similar returns, and (F) applicable nondiscrimination and compliance testing results.
(b) Except as disclosed in Section 3.13(b) of the Company Disclosure Letter and except as, individually or in the aggregate, has not had, and would not reasonably be expected to have, a Material Adverse Effect on the Company, with With respect to the Company PlansPlans and except as would not have a Material Adverse Effect:
(1i) each Company Plan has been established established, operated, and administered in accordance with its terms and in compliance with the applicable provisions of ERISA, ERISA and the Code and all any other applicable Lawslaw, and in the six years preceding the date hereof no breach of fiduciary duty, no reportable event, as defined in Section 4043 of ERISA, no prohibited transaction, as described in Section 406 of ERISA or Section 4975 of the Code, or failure to satisfy the minimum accumulated funding standardsdeficiency, within the meaning of as defined in Section 302 of ERISA and 412 of the Code, has occurred with respect to any Company Plan, and all contributions required to be made under the terms of any Company Plan have been timely made;
(2ii) each Company Plan intended to be qualified under Section 401(a) of the Code (A) has received a favorable determination, advisory and/or opinion letter, as applicable, from the IRS that it is so qualifiedqualified (and, (B) to the trust maintained thereunder has been determined to be exempt from taxation under Section 501(a) knowledge of the Code and (C) to the Company’s knowledge, nothing has occurred since the date of such letter that could would reasonably be expected to cause the loss of such qualified status of such Company Plan);
(3iii) there is no Action (including any investigation, audit or other administrative proceedingexcept as set forth in Section 3.11(b) by the Department of Labor, the Pension Benefit Guaranty Corporation, the IRS or any other Governmental Entity or by any plan participant or beneficiary pending, or to the knowledge of the Company, threatened, relating to the Company Plans, any fiduciaries thereof to which the Company could have an indemnification obligation with respect to their duties to the Company Plans or the assets of any of the trusts under any of the Company Plans Disclosure Letter, neither the Company nor any Company ERISA Affiliate has ever sponsored, maintained, contributed to, or been obligated under ERISA or other applicable Law or any agreement or otherwise to contribute to, or otherwise have any current or potential liability with respect to, any (i) “defined benefit plan” (as defined in ERISA Section 3(35), Section 414(j) of the Code, or other similar Law), (ii) “multiemployer plan” (as defined in ERISA Sections 3(37) or 4001(a)(3) or other similar Law), (iii) “multiple employer plan” (meaning a plan sponsored by more than routine claims for benefitsone employer within the meaning of ERISA Sections 210, 4063 or 4064 or Section 413(c) norof the Code or other similar Law) or (iv) “multiple employment welfare arrangement,” (as defined under Section 3(40) of ERISA (without regard to Section 514(b)(6)(B) of ERISA) or other similar Law), and, to the knowledge of the Company, are there facts or no circumstances that exist that under which the Company could reasonably be expect expected to give rise to incur any such Actions;
(4) no Company Plan is or, within the preceding six years, has been subject to liability under Title IV of ERISA or subject to Section 412 of the Code and neither or other similar Law. For the purposes of this paragraph, “Company nor ERISA Affiliate” means any Person that is a member of a “controlled group of corporations” withperson, entity, trade, or is under “common control” with, or is a member of the same “affiliated service group” with the Company, in each case, as defined in Sections 414(b), (c), (m) or (o) of the Code, maintains or contributes to (or has in the past six years maintained or contributed to) a multiemployer plan as defined in Section 3(37) of ERISA or a Title IV Plan;
(5) the Company and its Subsidiaries are not subject to any material liability, including additional contributions, fine, penalties or loss of Tax Deductions as a result of the administration or operation of any Company Plan that is a “group health plan” (as such term is defined in Section 5000(b)(1) of the Code);
(6) no Company Plan provides welfare benefits, including death or medical benefits business entities (whether or not insuredincorporated) beyond retirement or termination of service, other than coverage mandated solely by applicable Law;
(7) none of that would be treated together with the Company Plans provides for payment or any of an amount or provision of a benefit, the increase of a payment or benefit, the payment of a contingent amount or provision of a contingent benefit, or the acceleration of the payment, funding or vesting of an amount or benefit determined or occasioned, in whole or in part, by reason of the execution of this Agreement or the consummation of the transactions contemplated hereby whether alone or together with any other event; and
(8) no amounts payable under the Company Plans will fail to be deductible for federal income tax purposes by virtue of Section 280G of the Code its Affiliates as a result of the occurrence of the transactions contemplated by this Agreement, either alone or in combination with another event.
(c) The Company and its Subsidiaries have not entered into any employment or employment-related agreements (including change in control agreements and offer letters) to which a named individual is a party, other than those set forth on Section 3.13(a) of the Company Disclosure Letter.
(d) Each Company Plan that is a “nonqualified deferred compensation plansingle employer” within the meaning of Section 409A 414 of the Code and related Treasury Department guidance has (i) been operated between January 1, 2005 and December 31, 2008, in good faith compliance with or Section 409A 4001 of the Code and Notice 2005-01 and (ii) since January 1, 2009 (or such later date permitted under applicable guidance), been operated in compliance, and is in documentary compliance, in all material respects, with the requirements of Section 409A of the Code.
(e) Neither the Company nor any Subsidiary has a binding commitment to create any additional material Company Plan, or any plan, agreement or arrangement that would be a material Company Plan if adopted, or to modify or terminate any existing material Company Plan, except as required by applicable Law.
(f) The ESOP is an “employee stock ownership plan” within the meaning of Section 4975(e)(7) of the Code. Neither the Company nor the ESOP has, within the three year period immediately preceding the date of this Agreement, received any inquiry or notice from the IRS or any other governmental agency the effect of which is to question the qualification or status of the ESOP or any transaction entered into by the ESOP or the Company (with respect to the ESOP). The ESOP and the Company have filed all reports, returns or other documents in respect of the ESOP which are required to be filed pursuant to the applicable provisions of the Code and ERISA and the regulations thereunder. All loans entered into by the ESOP (the “ESOP Loans”) constitute “exempt loans” under Treasury Regulation Section 54.4975-7(b)(1)(iii). The securities held by the ESOP constitute “employer securities” under ERISA Section 407(d)(1) and Section 409(l) of the Code and “qualifying employer securities” under ERISA Section 407(d)(5) and Section 4975(e)(8) of the Code.ERISA;
Appears in 1 contract
Sources: Merger Agreement (Bluegreen Vacations Holding Corp)
Benefit Plans. (a) Section 3.13(a) of the Company Disclosure Letter contains a true and complete list of each material Company Plan. For purposes of this AgreementSection 3.13, the term “Company Plan” means each “any of the following that is maintained by the Company or any of its Subsidiaries or to which the Company or any of its Subsidiaries contributes or is obligated to contribute or under which the Company or any of its Subsidiaries directly or indirectly provides payments or benefits to one or more employees or former employees of, or current or former consultants or other service providers to, the Company or any of its Subsidiaries or to any beneficiary of any of the foregoing: an employee benefit plan” plan (within the meaning of as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”)); a plan, stock purchasepolicy, agreement or arrangement that would be an employee benefit plan (as so defined) but for the fact that it benefits non-employee service providers; and/or any other deferred compensation, incentive, severance, insurance, welfare, stock option, severanceother stock-based or phantom stock-based, employment, changefringe-in-control, fringe benefit, bonus, incentive, deferred compensation, employee loan benefit or other employee benefit plan, agreementpolicy, program, policy agreement or other arrangementarrangement of any kind or description, whether or not reduced to writing. Section 3.13(a) of the Disclosure Schedule includes a true and complete list of all Plans subject to ERISA (including any funding mechanism therefor now in effect or required in the future as a result laws of the transactions contemplated by this Agreement or otherwise), whether written or unwritten, in each case (iUnited States and a description of all Foreign Benefit Plans. Except as set forth on Section 3.13(a) maintained by the Company or any of its Subsidiaries for current or former directors, employees or consultants of the Company or (ii) under which (A) any employee, director or consultant or former employee, director or consultant of the Company or any of its Subsidiaries has any present or future right to benefits and (B) the Company or any of its Subsidiaries has had or has any present or future liability or obligation to contribute. With respect to each material Company PlanDisclosure Schedule, the Company has furnished or made available provided to Parent a currentcomplete copy of each Plan that has been reduced to writing, accurate together with all amendments, a written summary of the material terms of each Plan that has not been reduced to writing, and, in the case of each Plan, a true and complete copy thereof, including any amendments, and, of each of the following that exists and relates to the extent applicablesuch Plan: (i) any related each trust agreement or other funding instrumentarrangement; each insurance contract; each administrative services agreement and recordkeeping agreement; each summary plan description or similar summary, (ii) together with all summaries of material modifications and other amendments; the most recent determination, determination letter or opinion or advisory letter of received from the Internal Revenue Service (the “IRS”); the three most recently filed Form 5500 Series annual reports, if applicabletogether with all schedules, (iii) attachments, and related opinions; and any summary plan description correspondence from or to the IRS, the Department of Labor, or other material written communications by the Company government department or its Subsidiaries agency relating to their employees concerning the extent of the benefits provided under a Company Plan and (iv) the most recent (A) Form 5500 and attached schedules, (B) audited financial statements, and (C) actuarial valuation reportsan audit or penalty assessment or to requested relief from any liability or penalty relating to any Plan.
(b) Except as disclosed set forth in Section 3.13(b) of the Company Disclosure Letter and except asSchedule, individually or in the aggregate, has not had, and would not reasonably be expected to have, a Material Adverse Effect on the Company, with respect to the Company Plans:
(1) each Company Plan has been established and administered in accordance all material respects in compliance with its terms and in compliance with applicable law, including the applicable provisions Code. Without limiting the generality of ERISAthe foregoing, to the Code Knowledge of the Company and all other applicable Lawsits Subsidiaries, and in the six years preceding the date hereof (i) no reportable event, non-exempt “prohibited transaction” as defined in Section 4043 of ERISA, no prohibited transaction, as described in Section 406 of ERISA or Section 4975 of the Code, or failure to satisfy the minimum funding standards, within the meaning of Section 302 of ERISA and 412 of the Code, Code has occurred with respect to any Company PlanPlan subject to ERISA, and all contributions required (ii) no event has occurred nor does any fact exist that could reasonably be expected to be made give rise to a liability under Title I or Title IV of ERISA, or to an excise tax under Chapter 43 of the terms of Code, with respect to any Company Plan. Each Plan have been timely made;
(2) each Company Plan that is intended to be qualified qualify under Section 401(a) of the Code (A) et seq. has received a favorable determination, advisory and/or opinion letter, as applicable, from the IRS that it is a determination letter or opinion so qualified, (B) the trust maintained thereunder has been determined to be exempt from taxation under Section 501(a) of the Code stating; and (C) to the Company’s knowledge, nothing has occurred since the date of such letter there are no facts that could reasonably be expected to cause the loss of have an adverse effect on such qualified status of such Company Plan;qualification.
(3c) there is no Action (including Neither the Company nor any investigation, audit of its Subsidiaries maintains or other administrative proceeding) by the Department of Labor, the Pension Benefit Guaranty Corporation, the IRS or any other Governmental Entity or by any plan participant or beneficiary pendingcontributes to, or has ever maintained or been required to the knowledge of the Company, threatened, relating to the Company Planscontribute to, any fiduciaries thereof to which the Company could have an indemnification obligation with respect to their duties to the Company Plans or the assets single employer plan (as such term is defined in Section 4001(b) of any of the trusts under any of the Company Plans (other than routine claims for benefitsERISA) nor, to the knowledge of the Company, are there facts or circumstances that exist that could reasonably be expect to give rise to any such Actions;
(4) no Company Plan is or, within the preceding six years, has been subject to Title IV of ERISA or subject to Section 412 of the Code and neither the Company nor any Person that is a member of a “controlled group of corporations” with, or is under “common control” with, or is a member of the same “affiliated service group” with the Company, in each case, as defined in Sections 414(b), (c), (m) or (o) of the Code, maintains or contributes to (or has in the past six years maintained or contributed to) a multiemployer plan as defined in Section 3(37) of ERISA or a Title IV Plan;
(5) the Company and its Subsidiaries are not subject to any material liability, including additional contributions, fine, penalties or loss of Tax Deductions as a result of the administration or operation of any Company Plan that is a “group health plan” (as such term is defined in Section 5000(b)(13(37) of the CodeERISA);
(6) no Company Plan provides welfare benefits, including death or medical benefits (whether or not insured) beyond retirement or termination nor has any of servicethem incurred any liability, other than coverage mandated solely by applicable Law;
(7) none of the Company Plans provides for payment of an amount or provision of a benefitincluding, the increase of a payment or benefitwithout limitation, the payment of a contingent amount or provision of a contingent benefitwithdrawal liability, or the acceleration of the payment, funding or vesting of an amount or benefit determined or occasioned, in whole or in part, by reason of the execution of this Agreement or the consummation of the transactions contemplated hereby whether alone or together with respect to any other event; and
(8) no amounts payable under the Company Plans will fail to be deductible for federal income tax purposes by virtue of Section 280G of the Code as a result of the occurrence of the transactions contemplated by this Agreement, either alone or in combination with another event.
(c) The Company and its Subsidiaries have not entered into any employment or employment-related agreements (including change in control agreements and offer letters) to which a named individual is a party, other than those set forth on Section 3.13(a) of the Company Disclosure Lettersuch plan.
(d) Each Company No Plan that is funded by, associated with or related to a “nonqualified deferred compensation planvoluntary employees’ beneficiary association” within the meaning of Section 409A of the Code and related Treasury Department guidance has (i501(c)(9) been operated between January 1, 2005 and December 31, 2008, in good faith compliance with Section 409A of the Code and Notice 2005-01 and (ii) since January 1, 2009 (or such later date permitted under applicable guidance), been operated in compliance, and is in documentary compliance, in all material respects, with the requirements of Section 409A of the Code.
(e) Except as set forth in Section 3.13(e) of the Disclosure Schedule, the Company has made or will accrue prior to the Closing Date all payments and contributions (including, without limitation, insurance premiums) due and payable as of the Closing Date to each Plan as required to be made under the terms of such Plan and applicable law.
(f) There are no actions, suits, arbitrations or claims (other than routine claims for benefits by employees or by beneficiaries or dependents of such employees arising in the normal course of operation of a Plan) pending, or to the Knowledge of the Company and its Subsidiaries, threatened, with respect to any Plan or any fiduciary or sponsor of a Plan with respect to their duties under such Plan or the assets of any trust under any such Plan.
(g) The Company and its Subsidiaries have complied in all material respects with the health care continuation requirements of Section 601 et. seq. of ERISA with respect to employees and their spouses, former spouses and dependents.
(h) Neither the Company nor any Subsidiary of its Subsidiaries has a binding commitment any obligations under any Plan to create provide post-retirement medical or other welfare benefits to any additional material Company Plan, employee or any plan, agreement former employee of the Company or arrangement that would be a material Company Plan if adopted, any of its Subsidiaries or to modify any other person, other than statutory liability for providing group health plan continuation coverage under Part 6 of Subtitle B of Title I of ERISA and Section 4980B of the Code or terminate any existing material Company Plan, except as required by under applicable Lawstate law.
(fi) The ESOP Except for the satisfaction of such advance notice periods as may be imposed by law, each Plan (other than individual agreements) may be terminated, suspended, amended and/or curtailed at any time, as to the continuation or accrual of future benefits, without the consent of any participant or beneficiary.
(j) Without limiting the generality of (b) through (i) above, with respect to each Plan that is an subject to the laws of a jurisdiction other than the United States (whether or not United States law also applies) (a “employee stock ownership plan” within the meaning of Section 4975(e)(7Foreign Benefit Plan”): (i) all contributions of the Code. Neither Company, its Subsidiaries and employees of the Company nor and its Subsidiaries to each Foreign Benefit Plan required by any Legal Requirement or by the ESOP hasterms of such Foreign Benefit Plan have been made, within or if, applicable accrued in accordance with normal accounting practices; (ii) the three year period immediately preceding fair market value of the assets of each funded Foreign Benefit Plan, the liability of each insurer for benefit obligations under any Foreign Benefit Plan funded through insurance or the book reserve established for any Foreign Benefit Plan, together with any accrued contributions is sufficient to procure or provide for the accrued benefit obligations, as of the date of this Agreement, received any inquiry or notice from the IRS or any other governmental agency the effect of which is to question the qualification or status of the ESOP or any transaction entered into by the ESOP or the Company (with respect to the ESOP). The ESOP all current and the Company have filed all reportsformer participants in such plan according to reasonable actuarial assumptions and no transaction contemplated by this Agreement shall cause such assets, returns reserve or other documents in respect of the ESOP which are insurance obligations to be less than such benefit obligations, and (iii) each Foreign Benefit Plan required to be filed pursuant to the registered has been registered and has been maintained in good standing with applicable provisions of the Code and ERISA and the regulations thereunder. All loans entered into by the ESOP regulatory authorities.
(the “ESOP Loans”k) constitute “exempt loans” under Treasury Regulation Except as set forth in Section 54.4975-7(b)(1)(iii). The securities held by the ESOP constitute “employer securities” under ERISA Section 407(d)(1) and Section 409(l3.13(k) of the Code and “qualifying employer securities” under ERISA Section 407(d)(5) and Section 4975(e)(8) Disclosure Schedule there are no issued or outstanding stock rights, stock appreciation rights, phantom stock awards, restricted stock awards, dividend equivalent awards, or other stock-based awards or similar rights pursuant to which any Person is or may be entitled to receive any payment or other consideration or value based upon, relating to, or valued by reference to, the dividends paid on the capital stock of any Subsidiary of the CodeCompany.
Appears in 1 contract
Benefit Plans. (a) Set forth in Section 3.13(a4.15(a) of the Company Disclosure Letter contains is a true and complete list of each material Company Plan. For purposes of this Agreement, “Company Plan” means each “employee benefit plan” (within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”)), stock purchase, stock option, severance, employment, change-in-control, fringe benefit, bonus, incentive, deferred compensation, employee loan or other employee benefit plan, agreement, program, policy or other arrangement, whether or not subject to ERISA Seller Benefit Plan (including any funding mechanism therefor now in effect or required in a designation of whether the future as a result of the transactions contemplated by this Agreement or otherwise), whether written or unwritten, in each case Seller Benefit Plan is (i) maintained by the a Sold Company or any of its Subsidiaries for current or former directors, employees or consultants of the Company Plan or (ii) under which (Aa Foreign Plan). No Sold Company Plan provides benefits to, or otherwise covers, any individual who is not an Employee, Former Employee, or the dependents or beneficiaries thereof. For any Seller Benefit Plan that is an individual employment agreement, Section 4.15(a) any employee, director or consultant or former employee, director or consultant of the Company Disclosure Letter identifies only the forms of the standard individual employment or any consulting agreements that are generally and currently in use in each country or jurisdiction and describes the applicable jurisdiction and category of its Subsidiaries has any present employee applicable thereto (a “Form of Agreement”), and specifically lists those individual employment or future right consulting agreements that vary materially from the Form of Agreement.
(b) Except to benefits the extent that disclosure would not be permitted under applicable Laws, including applicable privacy Law and the GDPR, with respect to each material Seller Benefit Plan (B) including each Assumed Plan), the Company has made available to the Buyer current, true and complete copies, as applicable, of each such plan’s governing document and any amendments thereto or any a written summary of its Subsidiaries all material terms if the plan has had or has any present or future liability or not been reduced to writing (it being understood that the obligation to contributefurnish an employment or consulting agreement shall be deemed to have been satisfied by providing the applicable Form of Agreement (unless such agreement varies materially from the Form of the Agreement, in which case the specific agreement has been provided) and that any individual employment agreements made available have been provided in a manner that is intended to be consistent with Section 4.14(a), with certain personal information redacted to delete certain personal information and to comply with applicable data privacy Laws). With respect to each material Company Assumed Plan, the Company has furnished or made available to Parent a current, accurate and complete copy thereof, including any amendments, and, to the extent applicable: Buyer (i) the most recent summary plan description, (ii) any related trust agreement or other funding instrumentvehicle and any current administrative or service contract or insurance policy, (iiiii) the most recent determinationannual report on IRS Form 5500 and the most recent actuarial report, opinion financial statements or advisory letter of the Internal Revenue Service (the “IRS”), if applicable, (iii) any summary plan description similar reports or other material written communications by the Company or its Subsidiaries to their employees concerning the extent of the benefits provided under a Company Plan statements and (iv) the most recent (A) Form 5500 and attached schedules, (B) audited financial statements, and (C) actuarial valuation reportsdetermination or opinion letter received from the IRS with respect to each such plan intended to qualify under Section 401 of the Code.
(bc) Except as disclosed Each Seller Benefit Plan has been established, maintained, operated, funded and administered in Section 3.13(b) compliance in all respects with its terms and all applicable Laws, except for such instances of the Company Disclosure Letter and except asnoncompliance that would not, individually or in the aggregate, has not had, and would not reasonably be expected to haveresult in a material Liability to any Sold Company or any Sold Subsidiary. Each Seller Benefit Plan that is required by applicable Law to be funded and/or book-reserved is funded and/or book reserved, as required, based upon reasonable actuarial assumptions. Other than routine claims for benefits, there are no suits, Claims, proceedings, Actions, governmental audits or investigations that are pending or threatened against or involving any Seller Benefit Plan or asserting any rights to or claims for benefits under any Seller Benefit Plan, except as would not, individually or in the aggregate, reasonably be expected to result in a material Liability to any Sold Company or any Sold Subsidiary. None of the Sold Companies or any of the Sold Subsidiaries has incurred (whether or not assessed), or is reasonably expected to incur or to be subject to, any Tax or other material penalty under Section 4980B, 4980D or 4980H of the Code or with respect to the reporting requirements under Sections 6055 and 6056 of the Code, as applicable.
(d) The IRS has issued a current favorable determination letter or, for a prototype plan, a Material Adverse Effect on the Companycurrent opinion letter, with respect to the Company Plans:
(1) each Company Seller Benefit Plan has been established and administered in accordance with its terms and in compliance with the applicable provisions of ERISA, the Code and all other applicable Laws, and in the six years preceding the date hereof no reportable event, as defined in Section 4043 of ERISA, no prohibited transaction, as described in Section 406 of ERISA or Section 4975 of the Code, or failure that is intended to satisfy the minimum funding standards, be qualified within the meaning of Section 302 of ERISA and 412 of the Code, has occurred with respect to any Company Plan, and all contributions required to be made under the terms of any Company Plan have been timely made;
(2) each Company Plan intended to be qualified under Section 401(a) of the Code (A) or, if no such determination has received a favorable determinationbeen made, advisory and/or opinion letter, as applicable, either an application for such determination is pending with the IRS or the time within which such determination may be sought from the IRS that it is so qualifiedhas not yet expired, (B) the trust maintained thereunder has been determined to be exempt from taxation under Section 501(a) of the Code and (C) to the Company’s knowledge, nothing has occurred since the date of such letter that could would reasonably be expected to cause affect the loss of such qualified status of such Company Seller Benefit Plan;. Each Foreign Plan required to be registered or intended to meet certain regulatory or requirements for favorable tax treatment has been timely and properly registered and has been maintained in good standing with the applicable regulatory authorities and requirements.
(3e) there is no Action (including any investigation, audit or other administrative proceeding) by None of the Department of LaborSold Companies, the Pension Benefit Guaranty CorporationSold Subsidiaries, the IRS Sellers, or any other Governmental Entity or by any plan participant or beneficiary pendingERISA Affiliate sponsors, maintains, contributes to, or to the knowledge of the Company, threatened, relating to the Company Plans, has any fiduciaries thereof to which the Company could have an indemnification obligation Liability (contingent or otherwise) with respect to their duties to the Company Plans or the assets (i) any “multiemployer plan,” as that term is defined in Section 3(37) of ERISA; (ii) any of the trusts under any of the Company Plans (other than routine claims for benefits) nor, to the knowledge of the Company, are there facts or circumstances “employee benefit plan” that exist that could reasonably be expect to give rise to any such Actions;
(4) no Company Plan is or, within the preceding six years, has been subject to Title IV of ERISA or subject to Section 412 or 430 of the Code and neither the Company nor Code; or (iii) any Person plan, program or arrangement that is a member of a “controlled group of corporations” withprovides for post-employment or post-retirement medical, health or is life insurance benefits, except as required by applicable Law or to avoid excise tax under “common control” with, or is a member Section 4980B of the same “affiliated service group” with the CompanyCode, in each case, as defined in Sections 414(b), (c), (m) or (o) for which the covered Person pays the full cost of the Code, maintains or contributes to (or has in the past six years maintained or contributed to) a multiemployer plan as defined in Section 3(37) of ERISA or a Title IV Plan;coverage.
(5f) the Company and its Subsidiaries are not subject to any material liability, including additional contributions, fine, penalties or loss of Tax Deductions as a result of the administration or operation of any Company Plan that is a “group health plan” (as such term is defined in Section 5000(b)(1) of the Code);
(6) no Company Plan provides welfare benefits, including death or medical benefits (whether or not insured) beyond retirement or termination of service, other than coverage mandated solely by applicable Law;
(7) none of the Company Plans provides for payment of an amount or provision of a benefit, the increase of a payment or benefit, the payment of a contingent amount or provision of a contingent benefit, or the acceleration of the payment, funding or vesting of an amount or benefit determined or occasioned, in whole or in part, by reason of Neither the execution and delivery of this Agreement or Agreement, nor the consummation of the transactions contemplated hereby whether (either alone or together in conjunction with any other event; and
), will cause any (8) no amounts i) compensatory payments, for which the Buyer, the Sold Companies or the Sold Subsidiaries would have any Liability, to become due or payable to any current or former consultant, contractor, Employee or Former Employee, (ii) acceleration, vesting, cancellation of indebtedness or increase in any compensation or benefits, for which the Buyer, the Sold Companies or the Sold Subsidiaries would have any Liability, to any current or former consultant, contractor, Employee or Former Employee, (iii) forfeiture of equity-based compensation under the any Seller Benefit Plan by any Employee or Former Employee, or (iv) Sold Company Plans will fail or Sold Subsidiary to be deductible for federal income tax purposes by virtue required to transfer or set aside any assets to fund any benefits under any Assumed Plan, or limit or restrict in any respect the right of the Buyer, any Sold Company or any Sold Subsidiary to amend, terminate or transfer the assets of any Assumed Plan. Neither the execution and delivery of this Agreement, nor the consummation of the transactions contemplated herein, will constitute a “change in ownership or control” or “change in effective control” of a corporation within the meaning of Section 280G of the Code Code. No current or former consultant, contractor, Employee or Former Employee is entitled to receive any additional payment (including any tax gross-up or other payment) for which the Buyer, any Sold Company or any Sold Subsidiary would have any Liability as a result of the occurrence imposition of the transactions contemplated excise taxes required by this Agreement, either alone Section 4999 of the Code or in combination with another eventany taxes required by Section 409A of the Code.
(c) The Company and its Subsidiaries have not entered into any employment or employment-related agreements (including change in control agreements and offer letters) to which a named individual is a party, other than those set forth on Section 3.13(a) of the Company Disclosure Letter.
(dg) Each Company Assumed Plan that is a “nonqualified deferred compensation plan” within the meaning of (as defined in Section 409A 409A(d)(1) of the Code and related Treasury Department guidance has (iCode) been operated between January 1, 2005 and December 31, 2008, in good faith compliance with Section 409A of the Code and Notice 2005-01 and (ii) since January 1, 2009 (or such later date permitted under applicable guidance), been operated in compliance, and is in documentary compliancecompliance with, and has been administered in all material respectscompliance with, with the requirements of Section 409A of the Code.
(e) Neither the Company nor any Subsidiary has a binding commitment to create any additional material Company Plan, or any plan, agreement or arrangement that would be a material Company Plan if adopted, or to modify or terminate any existing material Company Plan, except as required by applicable Law.
(f) The ESOP is an “employee stock ownership plan” within the meaning of Section 4975(e)(7) of the Code. Neither the Company nor the ESOP has, within the three year period immediately preceding the date of this Agreement, received any inquiry or notice from the IRS or any other governmental agency the effect of which is to question the qualification or status of the ESOP or any transaction entered into by the ESOP or the Company (with respect to the ESOP). The ESOP and the Company have filed all reports, returns or other documents in respect of the ESOP which are required to be filed pursuant to the applicable provisions of the Code and ERISA and the regulations thereunder. All loans entered into by the ESOP (the “ESOP Loans”) constitute “exempt loans” under Treasury Regulation Section 54.4975-7(b)(1)(iii). The securities held by the ESOP constitute “employer securities” under ERISA Section 407(d)(1) and Section 409(l) of the Code and “qualifying employer securities” under ERISA Section 407(d)(5) and Section 4975(e)(8) of the Code.
Appears in 1 contract
Benefit Plans. (aSchedule 5.19(a) Section 3.13(a) of the Company Disclosure Letter contains a true and complete list of each material Company Benefit Plan. For purposes The Company has separately identified in Schedule 5.19(a) each Benefit Plan that contains a change in control provision. No Benefit Plan is maintained, sponsored, contributed to, or required to be contributed to by any Target Company for the benefit of this Agreementemployees outside of the United States; and no Benefit Plan is maintained through a human resources and benefits outsourcing entity, professional employer organization, or other similar vendor or provider. Neither any Target Company nor any current or former ERISA Affiliate of such Target Company has ever made or had an obligation to make any contributions to any multi-employer plan (as defined in ERISA Section 3(37) or 4001(a)(3)) or to any “Company Plan” means each “employee benefit pension plan” (within the meaning of as defined in Section 3(33(2) of ERISA) subject to the Employee Retirement Income Security Act minimum funding standards of 1974ERISA or Title IV of ERISA. With respect to each Benefit Plan, as amended the Company has made available to the Buyer accurate, current and complete copies of each of the following: (“ERISA”))i) where the Benefit Plan has been reduced to writing, stock purchasethe plan document together with all amendments; (ii) where the Benefit Plan has not been reduced to writing, stock optiona written summary of all material plan terms; (iii) where applicable, severance, employment, change-in-control, fringe benefit, bonus, incentive, deferred compensation, employee loan copies of any trust agreements or other employee benefit planfunding arrangements, agreementcustodial agreements, programinsurance policies and contracts, policy administration agreements and similar agreements, and investment management or other arrangementinvestment advisory agreements, whether or not subject to ERISA (including any funding mechanism therefor now in effect or required in the future as a result of the transactions contemplated by this Agreement or otherwise), whether written or unwritten, in each case ; (iiv) maintained by the Company or any copies of its Subsidiaries for current or former directors, employees or consultants of the Company or (ii) under which (A) any employee, director or consultant or former employee, director or consultant of the Company or any of its Subsidiaries has any present or future right to benefits and (B) the Company or any of its Subsidiaries has had or has any present or future liability or obligation to contribute. With respect to each material Company Plan, the Company has furnished or made available to Parent a current, accurate and complete copy thereof, including any amendments, and, to the extent applicable: (i) any related trust agreement or other funding instrument, (ii) the most recent determination, opinion or advisory letter of the Internal Revenue Service (the “IRS”), if applicable, (iii) any summary plan description or descriptions, summaries of material modifications, summaries of benefits and coverage, COBRA communications, employee handbooks and any other material written communications by the Company (or its Subsidiaries a description of any oral communications) relating to their employees concerning the extent of the benefits provided under a Company Plan and any Benefit Plan; (ivv) the most recent (A) Form 5500 and attached schedules, (B) audited financial statements, and (C) actuarial valuation reports.
(b) Except as disclosed in Section 3.13(b) of the Company Disclosure Letter and except as, individually or in the aggregate, has not had, and would not reasonably be expected to have, a Material Adverse Effect on the Company, with respect to the Company Plans:
(1) each Company Plan has been established and administered in accordance with its terms and in compliance with the applicable provisions of ERISA, the Code and all other applicable Laws, and in the six years preceding the date hereof no reportable event, as defined in Section 4043 of ERISA, no prohibited transaction, as described in Section 406 of ERISA or Section 4975 of the Code, or failure to satisfy the minimum funding standards, within the meaning of Section 302 of ERISA and 412 of the Code, has occurred with respect to any Company Plan, and all contributions required to be made under the terms case of any Company Benefit Plan have been timely made;
(2) each Company Plan that is intended to be qualified under Section 401(a) of the Code (A) has received Code, a favorable copy of the most recent determination, opinion or advisory and/or opinion letter, as applicable, letter from the IRS that it is so qualified, (B) the trust maintained thereunder has been determined to be exempt from taxation under Section 501(a) of the Code Internal Revenue Service and (C) to the Company’s knowledge, nothing has occurred since the date of such letter that could reasonably be expected to cause the loss of such qualified status of such Company Plan;
(3) there is no Action (including any investigation, audit or other administrative proceeding) by the Department of Labor, the Pension Benefit Guaranty Corporation, the IRS or any other Governmental Entity or by any plan participant or beneficiary pending, or to the knowledge of the Company, threatened, relating to the Company Plans, any fiduciaries thereof to which the Company could have an indemnification obligation legal opinions issued thereafter with respect to their duties to such Benefit Plan’s continued qualification; (vi) in the Company Plans or the assets case of any Benefit Plan for which a Form 5500 must be filed, a copy of the trusts under any of the Company Plans three most recently filed Forms 5500, with all corresponding schedules and financial statements attached; (other than routine claims for benefitsvii) norif applicable, to the knowledge of the Company, are there facts or circumstances that exist that could reasonably be expect to give rise actuarial valuations and reports related to any such Actions;
(4) no Company Plan is or, within the preceding six years, has been subject to Title IV of ERISA or subject to Section 412 of the Code and neither the Company nor any Person that is a member of a “controlled group of corporations” with, or is under “common control” with, or is a member of the same “affiliated service group” with the Company, in each case, as defined in Sections 414(b), (c), (m) or (o) of the Code, maintains or contributes to (or has in the past six years maintained or contributed to) a multiemployer plan as defined in Section 3(37) of ERISA or a Title IV Plan;
(5) the Company and its Subsidiaries are not subject to any material liability, including additional contributions, fine, penalties or loss of Tax Deductions as a result of the administration or operation of any Company Plan that is a “group health plan” (as such term is defined in Section 5000(b)(1) of the Code);
(6) no Company Plan provides welfare benefits, including death or medical benefits (whether or not insured) beyond retirement or termination of service, other than coverage mandated solely by applicable Law;
(7) none of the Company Benefit Plans provides for payment of an amount or provision of a benefit, the increase of a payment or benefit, the payment of a contingent amount or provision of a contingent benefit, or the acceleration of the payment, funding or vesting of an amount or benefit determined or occasioned, in whole or in part, by reason of the execution of this Agreement or the consummation of the transactions contemplated hereby whether alone or together with any other event; and
(8) no amounts payable under the Company Plans will fail to be deductible for federal income tax purposes by virtue of Section 280G of the Code as a result of the occurrence of the transactions contemplated by this Agreement, either alone or in combination with another event.
(c) The Company and its Subsidiaries have not entered into any employment or employment-related agreements (including change in control agreements and offer letters) to which a named individual is a party, other than those set forth on Section 3.13(a) of the Company Disclosure Letter.
(d) Each Company Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A of the Code and related Treasury Department guidance has (i) been operated between January 1, 2005 and December 31, 2008, in good faith compliance with Section 409A of the Code and Notice 2005-01 and (ii) since January 1, 2009 (or such later date permitted under applicable guidance), been operated in compliance, and is in documentary compliance, in all material respects, with the requirements of Section 409A of the Code.
(e) Neither the Company nor any Subsidiary has a binding commitment to create any additional material Company Plan, or any plan, agreement or arrangement that would be a material Company Plan if adopted, or to modify or terminate any existing material Company Plan, except as required by applicable Law.
(f) The ESOP is an “employee stock ownership plan” within the meaning of Section 4975(e)(7) of the Code. Neither the Company nor the ESOP has, within the three year period immediately preceding the date of this Agreement, received any inquiry or notice from the IRS or any other governmental agency the effect of which is to question the qualification or status of the ESOP or any transaction entered into by the ESOP or the Company (with respect to the ESOP). The ESOP three (3) most recently completed plan years; (viii) the most recent nondiscrimination tests performed under the Code; and the Company have filed all reports(ix) copies of material notices, returns letters or other documents in respect correspondence from the Internal Revenue Service, Department of the ESOP which are required to be filed pursuant Labor or other Governmental Authority relating to the applicable provisions of the Code and ERISA and the regulations thereunder. All loans entered into by the ESOP (the “ESOP Loans”) constitute “exempt loans” under Treasury Regulation Section 54.4975-7(b)(1)(iii). The securities held by the ESOP constitute “employer securities” under ERISA Section 407(d)(1) and Section 409(l) of the Code and “qualifying employer securities” under ERISA Section 407(d)(5) and Section 4975(e)(8) of the CodeBenefit Plan.
Appears in 1 contract
Sources: Stock Purchase Agreement (First Financial Bancorp /Oh/)
Benefit Plans. (a) Section 3.13(a5.14(a) of the Company Disclosure Letter contains Schedule sets forth a true and complete list of each material Company Plan. For purposes Benefit Plan as of the date of this Agreement, “Company Plan” means each “employee benefit plan” (within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”)), stock purchase, stock option, severance, employment, change-in-control, fringe benefit, bonus, incentive, deferred compensation, employee loan or other employee benefit plan, agreement, program, policy or other arrangement, whether or not subject to ERISA (including any funding mechanism therefor now in effect or required in the future as a result of the transactions contemplated by this Agreement or otherwise), whether written or unwritten, in each case (i) maintained by the Company or any of its Subsidiaries for current or former directors, employees or consultants of the Company or (ii) under which (A) any employee, director or consultant or former employee, director or consultant of the Company or any of its Subsidiaries has any present or future right to benefits and (B) the Company or any of its Subsidiaries has had or has any present or future liability or obligation to contribute. With respect to each material such Company Benefit Plan, the Company has furnished or made available to Parent Purchaser a current, complete and accurate and complete copy thereof, including any amendments, andof, to the extent applicable: applicable (i) each such material Company Benefit Plan, including any related trust agreement material amendments thereto (or other funding instrumentto the extent such Company Benefit Plan is unwritten, an accurate written summary of the material terms thereof), (ii) the most recent determinationcurrently effective trust, opinion insurance Contract, policy, certificate of coverage, annuity or advisory letter of the Internal Revenue Service (the “IRS”), if applicableother funding instrument related thereto and all amendments thereto, (iii) any the current summary plan description or other and any summaries of material written communications by the Company or its Subsidiaries to their employees concerning the extent of the benefits provided under a Company Plan and modifications, (iv) the most recent determination or opinion letter from the IRS, (v) for the most recent three (3) plan years and to the extent applicable, (A) audited financial statements, (B) actuarial or other valuation reports prepared with respect thereto (where such statements or reports are required to be prepared under applicable Law or otherwise reasonably available) and (C) Form 5500 and attached schedules, (Bvi) audited financial statements, annual testing results (including nondiscrimination and (Ccoverage) actuarial valuation reports.
(b) Except as disclosed in Section 3.13(b) of results for the Company Disclosure Letter and except as, individually or in the aggregate, has not had, and would not reasonably be expected to have, a Material Adverse Effect on the Company, with respect to the Company Plans:
(1) each Company Plan has been established and administered in accordance with its terms and in compliance with the applicable provisions of ERISA, the Code and all other applicable Laws, and in the six years preceding the date hereof no reportable event, as defined in Section 4043 of ERISA, no prohibited transaction, as described in Section 406 of ERISA or Section 4975 of the Code, or failure to satisfy the minimum funding standards, within the meaning of Section 302 of ERISA and 412 of the Code, has occurred with respect to any Company Plan, and all contributions required to be made under the terms of any Company Plan have been timely made;
(2) each Company Plan intended to be qualified under Section 401(a) of the Code (A) has received a favorable determination, advisory and/or opinion letter, as applicable, from the IRS that it is so qualified, (B) the trust maintained thereunder has been determined to be exempt from taxation under Section 501(a) of the Code and (C) to the Company’s knowledge, nothing has occurred since the date of such letter that could reasonably be expected to cause the loss of such qualified status of such Company Plan;
three (3) there is no Action most recently completed plan years; and (including any investigation, audit vii) all non-routine correspondence received from or other administrative proceeding) by provided to the Department of Labor, the Pension Benefit Guaranty Corporation, the IRS Internal Revenue Service or any other Governmental Entity since June 1, 2019.
(b) None of the Company or by any of its Subsidiaries sponsors, contributes to, has an obligation to contribute to or has any Liability (including on account of an ERISA Affiliate or any past period) with respect to: (i) a plan participant subject to Title IV of ERISA, including any defined benefit plan (as defined in Section 3(35) of ERISA), (ii) a multiemployer plan (as defined in Section 3(37) or beneficiary pending4001(a)(3) of ERISA), (iii) a multiple employer plan subject to Section 4063 or 4064 of ERISA, or (iv) a plan subject to Section 302 of ERISA or Section 412 of the Code. Neither the Company nor its Subsidiaries sponsors, contributes to, has an obligation to contribute to or has any Liability with respect to a multiple employer welfare arrangement (as defined in Section 3(40)(A) of ERISA) or a voluntary employees’ beneficiary association under Section 501(c)(9) of the Code. None of the Company or its Subsidiaries has any material Liability (including on account of an ERISA Affiliate) as a result of a violation of COBRA. Neither the Company or its Subsidiaries has any material Liability under Section 502(i) or 502(l) of ERISA.
(c) Each Company Benefit Plan that is intended to be tax-qualified under Section 401(a) of the Code is so qualified and, no circumstances exist (i) which would reasonably be expected to result in loss of such qualification under Section 401(a) of the Code, or (ii) which would reasonably be expected to result in a penalty under the Internal Revenue Service Closing Agreement Program if discovered during an Internal Revenue Service audit or investigation. Each such Company Benefit Plan has received a favorable and currently effective determination letter from the Internal Revenue Service or is in the form of a pre-approved plan document that is the subject of a favorable opinion or advisory letter from the Internal Revenue Service on which it is entitled to rely.
(d) Each Company Benefit Plan has been in all material respects maintained and operated in conformity with the terms of such Company Benefit Plan and with all applicable Law, including the Code and ERISA and all filing and disclosure requirements imposed on the plan sponsor thereunder. There is no pending nor, to the knowledge Knowledge of the Company, has there been any threatened, action, claim or lawsuit relating to the any Company Plans, any fiduciaries thereof to which the Company could have an indemnification obligation with respect to their duties to the Company Plans or the assets of any of the trusts under any of the Company Plans Benefit Plan (other than routine claims for benefits) ). There is no audit, inquiry, investigation, or examination pending nor, to the knowledge Knowledge of the Company, are there facts has any been threatened by the IRS, the Department of Labor, the Pension Benefit Guaranty Corporation or circumstances that exist that could reasonably be expect to give rise any other Governmental Entity with respect to any such Actions;Company Benefit Plan.
(4e) no With respect to each Company Benefit Plan for which a separate fund of assets is oror is required to be maintained, within the preceding six years, full and timely payment and contribution has been subject made of all amounts due and required under the terms of each such Company Benefit Plan or applicable Law and all obligations for periods on or prior to Title IV of ERISA the Closing Date which relate to directors, officers, employees or subject to Section 412 of the Code and neither the Company nor any Person that is a member of a “controlled group of corporations” with, or is under “common control” with, or is a member of the same “affiliated service group” with the Company, in each case, as defined in Sections 414(b), (c), (m) or (o) of the Code, maintains or contributes to (or has in the past six years maintained or contributed to) a multiemployer plan as defined in Section 3(37) of ERISA or a Title IV Plan;
(5) the Company and its Subsidiaries are not subject to any material liability, including additional contributions, fine, penalties or loss of Tax Deductions as a result of the administration or operation of any Company Plan that is a “group health plan” (as such term is defined in Section 5000(b)(1) of the Code);
(6) no Company Plan provides welfare benefits, including death or medical benefits (whether or not insured) beyond retirement or termination of service, other than coverage mandated solely by applicable Law;
(7) none consultants of the Company Plans provides for payment or any of an amount its Subsidiaries and which are not yet due have either been made or provision of a benefithave been accrued on the Latest Balance Sheet. All premiums, the increase of a payment or benefit, the payment of a contingent amount or provision of a contingent benefit, or the acceleration of the payment, funding or vesting of an amount or benefit determined or occasioned, in whole fees and administrative expenses required to be paid under or in part, by reason of the execution of this Agreement or the consummation of the transactions contemplated hereby whether alone or together connection with any other event; and
(8) no amounts payable under the Company Benefit Plans will fail to be deductible for federal income tax purposes by virtue of Section 280G of the Code as a result of period on or before the occurrence of Closing Date, have been paid or have been accrued in full on the transactions contemplated by this Agreement, either alone or in combination with another eventLatest Balance Sheet.
(cf) The Company and its Subsidiaries have not entered into complied in all material respects with the applicable provisions of the Patient Protection and Affordable Care Act of 2010, as amended, and the Health Care and Education Reconciliation Act of 2010, as amended, in each case to the extent applicable, including the employer shared responsibility provisions relating to the offer of “affordable” health coverage that provides “minimum essential coverage” to “full-time” employees (as those terms are defined in Section 4980H of the Code and related regulations) and the applicable employer information reporting requirements under Code Section 6055 and Code Section 6056 and related regulations.
(g) There is no pending or threatened action, claim or lawsuit relating to any employment Company Benefit Plan (other than routine claims for benefits). There is no audit, inquiry, investigation, or employment-related agreements examination pending or threatened by the Internal Revenue Service, the Department of Labor, the Pension Benefit Guaranty Corporation or any other Governmental Entity with respect to any Company Benefit Plan.
(h) No fiduciary (within the meaning of Section 3(21) of ERISA) of any Company Benefit Plan subject to Part 4 of Subtitle B of Title I of ERISA has committed a breach of fiduciary duty with respect to that Company Benefit Plan that would subject the Company or its Subsidiaries to any material Liability (including change in control agreements liability on account of an indemnification obligation with respect to any Company Employee). Neither the Company nor its Subsidiaries have incurred any material excise Taxes under Chapter 43 of the Code with respect to any Company Benefit Plan and offer lettersnothing has occurred with respect to any Company Benefit Plan that would reasonably be expected to subject Company nor its Subsidiaries to any such material excise Taxes.
(i) No Company Benefit Plan or the Company or any of its Subsidiaries provides, or has any obligation to which a named individual is a partyprovide, other than those set forth on Section 3.13(a) current or former employees of the Company Disclosure Letteror any of its Subsidiaries (or any beneficiaries thereof) welfare benefits (including medical or life insurance benefits) after such Person terminates employment with the Company or any of its Subsidiaries, except for the coverage continuation requirements of COBRA, continued coverage until the end of the month during which termination occurs or disability or death benefits relating to disabilities or deaths occurring prior to termination of employment. No Company Benefit Plan or the Company or any of its Subsidiaries provides, or has any obligation to provide welfare benefits to any Person who is not a current or former employee of the Company or any of its Subsidiaries, or a spouse, dependent or beneficiary thereof.
(dj) Each Company Benefit Plan that is constitutes a “nonqualified deferred compensation plan” plan within the meaning of Section 409A of the Code has been administered, operated and related Treasury Department guidance has (i) been operated between January 1, 2005 and December 31, 2008, in good faith compliance with Section 409A of the Code and Notice 2005-01 and (ii) since January 1, 2009 (or such later date permitted under applicable guidance), been operated in compliance, and is in documentary compliance, maintained in all material respects, with respects according to the requirements of Section 409A of the Code.
(e) Neither , and neither the Company nor any Subsidiary of its Subsidiaries is or has been required to withhold or pay any Taxes as a binding commitment result of a failure to create any additional material Company Plan, or any plan, agreement or arrangement that would be a material Company Plan if adopted, or to modify or terminate any existing material Company Plan, except as required by applicable Law.
(f) The ESOP is an “employee stock ownership plan” within the meaning of comply with Section 4975(e)(7) 409A of the Code. Neither the Company nor any of its Subsidiaries has any obligation to make a “gross-up” or similar payment in respect of any Taxes that may become payable under Section 409A of the ESOP hasCode.
(k) Except as set forth in Section 5.14(k) of the Company Disclosure Schedule or to the extent resulting solely from a Purchaser Payment, neither the execution and delivery of this Agreement or any Transaction Agreement nor the consummation of the transactions contemplated hereby or thereby will (either alone or in combination with another event) (i) entitle any current or former director, officer, employee or individual consultant to any payment (including severance pay or similar compensation), any cancellation of indebtedness, or any increase in compensation; (ii) result in the acceleration of payment, funding or vesting under any Company Benefit Plan; (iii) result in any increase in benefits payable under any Company Benefit Plan or (iv) result in a payment to a Company Employee in respect of their notice period. No amount paid or payable (whether in cash, in property, or in the form of benefits) in connection with the transactions contemplated hereby (either alone or in combination with another event) will be an “excess parachute payment” within the three year period immediately preceding meaning of Section 280G of the Code. Neither the Company nor any of its Subsidiaries has any obligation to make a “gross-up” or similar payment in respect of any Taxes that may become payable under Section 4999 of the Code.
(l) Neither the Company nor any of its Subsidiaries has any obligation to provide redundancy or severance pay greater than the statutory minimum to any employee located outside the United States, and neither the Company nor any of its Subsidiaries has a policy or practice of providing such redundancy or severance pay.
(m) With respect to each Company Benefit Plan maintained primarily for employees and former employees located outside the United States (each, an “International Plan”): (i) if intended to qualify for special Tax treatment, each International Plan is so qualified, (ii) if required to be registered with a Governmental Entity, is so registered, and (iii) the fair market value of the assets of each International Plan, the liability of each insurer for any International Plan funded through insurance, or the book reserve established for any such plan, together with any accrued contributions, is sufficient to procure or provide for the accrued benefit obligations, as of the date of this Agreement, received with respect to all current and former participants in such plan according to the actuarial assumptions and valuations most recently used to determine employer contributions to such plan. Neither the Company nor any inquiry of its Subsidiaries has been a party to, a sponsoring employer of, or notice from the IRS otherwise is under any liability with respect to any defined benefit pension scheme, any final salary scheme or any death, disability or retirement benefit calculated by reference to age, salary or length of service or any other governmental agency the effect of which is to question the qualification or status of the ESOP or any transaction entered into by the ESOP or the Company (with respect to the ESOP). The ESOP and the Company have filed all reports, returns or other documents in respect of the ESOP which are required to be filed pursuant to the applicable provisions of the Code and ERISA and the regulations thereunder. All loans entered into by the ESOP (the “ESOP Loans”) constitute “exempt loans” under Treasury Regulation Section 54.4975-7(b)(1)(iii). The securities held by the ESOP constitute “employer securities” under ERISA Section 407(d)(1) and Section 409(l) of the Code and “qualifying employer securities” under ERISA Section 407(d)(5) and Section 4975(e)(8) of the Codeitem.
Appears in 1 contract
Sources: Stock Purchase Agreement (Arthur J. Gallagher & Co.)
Benefit Plans. (a) Section 3.13(a) of the Company Disclosure Letter contains Schedule 4.30 sets forth a true and complete list of each the Benefit Plans.
(b) Current and complete copies of all written Benefit Plans or, where oral, written summaries of the material Company terms of them, have been provided or made available to the Purchaser together with current and complete copies of all documents relating to the Benefit Plans, including: all documents establishing, creating or amending any of the Benefit Plans; all trust agreements, funding agreements; insurance contracts, and the most recent financial statements and accounting statements and reports; all booklets, summaries, manuals and written communications of a general nature distributed or made available to any Employees or former employees concerning any Benefit Plans.
(c) Each Benefit Plan is, and has been, established, registered (where required), qualified, administered and invested, in compliance with (i) the terms thereof, and (ii) all Laws; and neither the Corporation nor any of the Subsidiaries has received, in the last six years, any notice from any Person questioning or challenging such compliance (other than in respect of any claim related solely to that Person).
(d) All obligations to or under the Benefit Plans (whether pursuant to their terms or any Laws) have been satisfied, and there are no outstanding defaults or violations under the Benefits Plans by the Corporation or any of the Subsidiaries nor do the Vendors, the Corporation or any of the Subsidiaries have any actual knowledge, without further enquiry or investigation, of any default or violation by any other party to any Benefit Plan.
(e) There have been no improvements, increases or changes to, or promised improvements, increases or changes to, the benefits provided under any Benefit Plan. For purposes None of the Benefit Plans provides for benefit increases or the acceleration of or an increase in funding obligations that are contingent upon or will be triggered by the entering into of this Agreement, “Company Plan” means each “employee benefit plan” (within Agreement or the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”)), stock purchase, stock option, severance, employment, change-in-control, fringe benefit, bonus, incentive, deferred compensation, employee loan or other employee benefit plan, agreement, program, policy or other arrangement, whether or not subject to ERISA (including any funding mechanism therefor now in effect or required in the future as a result completion of the transactions contemplated by this Agreement Agreement.
(f) All employer or otherwise)employee payments, whether written contributions or unwrittenpremiums required to be remitted, paid to or in respect of each case (i) maintained by Benefit Plan have been paid or remitted in a timely fashion in accordance with the Company terms of that Benefit Plan and all Laws, and no Taxes, penalties or fees are owing or exigible under any of its Subsidiaries for current or former directors, employees or consultants of the Company or (ii) under which (A) any employee, director or consultant or former employee, director or consultant of the Company or any of its Subsidiaries has any present or future right to benefits and (B) the Company or any of its Subsidiaries has had or has any present or future liability or obligation to contribute. With respect to each material Company Benefit Plan, the Company has furnished and there are no liabilities or made available to Parent a currentcontingent liabilities in respect of any Benefit Plans that have been discontinued.
(g) There is no proceeding, accurate and complete copy thereofaction, including any amendmentsinvestigation, andsuit or claim (other than routine claims for payment of benefits) pending or, to the extent applicable: (i) any related trust agreement or other funding instrument, (ii) the most recent determination, opinion or advisory letter knowledge of the Internal Revenue Service (Vendors, the “IRS”)Corporation and the Subsidiaries, if applicable, (iii) threatened involving any summary plan description or other material written communications by the Company Benefit Plan or its Subsidiaries to their employees concerning the extent of the benefits provided under a Company Plan and (iv) the most recent (A) Form 5500 and attached schedules, (B) audited financial statementsassets, and (C) actuarial valuation reports.
(b) Except as disclosed in Section 3.13(b) of the Company Disclosure Letter and except as, individually or in the aggregate, has not had, and would not reasonably be expected to have, a Material Adverse Effect on the Company, with respect to the Company Plans:
(1) each Company Plan has been established and administered in accordance with its terms and in compliance with the applicable provisions of ERISA, the Code and all other applicable Laws, and in the six years preceding the date hereof no reportable event, as defined in Section 4043 of ERISA, no prohibited transaction, as described in Section 406 of ERISA or Section 4975 of the Code, or failure to satisfy the minimum funding standards, within the meaning of Section 302 of ERISA and 412 of the Code, has occurred with respect to any Company Plan, and all contributions required to be made under the terms of any Company Plan have been timely made;
(2) each Company Plan intended to be qualified under Section 401(a) of the Code (A) has received a favorable determination, advisory and/or opinion letter, as applicable, from the IRS that it is so qualified, (B) the trust maintained thereunder has been determined to be exempt from taxation under Section 501(a) of the Code and (C) to the Company’s knowledge, nothing has occurred since the date of such letter that facts exist which could reasonably be expected to cause the loss of give rise to any such qualified status of such Company Plan;
(3) there is no Action (including any investigationproceeding, audit action, suit or other administrative proceeding) by the Department of Labor, the Pension Benefit Guaranty Corporation, the IRS or any other Governmental Entity or by any plan participant or beneficiary pending, or to the knowledge of the Company, threatened, relating to the Company Plans, any fiduciaries thereof to which the Company could have an indemnification obligation with respect to their duties to the Company Plans or the assets of any of the trusts under any of the Company Plans Claim (other than routine claims for benefits).
(h) nor, to No event has occurred respecting any registered Benefit Plan which would entitle any person (without the knowledge consent of the Company, are there facts Corporation or circumstances that exist that could reasonably be expect to give rise to any such Actions;
(4) no Company Plan is or, within the preceding six years, has been subject to Title IV of ERISA or subject to Section 412 of the Code and neither the Company nor Subsidiaries) to wind-up or terminate any Person that is a member of a “controlled group of corporations” with, or is under “common control” with, or is a member of the same “affiliated service group” with the Company, in each case, as defined in Sections 414(b), (c), (m) or (o) of the Code, maintains or contributes to (or has in the past six years maintained or contributed to) a multiemployer plan as defined in Section 3(37) of ERISA or a Title IV Benefit Plan;
(5) the Company and its Subsidiaries are not subject to any material liability, including additional contributions, fine, penalties or loss of Tax Deductions as a result of the administration or operation of any Company Plan that is a “group health plan” (as such term is defined in Section 5000(b)(1) of the Code);
(6) no Company Plan provides welfare benefits, including death or medical benefits (whether or not insured) beyond retirement or termination of service, other than coverage mandated solely by applicable Law;
(7) none of the Company Plans provides for payment of an amount or provision of a benefit, the increase of a payment or benefit, the payment of a contingent amount or provision of a contingent benefit, or the acceleration of the payment, funding or vesting of an amount or benefit determined or occasioned, in whole or in part, by reason or which could otherwise reasonably be expected to adversely affect the tax status of any such plan.
(i) Neither the Corporation nor any of the execution Subsidiaries has received, or applied for, any payment of this Agreement surplus or the consummation of the transactions contemplated hereby whether alone or together with any other event; and
(8) no amounts payable under the Company Plans will fail to be deductible for federal income tax purposes by virtue of Section 280G of the Code payments as a result of the occurrence demutalization of the transactions contemplated by this Agreement, either alone insurer of any Benefit Plan out of or in combination with another eventrespect of any Benefit Plan.
(cj) The Company and its Subsidiaries have not entered into Neither the Corporation nor any employment or employment-related agreements (including change in control agreements and offer letters) to which a named individual is a party, other than those set forth on Section 3.13(a) of the Company Disclosure LetterSubsidiaries has taken any contribution or premium holidays under any Benefit Plan and there have been no withdrawals or transfers of assets from any Benefit Plan.
(dk) Each Company All employee data necessary to administer each Benefit Plan that is a “nonqualified deferred compensation plan” within in the meaning of Section 409A possession of the Code Corporation or the Subsidiaries and related Treasury Department guidance has (i) been operated between January 1is complete, 2005 correct and December 31, 2008, in good faith compliance with Section 409A a form which is sufficient for the proper administration of the Code Benefit Plan in accordance with its terms and Notice 2005-01 and (ii) since January 1, 2009 (or such later date permitted under applicable guidance), been operated in compliance, and is in documentary compliance, in all material respects, with the requirements of Section 409A of the CodeLaws.
(el) Neither None of the Company nor any Subsidiary has a binding commitment Benefit Plans provide benefits beyond retirement or other termination of service to create any additional material Company Plan, Employees or any plan, agreement or arrangement that would be a material Company Plan if adopted, former employees or to modify the beneficiaries or terminate any existing material Company Plan, except as required by applicable Lawdependants of such employees.
(fm) The ESOP is an “employee stock ownership plan” within the meaning of Section 4975(e)(7) None of the Code. Neither Benefit Plans require or permit a retroactive increase in premiums or payments, or require additional payments or premiums on the Company nor the ESOP hastermination of any Benefit Plan or insurance contract in respect thereof, within the three year period immediately preceding the date of this Agreement, received any inquiry or notice from the IRS or any other governmental agency the effect of which is to question the qualification or status of the ESOP or any transaction entered into by the ESOP or the Company (with respect to the ESOP). The ESOP and the Company have filed level of insurance reserves, if any, under any insured Benefit Plan is reasonable and sufficient to provide for all reports, returns or other documents in respect of the ESOP which are required to be filed pursuant to the applicable provisions of the Code and ERISA and the regulations thereunder. All loans entered into by the ESOP (the “ESOP Loans”) constitute “exempt loans” under Treasury Regulation Section 54.4975-7(b)(1)(iii). The securities held by the ESOP constitute “employer securities” under ERISA Section 407(d)(1) and Section 409(l) of the Code and “qualifying employer securities” under ERISA Section 407(d)(5) and Section 4975(e)(8) of the Codeincurred but unreported claims.
Appears in 1 contract
Benefit Plans. (a) Section 3.13(a3.11(a) of the Company Disclosure Letter contains sets forth a true true, complete and complete list correct list, as of the date hereof, of each material Company Plan. For purposes of this Agreement, “Company Plan” means each “employee benefit plan” (within the meaning of Section section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”)), “multiemployer plans” (within the meaning of ERISA section 3(37)), and each stock purchase, equity or equity-based compensation, stock option, severance, employment, change-in-control, fringe benefit, bonus, incentive, deferred compensation, employee loan or compensation and all other employee benefit planplans, agreementagreements, programprograms, policy policies or other arrangementarrangements, whether or not subject to ERISA (including any funding mechanism therefor now in effect or required in the future as a result of the transactions contemplated by this Agreement or otherwise), whether written formal or unwritteninformal, in each case (i) maintained by the Company written, legally binding or not, under which any of its Subsidiaries for current employee or former directors, employees or consultants employee of the Company or (ii) under which (A) any employee, director or consultant or former employee, director or consultant of the Company or any of its Subsidiaries has any present or future right to benefits and (B) or the Company or any of its Subsidiaries has had or has any present or future liability or obligation to contributematerial liability. With respect to each material Company Plan, the Company has furnished or made available to Parent a current, accurate and complete copy thereof (or to the extent that no such copy exists, a written description thereof, including any amendments, ) and, to the extent applicable: (i) any related trust agreement or other funding instrument, (ii) the most recent determination, determination or opinion or advisory letter of from the Internal Revenue Service (the “IRS”), if applicable, (iii) any summary plan description or and other material equivalent written communications by the Company or its Subsidiaries to their employees concerning the extent of the benefits provided under a Company Plan and (iv) if applicable, for the two most recent years (A) the Form 5500 and attached schedules, (B) audited financial statements, and (C) actuarial valuation reports.
, (bD) Except as disclosed in Section 3.13(battorney’s response to an auditor’s request for information and (E) of all material correspondence regarding the Company Disclosure Letter and except as, individually or in the aggregate, has not had, and would not reasonably be expected to have, a Material Adverse Effect on the Company, with respect to the Company Plans:
(1) each Company Plan has been established and administered in accordance with its terms and in compliance with the applicable provisions of ERISA, the Code and all other applicable Laws, and in the six years preceding the date hereof no reportable event, as defined in Section 4043 of ERISA, no prohibited transaction, as described in Section 406 of ERISA or Section 4975 of the Code, or failure to satisfy the minimum funding standards, within the meaning of Section 302 of ERISA and 412 of the Code, has occurred with respect to any Company Plan, and all contributions required to be made under the terms of any Company Plan have been timely made;
(2) each Company Plan intended to be qualified under Section 401(a) of the Code (A) has received a favorable determination, advisory and/or opinion letter, as applicable, from the IRS that it is so qualified, (B) the trust maintained thereunder has been determined to be exempt from taxation under Section 501(a) of the Code and (C) to the Company’s knowledge, nothing has occurred since the date of such letter that could reasonably be expected to cause the loss of such qualified status of such Company Plan;
(3) there is no Action (including any investigation, audit or other administrative proceeding) by the Department of Labor, the Pension Benefit Guaranty Corporation, the IRS or any other Governmental Entity or by any plan participant or beneficiary pending, or to the knowledge of the Company, threatened, relating to the Company Plans, any fiduciaries thereof to which the Company could have an indemnification obligation with respect to their duties to the Company Plans or the assets of any of the trusts under any of the Company Plans (other than routine claims for benefits) nor, to the knowledge of the Company, are there facts or circumstances that exist that could reasonably be expect to give rise to any such Actions;
(4) no Company Plan is or, within the preceding six years, has been subject to Title IV of ERISA or subject to Section 412 of the Code and neither the Company nor any Person that is a member of a “controlled group of corporations” with, or is under “common control” with, or is a member of the same “affiliated service group” with the Company, in each case, as defined in Sections 414(b), (c), (m) or (o) of the Code, maintains or contributes to (or has in the past six years maintained or contributed to) a multiemployer plan as defined in Section 3(37) of ERISA or a Title IV Plan;
(5) the Company and its Subsidiaries are not subject to any material liability, including additional contributions, fine, penalties or loss of Tax Deductions as a result of the administration or operation of any Company Plan that is a “group health plan” (as such term is defined in Section 5000(b)(1) of the Code);
(6) no Company Plan provides welfare benefits, including death or medical benefits (whether or not insured) beyond retirement or termination of service, other than coverage mandated solely by applicable Law;
(7) none of the Company Plans provides for payment of an amount or provision of a benefit, the increase of a payment or benefit, the payment of a contingent amount or provision of a contingent benefit, or the acceleration of the payment, funding or vesting of an amount or benefit determined or occasioned, in whole or in part, by reason of the execution of this Agreement or the consummation of the transactions contemplated hereby whether alone or together with any other event; and
(8) no amounts payable under the Company Plans will fail to be deductible for federal income tax purposes by virtue of Section 280G of the Code as a result of the occurrence of the transactions contemplated by this Agreement, either alone or in combination with another eventGovernmental Entity.
(c) The Company and its Subsidiaries have not entered into any employment or employment-related agreements (including change in control agreements and offer letters) to which a named individual is a party, other than those set forth on Section 3.13(a) of the Company Disclosure Letter.
(d) Each Company Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A of the Code and related Treasury Department guidance has (i) been operated between January 1, 2005 and December 31, 2008, in good faith compliance with Section 409A of the Code and Notice 2005-01 and (ii) since January 1, 2009 (or such later date permitted under applicable guidance), been operated in compliance, and is in documentary compliance, in all material respects, with the requirements of Section 409A of the Code.
(e) Neither the Company nor any Subsidiary has a binding commitment to create any additional material Company Plan, or any plan, agreement or arrangement that would be a material Company Plan if adopted, or to modify or terminate any existing material Company Plan, except as required by applicable Law.
(f) The ESOP is an “employee stock ownership plan” within the meaning of Section 4975(e)(7) of the Code. Neither the Company nor the ESOP has, within the three year period immediately preceding the date of this Agreement, received any inquiry or notice from the IRS or any other governmental agency the effect of which is to question the qualification or status of the ESOP or any transaction entered into by the ESOP or the Company (with respect to the ESOP). The ESOP and the Company have filed all reports, returns or other documents in respect of the ESOP which are required to be filed pursuant to the applicable provisions of the Code and ERISA and the regulations thereunder. All loans entered into by the ESOP (the “ESOP Loans”) constitute “exempt loans” under Treasury Regulation Section 54.4975-7(b)(1)(iii). The securities held by the ESOP constitute “employer securities” under ERISA Section 407(d)(1) and Section 409(l) of the Code and “qualifying employer securities” under ERISA Section 407(d)(5) and Section 4975(e)(8) of the Code.
Appears in 1 contract
Sources: Merger Agreement (Infrastructure & Energy Alternatives, Inc.)
Benefit Plans. (a) Section 3.13(a) of the Company Disclosure Letter contains a true and complete list of each material Company Plan. For purposes of this Agreement, “Company Plan” means each “Each "employee -------------- pension benefit plan” " (within the meaning of as defined in Section 3(33(2) of the Employee Retirement Income Security Act of 1974, as amended (“"ERISA”")) (a "Pension Plan"), "employee welfare benefit plan" (as defined in Section 3(1) of ERISA) (a "Welfare Plan") and each other plan, arrangement or policy (written or oral) relating to stock purchaseoptions, stock optionpurchases, severance, employment, change-in-control, fringe benefit, bonus, incentivecompensation, deferred compensation, employee loan bonuses, severance, fringe benefits or other employee benefit plan, agreement, program, policy or other arrangement, whether or not subject to ERISA (including any funding mechanism therefor now in effect or required in the future as a result of the transactions contemplated by this Agreement or otherwise), whether written or unwrittenbenefits, in each case (i) maintained by the Company or any of its Subsidiaries for current contributed to, or former directorsrequired to be maintained or contributed to, employees or consultants of the Company or (ii) under which (A) any employee, director or consultant or former employee, director or consultant of the Company or any of its Subsidiaries has any present or future right to benefits and (B) the Company or any of its Subsidiaries has had or has any present or future liability or obligation to contribute. With respect to each material Company Plan, the Company has furnished or made available to Parent a current, accurate and complete copy thereof, including any amendments, and, to the extent applicable: (i) any related trust agreement or other funding instrument, (ii) the most recent determination, opinion or advisory letter of the Internal Revenue Service (the “IRS”), if applicable, (iii) any summary plan description or other material written communications by the Company or its Subsidiaries to their employees concerning subsidiaries for the extent benefit of any present or former employee, officer or director (each of the benefits provided under a Company Plan and (iv) the most recent (A) Form 5500 and attached schedules, (B) audited financial statements, and (C) actuarial valuation reports.
(b) Except as disclosed in Section 3.13(b) of the Company Disclosure Letter and except as, individually or in the aggregate, has not had, and would not reasonably be expected to haveforegoing, a Material Adverse Effect on the Company, with respect to the Company Plans:
(1"Benefit Plan") each Company Plan has been established and administered in all material respects in accordance with its terms terms. The Company and its subsidiaries and all the Benefit Plans are in compliance in all material respects with the applicable provisions of ERISA, the Internal Revenue Code and of 1986, as amended (the "Code"), all other applicable Laws, laws and in the six years preceding the date hereof no reportable event, as defined in Section 4043 of ERISA, no prohibited transaction, as described in Section 406 of ERISA or Section 4975 all applicable collective bargaining agreements.
(b) None of the Code, or failure to satisfy the minimum funding standards, within the meaning of Section 302 of ERISA and 412 of the Code, has occurred with respect to any Company Plan, and all contributions required to be made under the terms of any Company Plan have been timely made;
(2) each Company Plan intended to be qualified under Section 401(a) of the Code (A) has received a favorable determination, advisory and/or opinion letter, as applicable, from the IRS that it Pension Plans is so qualified, (B) the trust maintained thereunder has been determined to be exempt from taxation under Section 501(a) of the Code and (C) to the Company’s knowledge, nothing has occurred since the date of such letter that could reasonably be expected to cause the loss of such qualified status of such Company Plan;
(3) there is no Action (including any investigation, audit or other administrative proceeding) by the Department of Labor, the Pension Benefit Guaranty Corporation, the IRS or any other Governmental Entity or by any plan participant or beneficiary pending, or to the knowledge of the Company, threatened, relating to the Company Plans, any fiduciaries thereof to which the Company could have an indemnification obligation with respect to their duties to the Company Plans or the assets of any of the trusts under any of the Company Plans (other than routine claims for benefits) nor, to the knowledge of the Company, are there facts or circumstances that exist that could reasonably be expect to give rise to any such Actions;
(4) no Company Plan is or, within the preceding six years, has been subject to Title IV of ERISA or subject to Section 412 and none of the Code and neither the Company nor or any Person that is a member of a “controlled group of corporations” withother person or entity that, or is under “common control” with, or is a member of the same “affiliated service group” together with the Company, in each caseis treated as a single employer under Section 414 of the Code (each, as defined in Sections 414(b)including the Company, a "Commonly Controlled Entity") has incurred any liability to a Pension Plan, or to an employee pension benefit plan that is no longer maintained, contributed to or required to be contributed to by a Commonly Controlled Entity under Title IV of ERISA (c), (mother than for contributions not yet due) or to the Pension Benefit Guaranty Corporation (o) of the Code, maintains or contributes to (or has in the past six years maintained or contributed to) a multiemployer plan as defined in Section 3(37) of ERISA or a Title IV Plan;
(5) the Company and its Subsidiaries are not subject to any material liability, including additional contributions, fine, penalties or loss of Tax Deductions as a result of the administration or operation of any Company Plan that is a “group health plan” (as such term is defined in Section 5000(b)(1) of the Code);
(6) no Company Plan provides welfare benefits, including death or medical benefits (whether or not insured) beyond retirement or termination of service, other than coverage mandated solely by applicable Law;
(7) none of the Company Plans provides for payment of an amount or provision of a benefitpremiums not yet due), the increase of a payment or benefit, the payment of a contingent amount or provision of a contingent benefit, or the acceleration of the payment, funding or vesting of an amount or benefit determined or occasioned, in whole or in part, by reason of the execution of this Agreement or the consummation of the transactions contemplated hereby whether alone or together with any other event; and
(8) no amounts payable under the Company Plans will fail to be deductible for federal income tax purposes by virtue of Section 280G of the Code as a result of the occurrence of the transactions contemplated by this Agreement, either alone or in combination with another eventwhich liability has not been fully paid.
(c) The Company and its Subsidiaries have not entered into No Commonly Controlled Entity is required to contribute to any employment or employment-related agreements "multiemployer plan" (including change as defined in control agreements and offer letters) to which a named individual is a party, other than those set forth on Section 3.13(a4001(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 Company Disclosure Lettermeaning of Section 4201 of ERISA) that has not been fully paid.
(d) Each Company Benefit Plan that is a “nonqualified deferred compensation plan” within Welfare Plan may be amended or terminated at any time after the meaning of Section 409A of the Code and related Treasury Department guidance has (i) been operated between January 1, 2005 and December 31, 2008, in good faith compliance with Section 409A of the Code and Notice 2005-01 and (ii) since January 1, 2009 (or such later date permitted under applicable guidance), been operated in compliance, and is in documentary compliance, in all Effective Time without material respects, with the requirements of Section 409A of the Code.
(e) Neither liability to the Company nor any Subsidiary has a binding commitment to create any additional material Company Plan, or any plan, agreement or arrangement that would be a material Company Plan if adopted, or to modify or terminate any existing material Company Plan, except as required by applicable Lawits subsidiaries.
(f) The ESOP is an “employee stock ownership plan” within the meaning of Section 4975(e)(7) of the Code. Neither the Company nor the ESOP has, within the three year period immediately preceding the date of this Agreement, received any inquiry or notice from the IRS or any other governmental agency the effect of which is to question the qualification or status of the ESOP or any transaction entered into by the ESOP or the Company (with respect to the ESOP). The ESOP and the Company have filed all reports, returns or other documents in respect of the ESOP which are required to be filed pursuant to the applicable provisions of the Code and ERISA and the regulations thereunder. All loans entered into by the ESOP (the “ESOP Loans”) constitute “exempt loans” under Treasury Regulation Section 54.4975-7(b)(1)(iii). The securities held by the ESOP constitute “employer securities” under ERISA Section 407(d)(1) and Section 409(l) of the Code and “qualifying employer securities” under ERISA Section 407(d)(5) and Section 4975(e)(8) of the Code.
Appears in 1 contract
Sources: Merger Agreement (International Business Machines Corp)
Benefit Plans. (aA) Section 3.13(a) of the Company Disclosure Letter contains a true and complete list of each material Company Plan. For purposes of this Agreement, “Company Plan” means each “SCHEDULE 2.19 hereto sets forth all employee benefit plan” plans and arrangements (within the meaning of including, but not limited to, plans described in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“"ERISA”")), stock purchase, stock option, severance, employment, change-in-control, fringe benefit, bonus, incentive, deferred compensation, employee loan or other employee benefit plan, agreement, program, policy or other arrangement, whether or not subject to ERISA (including any funding mechanism therefor now in effect or required in the future as a result of the transactions contemplated by this Agreement or otherwise), whether written or unwritten, in each case (i) maintained by the Company or any Subsidiary for the benefit of its Subsidiaries for their current or former directorsemployees, employees or consultants of the Company or (ii) under with respect to which (A) any employee, director or consultant or former employee, director or consultant of the Company or any of its Subsidiaries Subsidiary has any present or future right to benefits and liability (B) the Company or any of its Subsidiaries has had or has any present or future liability or obligation to contribute. With respect to each material Company Planincluding, the Company has furnished or made available to Parent a currentbut not limited to, accurate and complete copy thereof, including any amendments, and, to the extent applicable: (i) any related trust agreement or other funding instrument, (ii) the most recent determination, opinion or advisory letter of the Internal Revenue Service (the “IRS”), if applicable, (iii) any summary plan description or other material written communications by the Company or its Subsidiaries to their employees concerning the extent of the benefits provided under a Company Plan and (iv) the most recent (A) Form 5500 and attached schedules, (B) audited financial statements, and (C) actuarial valuation reports.
(b) Except as disclosed in Section 3.13(b) of the Company Disclosure Letter and except as, individually or in the aggregate, has not had, and would not reasonably be expected to have, a Material Adverse Effect on the Company, with respect to the Company Plans:
(1) each Company Plan has been established and administered in accordance with its terms and in compliance with the applicable provisions of ERISA, the Code and all other applicable Laws, and in the six years preceding the date hereof no reportable event, as defined in Section 4043 of ERISA, no prohibited transaction, as described in Section 406 of ERISA or Section 4975 of the Code, or failure to satisfy the minimum funding standards, within the meaning of Section 302 of ERISA and 412 of the Code, has occurred with respect to any Company Plan, and all contributions required to be made under the terms of any Company Plan have been timely made;
(2) each Company Plan intended to be qualified liabilities arising from affiliation under Section 401(a) of the Code (A) has received a favorable determination, advisory and/or opinion letter, as applicable, from the IRS that it is so qualified, (B) the trust maintained thereunder has been determined to be exempt from taxation under Section 501(a) of the Code and (C) to the Company’s knowledge, nothing has occurred since the date of such letter that could reasonably be expected to cause the loss of such qualified status of such Company Plan;
(3) there is no Action (including any investigation, audit or other administrative proceeding) by the Department of Labor, the Pension Benefit Guaranty Corporation, the IRS or any other Governmental Entity or by any plan participant or beneficiary pending, or to the knowledge of the Company, threatened, relating to the Company Plans, any fiduciaries thereof to which the Company could have an indemnification obligation with respect to their duties to the Company Plans or the assets of any of the trusts under any of the Company Plans (other than routine claims for benefits) nor, to the knowledge of the Company, are there facts or circumstances that exist that could reasonably be expect to give rise to any such Actions;
(4) no Company Plan is or, within the preceding six years, has been subject to Title IV of ERISA or subject to Section 412 of the Code and neither the Company nor any Person that is a member of a “controlled group of corporations” with, or is under “common control” with, or is a member of the same “affiliated service group” with the Company, in each case, as defined in Sections 414(b), (c), (m) or (o) of the Internal Revenue Code of 1986, as amended (the "CODE"), or Section 4001 of ERISA) (the "BENEFIT PLANS").
(B) With respect to each Benefit Plan, the Company has made available to the Buyer true and complete copies of: (i) any and all plan documents and agreements; (ii) any and all outstanding summary plan descriptions and material modifications thereto; (iii) the two most recent annual reports, if applicable; (iv) the two most recent annual and periodic accounting of plan assets, if applicable; and (v) the most recent determination letter received from the Internal Revenue Service (the "SERVICE"), if applicable. Since the date of the foregoing Benefit Plan documents, there has not been any material change in the assets or liabilities of any of the Benefit Plans or any change in their terms and operations which could reasonably be expected to affect or alter the tax status or materially affect the cost of maintaining such Benefit Plan. The Company and the Subsidiaries do not have any other ERISA Affiliates. For these purposes, "ERISA AFFILIATE" means any entity which is under common control with the Company or any Subsidiary within the meaning of Section 414 of the Code;
(C) Except as set forth on SCHEDULE 2.19, with respect to each Benefit Plan: (i) such plan has been administered in accordance with its terms and all applicable laws in all material respects; (ii) no breach of fiduciary duty has occurred with respect to which any fiduciary of any Benefit Plan, including, without limitation the Company, any Subsidiary (or any officer, director or employee thereof) or any Benefit Plan, reasonably could be expected to be liable in any material respect; (iii) no material disputes are pending or, to the knowledge of the Company, threatened; and (iv) no "prohibited transaction" (within the meaning of either Section 4975(c) of the Code or Section 406 of ERISA) has occurred with respect to which the Company, any Subsidiary or any Benefit Plan reasonably could be expected to be liable for any tax, penalty or other liability.
(D) Except as set forth on SCHEDULE 2.19, the consummation of the transactions contemplated by this Agreement will not (i) accelerate the time of payment or vesting under any Benefit Plan or (ii) increase the amount of compensation or benefits due to any individual under any Benefit Plan.
(E) None of the Benefit Plans is, and none of the Company or any Subsidiary has ever maintained, had an obligation to contribute to, or incurred any other obligation with respect to (i) a plan subject to Title IV of ERISA, Section 412 of the Code, maintains or contributes to Title I, Subtitle B, Part 3 of ERISA, (or has in the past six years maintained or contributed toii) a "multiemployer plan plan," as defined in Section 3(37) of ERISA, (iii) a "multiple employer plan," as defined in ERISA or the Code or (iv) except as set forth on SCHEDULE 2.19, a Title IV Plan;
(5) funded welfare benefit plan, as defined in Section 419 of the Company and its Subsidiaries Code. Except as set forth on SCHEDULE 2.19, there are not subject no trusts or similar funding vehicles with respect to any material liability, including additional contributions, fine, penalties or loss of Tax Deductions as a result of the administration or operation of any Company Benefit Plan that is a “group health plan” welfare plan (as such term is defined in Section 5000(b)(1) of the Code);
(6) no Company Plan provides welfare benefits, including death or medical benefits (whether or not insured) beyond retirement or termination of service, other than coverage mandated solely by applicable Law;
(7) none of the Company Plans provides for payment of an amount or provision of a benefit, the increase of a payment or benefit, the payment of a contingent amount or provision of a contingent benefit, or the acceleration of the payment, funding or vesting of an amount or benefit determined or occasioned, in whole or in part, by reason of the execution of this Agreement or the consummation of the transactions contemplated hereby whether alone or together with any other event; and
(8) no amounts payable under the Company Plans will fail to be deductible for federal income tax purposes by virtue of Section 280G of the Code as a result of the occurrence of the transactions contemplated by this Agreement, either alone or in combination with another event.
(c) The Company and its Subsidiaries have not entered into any employment or employment-related agreements (including change in control agreements and offer letters) to which a named individual is a party, other than those set forth on Section 3.13(a) of the Company Disclosure Letter.
(d) Each Company Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A 3(1) of the Code and related Treasury Department guidance has (i) been operated between January 1, 2005 and December 31, 2008, in good faith compliance with Section 409A of the Code and Notice 2005-01 and (ii) since January 1, 2009 (or such later date permitted under applicable guidanceERISA), been operated in compliance, and is in documentary compliance, in all material respects, with the requirements of Section 409A of the Code.
(eF) Neither Except as set forth on SCHEDULE 2.19, none of the Company nor any Subsidiary has any obligation to provide any deferred compensation, pension or non- pension benefits to any individual, including, without limitation, any retired or other former employee or director (or any beneficiary thereof), except for health benefits as specifically required by the continuation coverage provisions of federal or state law as applied to any Benefit Plan that is a binding commitment to create group health plan (as defined in Section 601 et seq. of ERISA) or pension benefits payable from any additional material Company Benefit Plan, or any plan, agreement or arrangement that would which are intended to be a material Company Plan if adopted, or to modify or terminate any existing material Company Plan, except as required by applicable Law.
(f) The ESOP is an “employee stock ownership plan” qualified within the meaning of Section 4975(e)(7401(a) of the Code. Neither the Company nor the ESOP hasAll plans, within the three year period immediately preceding the date of this Agreement, received any inquiry agreements and other arrangements maintained or notice from the IRS or any other governmental agency the effect of which is to question the qualification or status of the ESOP or any transaction entered into by the ESOP Company or the Company (with respect any Subsidiary for any service provider that are "deferred compensation" subject to the ESOP). The ESOP and the Company have filed all reports, returns or other documents in respect of the ESOP which are required to be filed pursuant to the applicable provisions Section 409A of the Code comply with the requirements of that Section or can be timely amended to comply with that Section.
(G) The Company and ERISA and each Subsidiary has classified all individuals who perform services for it correctly, in accordance with the regulations thereunder. All loans entered into by the ESOP (the “ESOP Loans”) constitute “exempt loans” under Treasury Regulation Section 54.4975-7(b)(1)(iii). The securities held by the ESOP constitute “employer securities” under ERISA Section 407(d)(1) and Section 409(l) terms of each Benefit Plan, ERISA, the Code and “qualifying employer securities” under ERISA Section 407(d)(5) and Section 4975(e)(8) of all other applicable laws, as common law employees, independent contractors or leased employees, except where the Codefailure to do so would not reasonably be expected to result, individually or in the aggregate, in a material liability for the Company or any Subsidiary.
Appears in 1 contract
Benefit Plans. (a) Section 3.13(aSchedule 3.12(a) of the Company Disclosure Letter contains sets forth a true and complete correct list of each material Company Plan. For purposes of this Agreement, “Company Plan” means each “all (A) employee benefit plan” (plans within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”)), stock purchase, stock option, severance, employment, change-in-control, fringe benefit, bonus, incentive, deferred compensation, employee loan or other employee benefit plan, agreement, program, policy or other arrangement, whether or not subject to ERISA ERISA; and (including any funding mechanism therefor now B) stock option plans, stock purchase plans, bonus or incentive award plans, severance pay plans, programs or arrangements, deferred compensation arrangements or agreements, or material employment agreements, executive compensation plans, programs, agreements or arrangements, change in effect control plans, programs or required arrangements, supplemental income arrangements, vacation plans, and all other employee benefit plans, agreements, and arrangements, not described in the future as a result of the transactions contemplated by this Agreement or otherwise), whether written or unwritten, (A) above; in each case (i) maintained whether written, unwritten or otherwise, funded or unfunded, that is maintained, contributed to, or required to be contributed to, by the Company or any of its Subsidiaries for current or former directorsSubsidiaries, employees or consultants of the Company or (ii) under which any current employee (Aof any dependent thereof) any employeeis eligible to receive benefit or otherwise participate, director or consultant or former employee, director or consultant of and/or with respect to which the Company or any of its Subsidiaries has any present or future right to benefits and (B) the Company or any of its Subsidiaries has had or has any present or future liability or obligation to contribute. With respect to each material Company Plan, the Company has furnished or made available to Parent a current, accurate and complete copy thereof, including any amendments, and, to the extent applicable: (i) any related trust agreement or other funding instrument, (ii) the most recent determination, opinion or advisory letter of the Internal Revenue Service (the “IRS”), if applicable, (iii) any summary plan description or other material written communications by the Company or its Subsidiaries to their employees concerning the extent of the benefits provided under a Company Plan and (iv) the most recent (A) Form 5500 and attached schedules, (B) audited financial statements, and (C) actuarial valuation reports.
(b) Except as disclosed in Section 3.13(b) of the Company Disclosure Letter and except as, individually or in the aggregate, has not had, and would not reasonably be expected to havehave any liability or obligation (each, a Material Adverse Effect on the Company“Company Employee Plan”), with respect to the Company Plans:
(1) each Company Plan has been established and administered in accordance with its terms and in compliance with the applicable provisions of ERISA, the Code and all other applicable Laws, and in the six years preceding the date hereof no reportable event, as defined in Section 4043 of ERISA, no prohibited transaction, as described in Section 406 of ERISA or Section 4975 of the Code, or failure to satisfy the minimum funding standards, within the meaning of Section 302 of ERISA and 412 of the Code, has occurred provided that with respect to any Company PlanEmployee Plans that are employment agreements, and all contributions required to be made under the terms of any Company Plan have been timely made;
(2) each Company Plan intended to be qualified under Section 401(a) of the Code (A) has received a favorable determinationoffer letters, advisory and/or opinion letterconsulting agreements or similar agreements that are terminable without penalty on less than 30 days’ notice, as applicablewithout severance, from the IRS that it is so qualified, (B) the trust maintained thereunder has been determined to be exempt from taxation under Section 501(a) of the Code and (C) to the Company’s knowledge, nothing has occurred since the date of such letter that could reasonably be expected to cause the loss of such qualified status of such Company Plan;
(3) there is no Action (including any investigation, audit or other administrative proceeding) by the Department of Labor, the Pension Benefit Guaranty Corporation, the IRS or any other Governmental Entity or by any plan participant or beneficiary pending, or to the knowledge of the Company, threatened, relating to the Company Plans, any fiduciaries thereof to which the Company could have an indemnification obligation with respect to their duties to the Company Plans or the assets of any of the trusts under any of the Company Plans (other than routine claims for benefits) nor, to the knowledge of the Company, are there facts or circumstances that exist that could reasonably be expect to give rise to any such Actions;
(4) no Company Plan is or, within the preceding six years, has been subject to Title IV of ERISA or subject to Section 412 of the Code and neither the Company nor any Person that is a member of a “controlled group of corporations” with, or is under “common control” with, or is a member of the same “affiliated service group” with the Company, in each case, as defined in Sections 414(b), (c), (m) or (o) of the Code, maintains or contributes to (or has in the past six years maintained or contributed to) a multiemployer plan as defined in Section 3(37) of ERISA or a Title IV Plan;
(5) the Company and its Subsidiaries are not subject to any material liability, including additional contributions, fine, penalties or loss of Tax Deductions as a result of the administration or operation of any Company Plan that is a “group health plan” (as such term is defined in Section 5000(b)(1) of the Code);
(6) no Company Plan provides welfare benefits, including death or medical benefits (whether or not insured) beyond retirement or termination of service, other than coverage mandated solely by applicable Law;
(7) none of the Company Plans provides for payment of an amount or provision of a benefit, the increase of a payment or benefit, the payment of a contingent amount or provision of a contingent benefit, or the acceleration of the payment, funding or vesting of an amount or benefit determined or occasioned, in whole or in part, by reason of the execution of this Agreement or the consummation of the transactions contemplated hereby whether alone or together with any other event; and
(8) no amounts payable under the Company Plans will fail to be deductible for federal income tax purposes by virtue of Section 280G of the Code as a result of the occurrence of the transactions contemplated by this Agreement, either alone or in combination with another event.
(c) The Company and its Subsidiaries have not entered into any employment or employment-related agreements (including change in control agreements and offer letters) or similar payments or benefits, only the forms thereof need to which a named individual is a party, other than those set forth be listed on Section 3.13(a3.12(a) of the Company Disclosure Letter. A correct copy of each of the Company Employee Plans set forth on Schedule 3.12(a) of the Company Disclosure Letter, and all material Contracts relating thereto, or to the funding thereof, including all trust agreements, insurance contracts, administration contracts, investment management agreements, and subscription and participation agreements, have been made available to Parent. In the case of any material Company Employee Plan which is not in written form, the Company has made available to Parent a written description of the material terms of such Company Employee Plan. A copy of the most recent annual report, actuarial report, summary plan description, and IRS determination or opinion letter with respect to each Company Employee Plan, to the extent applicable and available, has been made available to Parent.
(db) Each Company Employee Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A of the Code has been maintained and related Treasury Department guidance has (i) been operated between January 1, 2005 and December 31, 2008, administered in good faith compliance with Section 409A of the Code and Notice 2005-01 and (ii) since January 1, 2009 (or such later date permitted under applicable guidance), been operated in compliance, and is in documentary compliance, in all material respects, respects with the applicable requirements of Section 409A of ERISA, the Code, the Patient Protection and Affordable Care Act, Pub.
(e) Neither the Company nor any Subsidiary has a binding commitment to create any additional material Company Plan, or any plan, agreement or arrangement that would be a material Company Plan if adopted, or to modify or terminate any existing material Company Plan, except as required by applicable Law.
(f) The ESOP is an “employee stock ownership plan” within the meaning of Section 4975(e)(7) of the Code. Neither the Company nor the ESOP has, within the three year period immediately preceding the date of this Agreement, received any inquiry or notice from the IRS or any other governmental agency the effect of which is to question the qualification or status of the ESOP or any transaction entered into by the ESOP or the Company (with respect to the ESOP). The ESOP and the Company have filed all reports, returns or other documents in respect of the ESOP which are required to be filed pursuant to the applicable provisions of the Code and ERISA and the regulations thereunder. All loans entered into by the ESOP (the “ESOP Loans”) constitute “exempt loans” under Treasury Regulation Section 54.4975-7(b)(1)(iii). The securities held by the ESOP constitute “employer securities” under ERISA Section 407(d)(1) and Section 409(l) of the Code and “qualifying employer securities” under ERISA Section 407(d)(5) and Section 4975(e)(8) of the Code.
Appears in 1 contract
Benefit Plans. (a) Section 3.13(a) of the Company Disclosure Letter contains a true and complete list of each Schedule 4.17 hereto sets forth all material Company Plan. For purposes of this Agreement, “Company Plan” means each “employee benefit plan” plans, agreements and arrangements of any type (within the meaning of including, but not limited to, plans described in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“"ERISA”")), stock purchase, stock option, severance, employment, change-in-control, fringe benefit, bonus, incentive, deferred compensation, employee loan or other employee benefit plan, agreement, program, policy or other arrangement, whether or not subject to ERISA (including any funding mechanism therefor now in effect or required in the future as a result of the transactions contemplated by this Agreement or otherwise), whether written or unwritten, in each case (i) maintained by the Company Company, RMI or any Subsidiary for the benefit of its Subsidiaries for current or former directors, employees or consultants of the Company or (ii) under which (A) any employee, director or consultant or former employee, director or consultant of the Company or any of its Subsidiaries has any present or future right to benefits and (B) the Company or any of its Subsidiaries has had or has any present or future liability or obligation to contribute. With respect to each material Company Plan, the Company has furnished or made available to Parent a current, accurate and complete copy thereof, including any amendments, and, to the extent applicable: (i) any related trust agreement or other funding instrument, (ii) the most recent determination, opinion or advisory letter of the Internal Revenue Service (the “IRS”), if applicable, (iii) any summary plan description or other material written communications by the Company or its Subsidiaries to their employees concerning the extent of the benefits provided under a Company Plan and (iv) the most recent (A) Form 5500 and attached schedules, (B) audited financial statements, and (C) actuarial valuation reports.
(b) Except as disclosed in Section 3.13(b) of the Company Disclosure Letter and except as, individually or in the aggregate, has not had, and would not reasonably be expected to have, a Material Adverse Effect on the Company, with respect to the Company Plans:
(1) each Company Plan has been established and administered in accordance with its terms and in compliance with the applicable provisions of ERISA, the Code and all other applicable Laws, and in the six years preceding the date hereof no reportable event, as defined in Section 4043 of ERISA, no prohibited transaction, as described in Section 406 of ERISA or Section 4975 of the Code, or failure to satisfy the minimum funding standards, within the meaning of Section 302 of ERISA and 412 of the Code, has occurred with respect to any Company Plan, and all contributions required to be made under the terms of any Company Plan have been timely made;
(2) each Company Plan intended to be qualified under Section 401(a) of the Code (A) has received a favorable determination, advisory and/or opinion letter, as applicable, from the IRS that it is so qualified, (B) the trust maintained thereunder has been determined to be exempt from taxation under Section 501(a) of the Code and (C) to the Company’s knowledge, nothing has occurred since the date of such letter that could reasonably be expected to cause the loss of such qualified status of such Company Plan;
(3) there is no Action (including any investigation, audit or other administrative proceeding) by the Department of Labor, the Pension Benefit Guaranty Corporation, the IRS or any other Governmental Entity or by any plan participant or beneficiary pending, or to the knowledge of the Company, threatenedRMI or any Subsidiary, relating to the Company Plans, any fiduciaries thereof or with respect to which the Company could have an indemnification obligation with respect to their duties to the Company Plans or the assets of any of the trusts under any of the Company Plans (other than routine claims for benefits) nor, to the knowledge of the Company, are there facts RMI or circumstances that exist that could reasonably be expect to give rise to any such Actions;
Subsidiary has a material liability (4) no Company Plan is orincluding, within the preceding six yearsbut not limited to, has been subject to Title IV of ERISA or subject to liabilities arising from affiliation under Section 412 of the Code and neither the Company nor any Person that is a member of a “controlled group of corporations” with, or is under “common control” with, or is a member of the same “affiliated service group” with the Company, in each case, as defined in Sections 414(b), (c), (m) or (o) of the Internal Revenue Code of 1986, as amended (the "Code, maintains ") or contributes to Section 4001 of ERISA) (or has in the past six years maintained or contributed to) a multiemployer plan as defined in Section 3(37) of ERISA or a Title IV Plan;"Benefit Plans").
(5b) With respect to each Benefit Plan, the Company has made available to Buyer true and complete copies of: (i) any and all plan texts and agreements; (ii) any and all summary plan descriptions and material modifications thereto; (iii) the Company two most recent annual reports, if applicable; (iv) the most recent annual and its Subsidiaries are not subject to any material liabilityperiodic accounting of plan assets, including additional contributionsif applicable; and (v) the most recent determination letter received from the Internal Revenue Service (the "Service"), fine, penalties or loss of Tax Deductions as a result of the administration or operation of any Company Plan that is a “group health plan” (as such term is defined in Section 5000(b)(1) of the Code);
(6) no Company Plan provides welfare benefits, including death or medical benefits (whether or not insured) beyond retirement or termination of service, other than coverage mandated solely by applicable Law;
(7) none of the Company Plans provides for payment of an amount or provision of a benefit, the increase of a payment or benefit, the payment of a contingent amount or provision of a contingent benefit, or the acceleration of the payment, funding or vesting of an amount or benefit determined or occasioned, in whole or in part, by reason of the execution of this Agreement or the consummation of the transactions contemplated hereby whether alone or together with any other event; and
(8) no amounts payable under the Company Plans will fail to be deductible for federal income tax purposes by virtue of Section 280G of the Code as a result of the occurrence of the transactions contemplated by this Agreement, either alone or in combination with another eventif applicable.
(c) The Company and its Subsidiaries have not entered into any employment or employment-related agreements (including change in control agreements and offer letters) to which a named individual is a party, other than those Except as set forth on Schedule 4.17, with respect to each Benefit Plan: (i) such plan has been administered and enforced in accordance with its terms and all applicable laws in all material respects; (ii) no breach of fiduciary duty has occurred with respect to which the Company, RMI, any Subsidiary, or any Benefit Plan may be liable or otherwise damaged in any material respect; (iii) no material disputes are pending or threatened; and (iv) no "prohibited transaction" (within the meaning of either Section 3.13(a4975(c) of the Company Disclosure LetterCode or Section 406 of ERISA) has occurred with respect to which the Company, RMI, any Subsidiary, or any Benefit Plan may be liable or otherwise damaged in any material respect.
(d) Each Company Except as set forth on Schedule 4.17, no Benefit Plan that is a “nonqualified deferred compensation plan” within the meaning subject to Title IV of Section 409A of the Code and related Treasury Department guidance has (i) been operated between January 1, 2005 and December 31, 2008, in good faith compliance with Section 409A of the Code and Notice 2005-01 and (ii) since January 1, 2009 (or such later date permitted under applicable guidance), been operated in compliance, and is in documentary compliance, in all material respects, with the requirements of Section 409A of the CodeERISA.
(e) Neither the Company nor any Subsidiary has a binding commitment to create any additional material Company Plan, or any plan, agreement or arrangement that would be a material Company Plan if adopted, or to modify or terminate any existing material Company Plan, except as required by applicable Law.
(f) The ESOP is an “employee stock ownership plan” within the meaning of Section 4975(e)(7) of the Code. Neither the Company nor the ESOP has, within the three year period immediately preceding the date of this Agreement, received any inquiry or notice from the IRS or any other governmental agency the effect of which is to question the qualification or status of the ESOP or any transaction entered into by the ESOP or the Company (with respect to the ESOP). The ESOP and the Company have filed all reports, returns or other documents in respect of the ESOP which are required to be filed pursuant to the applicable provisions of the Code and ERISA and the regulations thereunder. All loans entered into by the ESOP (the “ESOP Loans”) constitute “exempt loans” under Treasury Regulation Section 54.4975-7(b)(1)(iii). The securities held by the ESOP constitute “employer securities” under ERISA Section 407(d)(1) and Section 409(l) of the Code and “qualifying employer securities” under ERISA Section 407(d)(5) and Section 4975(e)(8) of the Code.
Appears in 1 contract
Benefit Plans. (a) Section 3.13(aSchedule 4.6(a) of the Company Disclosure Letter contains a true and complete list of each material Company Plan. For purposes of this Agreement, “Company Plan” means each “employee benefit plan” (within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”)), stock purchase, stock option, severance, employment, change-in-control, fringe benefit, bonus, incentive, deferred compensation, employee loan or other employee benefit plan, agreement, program, policy or other arrangement, whether or not subject to ERISA (including any funding mechanism therefor now in effect or required in the future as a result of the transactions contemplated by this Agreement or otherwise), whether written or unwritten, in each case (i) maintained by the Company or any of its Subsidiaries for current or former directors, employees or consultants of the Company or (ii) under which (A) any employee, director or consultant or former employee, director or consultant of the Company or any of its Subsidiaries has any present or future right to benefits and (B) the Company or any of its Subsidiaries has had or has any present or future liability or obligation to contribute. With respect to each material Company Plan, the Company has furnished or made available to Parent a current, accurate and complete copy thereof, including any amendments, and, to the extent applicablelists: (i) each Employee Benefit Plan contributed to, sponsored or maintained by Seller as of the date hereof, or for which it has any related trust agreement Liability, in each case, for the benefit of any Prospective Employee; and (ii) each material employment agreement, including any material individual benefit arrangement or policy (other funding instrumentthan any arrangement or policy that is mandatory under applicable Legal Requirements), 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 determination, IRS determination or opinion or advisory letter of the Internal Revenue Service (the “IRS”), if applicable, (iiiapplicable to any tax-qualified plan from which Purchaser’s 401(k) any summary plan description or other material written communications by the Company or its Subsidiaries to their employees concerning the extent of the benefits provided under a Company Plan and (iv) the most recent (A) Form 5500 and attached schedules, (B) audited financial statements, and (C) actuarial valuation reportswill accept an eligible rollover distribution.
(b) Except as disclosed in Section 3.13(b) Neither the execution and delivery of this Agreement nor the consummation of the Company Disclosure Letter Transactions will result in any payment (including severance, 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 except asits 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), individually that has resulted or would reasonably be expected to result, separately or in the aggregate, has not had, and would not reasonably be expected to have, a Material Adverse Effect on the Company, with respect to the Company Plans:
(1) each Company Plan has been established and administered in accordance with its terms and in compliance with the applicable provisions of ERISA, the Code and all other applicable Laws, and in the six years preceding the date hereof no reportable event, as defined in Section 4043 payment of ERISA, no prohibited transaction, as described in Section 406 of ERISA or Section 4975 of the Code, or failure to satisfy the minimum funding standards, any “excess parachute payment” within the meaning of Section 302 of ERISA and 412 of the Code, has occurred with respect to any Company Plan, and all contributions required to be made under the terms of any Company Plan have been timely made;
(2) each Company Plan intended to be qualified under Section 401(a) 280G of the Code (Aor any corresponding provisions of state, local or foreign Tax Law).
(c) has received a favorable determination, advisory and/or opinion letter, as applicable, from the IRS Neither Seller nor any other Person that it is so qualified, (B) the trust maintained thereunder would be or has been determined to be exempt from taxation considered a single employer with Seller under Section 501(a) of the Code and or ERISA has at any time contributed to, been required to contribute to or had any Liability whatsoever (Cwhether direct, indirect, contingent or otherwise) pursuant to the Company’s knowledge, nothing has occurred since the date of such letter that could reasonably be expected to cause the loss of such qualified status of such Company Plan;
(3) there is no Action (including any investigation, audit or other administrative proceeding) by the Department of Labor, the Pension Benefit Guaranty Corporation, the IRS or any other Governmental Entity or by any a plan participant or beneficiary pending, or to the knowledge of the Company, threatened, relating to the Company Plans, any fiduciaries thereof to which the Company could have an indemnification obligation with respect to their duties to the Company Plans or the assets of any of the trusts under any of the Company Plans (other than routine claims for benefits) nor, to the knowledge of the Company, are there facts or circumstances that exist that could reasonably be expect to give rise to any such Actions;
(4) no Company Plan is or, within the preceding six years, has been subject to Title IV of ERISA or subject to Section 412 of the Code and neither the Company nor ERISA, including any Person that is a member of a “controlled group of corporationsmultiemployer plan” with, or is under “common control” with, or is a member of the same “affiliated service group” with the Company, in each case, as defined in Sections 414(b), (c), (m) or (o) of the Code, maintains or contributes to (or has in the past six years maintained or contributed to) a multiemployer plan as defined in Section 3(37) of ERISA or a Title IV Plan;
(5) the Company and its Subsidiaries are not subject that in any such case could result in any Liability to any material liability, including additional contributions, fine, penalties or loss of Tax Deductions as a result of the administration or operation of any Company Plan that is a “group health plan” (as such term is defined in Section 5000(b)(1) of the Code);
(6) no Company Plan provides welfare benefits, including death or medical benefits (whether or not insured) beyond retirement or termination of service, other than coverage mandated solely by applicable Law;
(7) none of the Company Plans provides for payment of an amount or provision of a benefit, the increase of a payment or benefit, the payment of a contingent amount or provision of a contingent benefit, or the acceleration of the payment, funding or vesting of an amount or benefit determined or occasioned, in whole or in part, by reason of the execution of this Agreement or the consummation of the transactions contemplated hereby whether alone or together with any other event; and
(8) no amounts payable under the Company Plans will fail to be deductible for federal income tax purposes by virtue of Section 280G of the Code as a result of the occurrence of the transactions contemplated by this Agreement, either alone or in combination with another event.
(c) The Company and its Subsidiaries have not entered into any employment or employment-related agreements (including change in control agreements and offer letters) to which a named individual is a party, other than those set forth on Section 3.13(a) of the Company Disclosure LetterPurchaser.
(d) Each Company Seller Plan that is a “nonqualified deferred compensation plan” within the meaning of intended to be qualified under Section 409A 401 (a) of the Code and has received a favorable determination letter, or is entitled to rely on an opinion letter, from the United States Internal Revenue Service with respect to its initial qualification, and, to Seller’s Knowledge, no 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 or the exempt status of any related Treasury Department guidance has (i) been operated between January 1, 2005 and December 31, 2008, in good faith compliance with Section 409A of the Code and Notice 2005-01 and (ii) since January 1, 2009 (or such later date permitted under applicable guidance), been operated in compliance, and is in documentary compliance, in all material respects, with the requirements of Section 409A of the Codetrust.
(e) Neither the Company nor any Subsidiary has a binding commitment to create any additional material Company Plan, or any plan, agreement or arrangement that would be a material Company Plan if adopted, or to modify or terminate any existing material Company Plan, except Except as required by applicable Law.
(f) The ESOP is an “employee stock ownership plan” within under Section 601 et seq. of ERISA, no Seller Plan covering Prospective Employees located in the meaning of Section 4975(e)(7) of the Code. Neither the Company nor the ESOP hasUnited States provides material health, within the three year period immediately preceding the date of this Agreement, received any inquiry life or notice from the IRS or any other governmental agency the effect of which is to question the qualification or status of the ESOP or any transaction entered into by the ESOP or the Company (with respect to the ESOP). The ESOP and the Company have filed all reports, returns disability insurance following retirement or other documents in respect termination of the ESOP which are required to be filed pursuant to the applicable provisions of the Code and ERISA and the regulations thereunder. All loans entered into by the ESOP (the “ESOP Loans”) constitute “exempt loans” under Treasury Regulation Section 54.4975-7(b)(1)(iii). The securities held by the ESOP constitute “employer securities” under ERISA Section 407(d)(1) and Section 409(l) of the Code and “qualifying employer securities” under ERISA Section 407(d)(5) and Section 4975(e)(8) of the Codeemployment.
Appears in 1 contract
Sources: Asset Purchase Agreement (Forma Therapeutics Holdings, Inc.,)
Benefit Plans. Schedule 3.21 sets forth any employee ------------- benefit plan, fund, program or arrangement (a) Section 3.13(a) of the Company Disclosure Letter contains a true and complete list of each material Company Plan. For purposes of this Agreement, “Company Plan” means each “including but not limited to employee benefit plan” (within the meaning of plans as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974ERISA) and all other employee benefit arrangements or payroll practices including, as amended (“ERISA”))without limitation, severance pay, sick leave, vacation pay, salary continuation for disability, consulting or other compensation agreements, deferred compensation, bonus, stock purchase, stock optionand scholarship programs which Presto, severance, employment, change-in-control, fringe benefit, bonus, incentive, deferred compensation, employee loan the Shareholders or other employee benefit plan, agreement, program, policy any trade or other arrangement, business (whether or not subject to ERISA (including any funding mechanism therefor now in effect incorporated) which is under control or required in the future which has ever been treated as a result of single employer with Presto or the transactions contemplated by this Agreement or otherwise), whether written or unwritten, in each case (i) maintained by the Company or any of its Subsidiaries for current or former directors, employees or consultants of the Company or (ii) under which (A) any employee, director or consultant or former employee, director or consultant of the Company or any of its Subsidiaries has any present or future right to benefits and (B) the Company or any of its Subsidiaries has had or has any present or future liability or obligation to contribute. With respect to each material Company Plan, the Company has furnished or made available to Parent a current, accurate and complete copy thereof, including any amendments, and, to the extent applicable: (i) any related trust agreement or other funding instrument, (ii) the most recent determination, opinion or advisory letter of the Internal Revenue Service (the “IRS”), if applicable, (iii) any summary plan description or other material written communications by the Company or its Subsidiaries to their employees concerning the extent of the benefits provided under a Company Plan and (iv) the most recent (A) Form 5500 and attached schedules, (B) audited financial statements, and (C) actuarial valuation reports.
(b) Except as disclosed in Section 3.13(b) of the Company Disclosure Letter and except as, individually or in the aggregate, has not had, and would not reasonably be expected to have, a Material Adverse Effect on the Company, with respect to the Company Plans:
(1) each Company Plan has been established and administered in accordance with its terms and in compliance with the applicable provisions of ERISA, the Code and all other applicable Laws, and in the six years preceding the date hereof no reportable event, as defined in Section 4043 of ERISA, no prohibited transaction, as described in Section 406 of ERISA or Section 4975 of the Code, or failure to satisfy the minimum funding standards, within the meaning of Section 302 of ERISA and 412 of the Code, has occurred with respect to any Company Plan, and all contributions required to be made under the terms of any Company Plan have been timely made;
(2) each Company Plan intended to be qualified shareholders under Section 401(a) of the Code (A) has received a favorable determination, advisory and/or opinion letter, as applicable, from the IRS that it is so qualified, (B) the trust maintained thereunder has been determined to be exempt from taxation under Section 501(a) of the Code and (C) to the Company’s knowledge, nothing has occurred since the date of such letter that could reasonably be expected to cause the loss of such qualified status of such Company Plan;
(3) there is no Action (including any investigation, audit or other administrative proceeding) by the Department of Labor, the Pension Benefit Guaranty Corporation, the IRS or any other Governmental Entity or by any plan participant or beneficiary pending, or to the knowledge of the Company, threatened, relating to the Company Plans, any fiduciaries thereof to which the Company could have an indemnification obligation with respect to their duties to the Company Plans or the assets of any of the trusts under any of the Company Plans (other than routine claims for benefits) nor, to the knowledge of the Company, are there facts or circumstances that exist that could reasonably be expect to give rise to any such Actions;
(4) no Company Plan is or, within the preceding six years, has been subject to Title IV of ERISA or subject to Section 412 of the Code and neither the Company nor any Person that is a member of a “controlled group of corporations” with, or is under “common control” with, or is a member of the same “affiliated service group” with the Company, in each case, as defined in Sections 414(b), (c), (m) or (o) of the Internal Revenue Code of 1985, as amended (the "Code") ("ERISA Affiliate") maintains, sponsors, contributes to or is obligated to contribute thereunder ("Plan"). True, correct and complete copies of the following documents with respect to each of the Plans have been made available or delivered to Buyer by Presto; (i) any plans and related trust documents and amendments thereto; (ii) the three most recent Forms 5500; (iii) the last IRS determination letter; (iv) summary plan descriptions; (v) material written communications to employees relating to the Plans; and (vi) written descriptions of all non- written agreements relating to the Plans. Except as otherwise described on Schedule 3.21, (i) each Plan has been operated in conformity with its terms and applicable laws (including but not limited to the Code and ERISA); (ii) all notice and continuation coverage requirements under any group health plan provided by Presto or ERISA Affiliate at Presto has been provided in conformity with the Code and ERISA; (iii) Presto has or will have made on or before the Closing Date all contributions required under any Plan for all plan years beginning before the Closing Date and has no indebtedness, or obligation to incur indebtedness, to any Plan outstanding; and all contributions for any period ending on or before the Closing Date which are not yet due will have been paid or accrued on or prior to the Closing Date; (iv) a letter has been received from the Internal Revenue Service determining that each Plan intended to qualify under Section 401(a) of the Code, maintains or contributes to (or as amended by the Retirement Equity Act and the Deficit Reduction Act of 1984 and by the Tax Reform Act of 1986, the Omnibus Budget Reconciliation Act of 1987, the Unemployment Compensation Amendments Act of 1992 and the Omnibus Budget Reconciliation Act of 1993 are so qualified and the trusts maintained pursuant thereto are exempt from federal income taxation under Section 501 of the Code and nothing has occurred which has resulted in the past six years maintained revocation of such qualification or exemption; (v) neither Presto nor any ERISA Affiliate of Presto sponsors or maintains and are not required to contribute to any defined benefit pension plan (as defined in Section 3(35) of ERISA), is a party to and has not contributed to) a to any multiemployer plan (as defined in Section 3(37) of ERISA) ("Multiemployer Plan"); (vi) no prohibited transaction (as defined in either Section 4975 of the Code or Section 406 of ERISA) has occurred with respect to any Plan; (vii) Presto has complied with all reporting and disclosure requirements under ERISA and the Code to the extent applicable to any Plan; and (viii) no director, officer or employee of Presto, to the extent he or she is a fiduciary with respect to any Plan, has breached any responsibility or obligation imposed upon fiduciaries under Title I of ERISA or a Title IV which would result in any claim being made under, by or on behalf of any Plan;
, participant, beneficiary, alternate payee, co-fiduciary or former fiduciary, and there has been no actual, or to the knowledge of Presto and the Principal Shareholders threatened litigation or governmental administrative action concerning or involving any such Plan. Except with respect to the individuals listed on Schedule 3.21(a), no current or former employees of Presto (5or their beneficiaries) the Company and its Subsidiaries are not subject entitled to any material liability, including additional contributions, fine, penalties post-retirement health or loss of Tax Deductions life insurance continuation coverage under any Plan except as a result may be required under COBRA and at the expense of the administration or operation of any Company Plan that is a “group health plan” (as such term is defined in Section 5000(b)(1) of the Code);
(6) no Company Plan provides welfare benefits, including death or medical benefits (whether or not insured) beyond retirement or termination of service, other than coverage mandated solely by applicable Law;
(7) none of the Company Plans provides for payment of an amount or provision of a benefit, the increase of a payment or benefit, the payment of a contingent amount or provision of a contingent benefit, participant or the acceleration of the payment, funding or vesting of an amount or benefit determined or occasioned, in whole or in part, by reason of the participant's beneficiary. The execution of this Agreement or the consummation of the transactions contemplated hereby whether alone or together with any other event; and
(8) no amounts payable under the Company Plans will fail to be deductible for federal income tax purposes by virtue of Section 280G of the Code as a result of the occurrence of the transactions contemplated by this Agreement, either alone or in combination with another event.
(c) The Company and its Subsidiaries have not entered into any employment or employment-related agreements (including change in control agreements and offer letters) to which a named individual is a party, other than those set forth on Section 3.13(a) of the Company Disclosure Letter.
(d) Each Company Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A of the Code and related Treasury Department guidance has (i) been operated between January 1result in any payment becoming due to any current, 2005 and December 31former or retired employee of Presto or any ERISA Affiliate of Presto, 2008, in good faith compliance with Section 409A of the Code and Notice 2005-01 and (ii) since January 1, 2009 (or such later date permitted increase any benefits under applicable guidance), been operated in compliance, and is in documentary compliance, in all material respects, with the requirements of Section 409A of the Code.
(e) Neither the Company nor any Subsidiary has a binding commitment to create any additional material Company Plan, or (iii) accelerate the payment or vesting of any plan, agreement such benefits. No liability under any Plan has been funded nor had any such obligation been satisfied with the purchase of a contract from an insurance company that is not rated AA by Standard & Poor's Corporation and the equivalent by each other nationally recognized rating agency. No stock or arrangement that would be other security issued by Presto forms or has formed a material Company Plan if adopted, or to modify or terminate any existing material Company Plan, except as required by applicable Law.
(f) The ESOP is an “employee stock ownership plan” within the meaning of Section 4975(e)(7) part of the Codeassets of any Plan. Neither Presto nor any ERISA Affiliate of Presto has withdrawn in a complete or partial withdrawal from any Multiemployer Plan prior to the Company Closing Date, nor has any of them incurred any liability due to the ESOP has, within termination or reorganization of a Multiemployer Plan; and Buyer will not have (i) any obligation to make any contribution to any Multiemployer Plan or (ii) any withdrawal liability from any such Multiemployer Plan under Section 4201 of ERISA which it would not have had it not purchased the three year period immediately preceding Presto Shares from the date Shareholders at the Closing in accordance with the terms of this Agreement, received any inquiry or notice from the IRS or any other governmental agency the effect of which is to question the qualification or status of the ESOP or any transaction entered into by the ESOP or the Company (with respect to the ESOP). The ESOP and the Company have filed all reports, returns or other documents in respect of the ESOP which are required to be filed pursuant to the applicable provisions of the Code and ERISA and the regulations thereunder. All loans entered into by the ESOP (the “ESOP Loans”) constitute “exempt loans” under Treasury Regulation Section 54.4975-7(b)(1)(iii). The securities held by the ESOP constitute “employer securities” under ERISA Section 407(d)(1) and Section 409(l) of the Code and “qualifying employer securities” under ERISA Section 407(d)(5) and Section 4975(e)(8) of the Code.
Appears in 1 contract
Benefit Plans. (a) Section 3.13(a) of 6.12(a)(i)of the Company Disclosure Letter contains a true and complete list lists, as of each material Company Plan. For purposes of this Agreementthe date hereof, “Company Plan” means each “employee benefit plan” (within the meaning of as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”)), stock purchase, stock option, severance, employment, change-in-control, fringe and all other benefit, bonus, incentive, deferred compensation, employee loan stock option (or other employee equity-based compensation), severance, retention, change in control, welfare (including post-retirement medical and life insurance), fringe benefit planand similar plans, agreementprograms, program, policy or other arrangementpolicies and arrangements, whether or not subject to ERISA (including any funding mechanism therefor now in effect or required in the future as a result of the transactions contemplated by this Agreement or otherwise), and whether written or unwrittenoral, in each case (i) sponsored, maintained or contributed to or required to be maintained or contributed to by the Company or any of its Subsidiaries for current or former directors, employees or consultants of the Company Subsidiaries, or (ii) under with respect to which (A) any employeePerson who is currently, director or consultant or former employeehas been or, director or consultant prior to the Effective Time, is expected to become, an employee of the Company or any of its the Company Subsidiaries has (collectively, “Company Employees”) is entitled to any present benefit (the “Company Benefit Plans”), or future right with respect to benefits and (B) which the Company or any of its the Company Subsidiaries has had or has any present or future liability or obligation to contributeliability. With respect to each material Company Plan, the Company has furnished or made available to Parent a current, accurate and complete copy thereof, including any amendments, and, to the extent applicable: (i) any related trust agreement or other funding instrument, (ii) the most recent determination, opinion or advisory letter of the Internal Revenue Service (the “IRS”), if applicable, (iii) any summary plan description or other material written communications by the Company or its Subsidiaries to their employees concerning the extent of the benefits provided under a Company Plan and (iv) the most recent (A) Form 5500 and attached schedules, (B) audited financial statements, and (C) actuarial valuation reports.
(b) Except as disclosed in Section 3.13(b6.12(a)(ii) of the Company Disclosure Letter sets forth, as of the date hereof, a complete and accurate list of each material employment, consulting, severance, change in control, retention, termination or other material bilateral contract between any Company Employee, on the one hand, and the Company or any Company Subsidiary, on the other hand, in each case, that is not a Company Benefit Plan (collectively, the “Company Benefit Agreements”). With respect to each Company Benefit Plan and Company Benefit Agreement, the Company has provided to Verizon complete and accurate copies of (A) such Company Benefit Plan or Company Benefit Agreement, including any amendment thereto, (B) each trust, insurance, annuity or other funding contract related thereto, (C) the most recent financial statements and actuarial or other valuation reports prepared with respect thereto and (D) the two most recent annual reports on Form 5500 required to be filed with the IRS with respect thereto (if any).
(b) No material liability under Title IV (including Sections 4069 and 4212(c) of ERISA) or Section 302 of ERISA, or Section 412 of the Code, has been incurred by the Company, any of the Company Subsidiaries or any ERISA Affiliate of any of them, and no condition exists that would reasonably be expected to result in the Company, any of the Company Subsidiaries or any ERISA Affiliate of any of them incurring any such liability, other than liability for premiums due to the PBGC. The present value of accrued benefits under each Company Benefit Plan that is subject to Title IV of ERISA, determined based upon the actuarial assumptions used for funding purposes in the most recent actuarial report prepared by such plan’s actuary with respect to such plan, did not exceed, as of its latest valuation date, the then current value of the assets of such plan allocable to such accrued benefits.
(c) (i) No Company Benefit Plan is a “multiemployer plan,” as defined in Section 3(37) of ERISA and (ii) none of the Company, the Company Subsidiaries or any ERISA Affiliate of any of them has made or suffered a “complete withdrawal” or a “partial withdrawal,” as such terms are respectively defined in Sections 4203 and 4205 of ERISA, the liability for which has not been satisfied in full.
(d) Each Company Benefit Plan and Company Benefit Agreement has been operated and administered in all material respects in accordance with its terms and applicable Law, including ERISA and the Code. All contributions and premium payments required to be made with respect to any Company Benefit Plan or Company Benefit Agreement have been timely made, except asfor any contributions in respect of benefits that have become due but that are not yet payable under the terms of the applicable Company Benefit Plan or Company Benefit Agreement. Appropriate reserves or accruals have been taken on the Company’s financial statements in accordance with GAAP in respect of any unpaid liabilities incurred or accrued under or in respect of any Company Benefit Plan or Company Benefit Agreement. There are no pending or, to the Company’s Knowledge, threatened claims by, on behalf of or against any of the Company Benefit Plans in effect as of the date hereof or any Assets thereof, that, if adversely determined would reasonably be expected to have, individually or in the aggregate, has not had, and would not reasonably be expected to have, a Material Adverse Effect on the Company, and no matter is pending (other than routine qualification determination filings, copies of which have been furnished to Verizon and Spinco or will be promptly furnished to Verizon and Spinco when made) with respect to any of the Company Plans:Benefit Plans before the IRS, the United States Department of Labor or the PBGC.
(1e) each Each Company Benefit Plan has been established and administered in accordance with its terms and in compliance with the applicable provisions of ERISA, the Code and all other applicable Laws, and in the six years preceding the date hereof no reportable event, as defined in Section 4043 of ERISA, no prohibited transaction, as described in Section 406 of ERISA or Section 4975 of the Code, or failure intended to satisfy the minimum funding standards, be “qualified” within the meaning of Section 302 of ERISA and 412 of the Code, has occurred with respect to any Company Plan, and all contributions required to be made under the terms of any Company Plan have been timely made;
(2) each Company Plan intended to be qualified under Section 401(a) of the Code (A) has received a favorable determination, advisory and/or opinion letter, as applicable, from the IRS that it is so qualified, (B) qualified and the trust trusts maintained thereunder has been determined to be are exempt from taxation under Section 501(a) of the Code, each trust maintained under any Company Benefit Plan intended to satisfy the requirements of Section 501(c)(9) of the Code and (C) to the Company’s knowledgehas satisfied such requirements and, nothing in either such case, no event has occurred since the date of such letter or condition is known to exist that could would reasonably be expected to cause the loss of have a material adverse effect on such tax-qualified status of for any such Company Plan;Benefit Plan or any such trust.
(3f) there is No Company Benefit Plan or Company Benefit Agreement, and no Action contractual arrangements between the Company and any third party, exists that could result in (including i) the payment to any investigationcurrent, audit former or other administrative proceeding) by the Department of Laborfuture director, the Pension Benefit Guaranty Corporationofficer, the IRS stockholder or any other Governmental Entity or by any plan participant or beneficiary pending, or to the knowledge employee of the Company, threatened, relating to the Company Plans, any fiduciaries thereof to which the Company could have an indemnification obligation with respect to their duties to the Company Plans or the assets of any of the trusts under any of the Company Plans Subsidiaries, or of any entity the assets or capital stock of which have been acquired by the Company or a Company Subsidiary, of any money or other property or benefits, (other than routine claims for benefitsii) nor, to the knowledge acceleration of the Company, are there facts time of payment or circumstances that exist that could reasonably be expect to give rise to any such Actions;
(4) no Company Plan is or, within the preceding six years, has been subject to Title IV of ERISA or subject to Section 412 of the Code and neither the Company nor any Person that is a member of a “controlled group of corporations” withvesting, or is trigger any funding, of any compensation or benefits under “common control” withany Company Benefit Plan or Company Benefit Agreement or (iii) the breach or violation of, default under or is a member of the same “affiliated service group” with limitation on the Company’s right to amend, modify or terminate any Company Benefit Plan or Company Benefit Agreement, in each case, as defined in Sections 414(b), (c), (m) or (o) of the Code, maintains or contributes to (or has in the past six years maintained or contributed to) a multiemployer plan as defined in Section 3(37) of ERISA or a Title IV Plan;
(5) the Company and its Subsidiaries are not subject to any material liability, including additional contributions, fine, penalties or loss of Tax Deductions case as a result of the administration or operation of any Company Plan that is a “group health plan” (as such term is defined in Section 5000(b)(1) of the Code);
(6) no Company Plan provides welfare benefits, including death or medical benefits (whether or not insured) beyond retirement or termination of service, other than coverage mandated solely by applicable Law;
(7) none of the Company Plans provides for payment of an amount or provision of a benefit, the increase of a payment or benefit, the payment of a contingent amount or provision of a contingent benefit, or the acceleration of the payment, funding or vesting of an amount or benefit determined or occasioned, in whole or in part, by reason of the execution of this Agreement or the consummation of the transactions contemplated hereby by the Transaction Agreements whether alone or together with any other event; and
not (8) no amounts payable under a) such payment, acceleration or provision would constitute a “parachute payment” (within the Company Plans will fail to be deductible for federal income tax purposes by virtue meaning of Section 280G of the Code as a result of the occurrence of the transactions contemplated by this Agreement, either alone Code) or in combination with another event.
(cb) The Company and its Subsidiaries have not entered into any employment some other action or employment-related agreements event (including change in control agreements and offer lettersseparation from service) to which a named individual is a party, other than those set forth on Section 3.13(a) of the Company Disclosure Letter.
(d) Each Company Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A of the Code and related Treasury Department guidance has (i) been operated between January 1, 2005 and December 31, 2008, in good faith compliance with Section 409A of the Code and Notice 2005-01 and (ii) since January 1, 2009 (or such later date permitted under applicable guidance), been operated in compliance, and is in documentary compliance, in all material respects, with the requirements of Section 409A of the Code.
(e) Neither the Company nor any Subsidiary has a binding commitment to create any additional material Company Plan, or any plan, agreement or arrangement that would be a material Company Plan if adopted, or to modify or terminate any existing material Company Plan, except as required by applicable Law.
(f) The ESOP is an “employee stock ownership plan” within the meaning of Section 4975(e)(7) of the Code. Neither the Company nor the ESOP has, within the three year period immediately preceding the date of this Agreement, received any inquiry or notice from the IRS or any other governmental agency the effect of which is to question the qualification or status of the ESOP or any transaction entered into by the ESOP or the Company (with respect to the ESOP). The ESOP and the Company have filed all reports, returns or other documents in respect of the ESOP which are required to cause such payment, acceleration or provision to be filed pursuant to the applicable provisions of the Code and ERISA and the regulations thereunder. All loans entered into by the ESOP (the “ESOP Loans”) constitute “exempt loans” under Treasury Regulation Section 54.4975-7(b)(1)(iii). The securities held by the ESOP constitute “employer securities” under ERISA Section 407(d)(1) and Section 409(l) of the Code and “qualifying employer securities” under ERISA Section 407(d)(5) and Section 4975(e)(8) of the Codetriggered.
Appears in 1 contract
Benefit Plans. (ai) Section 3.13(a4.1(j)(i) of the Company Disclosure Letter contains sets forth a true and complete list of each material Company Plan. For purposes of this AgreementBenefit Plan or, “Company Plan” means each “employee benefit plan” (within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”)), stock purchase, stock option, severance, employment, change-in-control, fringe benefit, bonus, incentive, deferred compensation, employee loan or other employee benefit plan, agreement, program, policy or other arrangement, whether or not subject to ERISA (including any funding mechanism therefor now in effect or required in the future case of employment or offer letters or agreements, forms thereof that are substantially the same as a result of the transactions contemplated by this Agreement or otherwise), whether written or unwritten, in each case (i) maintained by the Company or any of its Subsidiaries for current or former directors, employees or consultants of the Company or (ii) under which (A) any employee, director or consultant or former employee, director or consultant of the Company or any of its Subsidiaries has any present or future right to benefits and (B) the Company or any of its Subsidiaries has had or has any present or future liability or obligation to contributeindividual agreements. With respect to each material Company Benefit Plan, the Company has furnished or made available available, upon request, to Parent a current, complete and accurate and complete copy thereof, including any amendments, copies of (A) such Company Benefit Plan and, to the extent applicable: , summary plan description thereof, (iB) any related trust agreement each trust, insurance, annuity or other funding instrumentcontract related thereto, (iiC) the most recent determinationaudited financial statements and actuarial or other valuation reports prepared with respect thereto, opinion or advisory letter of (D) the most recent annual report on Form 5500 required to be filed with the Internal Revenue Service (the “IRS”)) with respect thereto and (E) the most recently received IRS determination letter or opinion, if applicable, (iii) any summary plan description or other material written communications by the Company or its Subsidiaries to their employees concerning the extent of the benefits provided under a Company Plan and (iv) the most recent (A) Form 5500 and attached schedules, (B) audited financial statements, and (C) actuarial valuation reports.
(bii) Except as disclosed in Section 3.13(b) of the Company Disclosure Letter and except as, individually or in the aggregate, has not had, and would not reasonably be expected to have, have a Material Adverse Effect on the Company, with respect to (A) each of the Company Plans:
(1) each Company Plan Benefit Plans has been established operated and administered in accordance compliance with its terms and in compliance accordance with the applicable provisions of Applicable Laws, including ERISA, the Code and all other applicable Laws, and in each case the six years preceding the date hereof no reportable event, as defined in Section 4043 of ERISA, no prohibited transaction, as described in Section 406 of ERISA or Section 4975 of the Code, or failure to satisfy the minimum funding standards, within the meaning of Section 302 of ERISA and 412 of the Code, has occurred with respect to any Company Plan, and all contributions required to be made under the terms of any Company Plan have been timely made;
(2) each Company Plan intended to be qualified under Section 401(a) of the Code (A) has received a favorable determination, advisory and/or opinion letter, as applicable, from the IRS that it is so qualified, regulations thereunder; (B) the trust maintained thereunder has been determined to be exempt from taxation under Section 501(a) of the Code and (C) to the Company’s knowledge, nothing has occurred since the date of such letter that could reasonably be expected to cause the loss of such qualified status of such Company Plan;
(3) there is no Action (including any investigation, audit or other administrative proceeding) by the Department of Labor, the Pension Benefit Guaranty Corporation, the IRS or any other Governmental Entity or by any plan participant or beneficiary pending, or to the knowledge of the Company, threatened, relating to the Company Plans, any fiduciaries thereof to which the Company could have an indemnification obligation with respect to their duties to the Company Plans or the assets of any of the trusts under any of the Company Plans (other than routine claims for benefits) nor, to the knowledge of the Company, are there facts or circumstances that exist that could reasonably be expect to give rise to any such Actions;
(4) no Company Plan is or, within the preceding six years, has been subject to Title IV of ERISA or subject to Section 412 of the Code and neither the Company nor any Person that is a member of a “controlled group of corporations” with, or is under “common control” with, or is a member of the same “affiliated service group” with the Company, in each case, as defined in Sections 414(b), (c), (m) or (o) of the Code, maintains or contributes to (or has in the past six years maintained or contributed to) a multiemployer plan as defined in Section 3(37) of ERISA or a Title IV Plan;
(5) the Company and its Subsidiaries are not subject to any material liability, including additional contributions, fine, penalties or loss of Tax Deductions as a result of the administration or operation of any Company Plan that is a “group health plan” (as such term is defined in Section 5000(b)(1) of the Code);
(6) no Company Benefit Plan provides welfare benefits, including death or medical benefits (whether or not insured) ), with respect to current or former employees or directors of the Company or its subsidiaries beyond their retirement or other termination of service, other than coverage mandated solely by applicable Law;the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”), or comparable U.S. state or foreign law; (C) all contributions or other amounts payable by the Company or its subsidiaries as of the Effective Time pursuant to each Company Benefit Plan in respect of current or prior plan years have been timely paid or, to the extent not yet due, have been accrued in accordance with GAAP; (D) neither the Company nor any of its subsidiaries has engaged in a transaction in connection with which the Company or its subsidiaries could be subject to either a civil penalty assessed pursuant to Section 409 or 502(i) of ERISA or a tax imposed pursuant to Section 4975 or 4976 of the Code; and (E) there are no pending, or to the knowledge of the Company, threatened in writing or anticipated claims, actions, investigations or audits (other than routine claims for benefits) by, on behalf of or against any of the Company Benefit Plans or any trusts related thereto.
(7iii) Except as set forth on Section 4.1(j)(iii) of the Company Disclosure Letter, none of the Company, any of its subsidiaries or any of their respective ERISA Affiliates contributes to or is obligated to contribute to, or within the six years preceding the date of this Agreement contributed to, or was obligated to contribute to, a Multiemployer Plan or Multiple Employer Plan, and none of the Company, any of its subsidiaries or any of their respective ERISA Affiliates has, within the preceding six years, withdrawn in a complete or partial withdrawal from any Multiemployer Plan or incurred any liability under Section 4202 of ERISA.
(iv) Except as, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect on the Company, each of the Company Benefit Plans intended to be “qualified” within the meaning of Section 401(a) of the Code, (A) is so qualified and there are no existing circumstances or any events that have occurred that would reasonably be expected to adversely affect the qualified status of any such plan and (B) has received a favorable determination letter or opinion letter as to its qualification.
(v) Section 4.1(j)(v) of the Company Disclosure Letter sets forth each Company Benefit Plan that is subject to Section 302 or Title IV of ERISA or Section 412, 430 or 4971 of the Code (each, a “Company Title IV Plan”). With respect to each Company Title IV Plan, except for matters that, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect on the Company, (A) there does not exist any accumulated funding deficiency within the meaning of Section 412 of the Code or Section 302 of ERISA, whether or not waived, (B) no such Company Title IV Plan is currently in “at risk” status within the meaning of Section 430 of the Code or Section 303(i) of ERISA, (C) no reportable event within the meaning of Section 4043(c) of ERISA for which the 30-day notice requirement has not been waived has occurred, (D) none of the Company, any of its subsidiaries or any of their respective ERISA Affiliates has engaged in any transaction described in Section 4069, 4204(a) or 4212(c) of ERISA, (E) all premiums to the Pension Benefit Guaranty Corporation (the “PBGC”) have been timely paid in full, (F) no liability (other than for premiums to the PBGC) has been or, to the knowledge of the Company, is expected to be incurred by the Company Plans provides or any of its subsidiaries and (G) the PBGC has not instituted proceedings to terminate any such Company Title IV Plan. Except for payment matters that, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect on the Company, there does not now exist, nor do any circumstances exist that could result in, any Controlled Group Liability that would be a liability following the Closing of an amount the Company, any of its subsidiaries or provision any of a benefittheir respective ERISA Affiliates. Since July 1, the increase of a payment 2014, there has not been any material change in any actuarial or benefit, the payment of a contingent amount or provision of a contingent benefitother assumption used to calculate funding obligations with respect to any Company Title IV Plan, or any material change in the manner in which contributions to any Company Title IV Plan are made or the basis on which such contributions are determined.
(vi) Neither the execution and delivery of this Agreement nor the consummation of the Transactions (either alone or in conjunction with any other event) will (A) result in any payment (including severance, unemployment compensation, “excess parachute payment” (within the meaning of Section 280G of the Code), forgiveness of indebtedness or otherwise) becoming due to any current or former director or any employee of the Company or its subsidiaries under any Company Benefit Plan or otherwise, (B) increase any benefits otherwise payable under any Company Benefit Plan or (C) result in any acceleration of the time of payment, funding or vesting of an amount or benefit determined or occasioned, in whole or in part, by reason of the execution of this Agreement or the consummation of the transactions contemplated hereby whether alone or together with any other event; andsuch benefits.
(8) no amounts payable under vii) No person is entitled to receive any additional payment (including any Tax gross-up or other payment) from the Company Plans will fail to be deductible for federal income tax purposes by virtue or any of Section 280G of the Code its subsidiaries as a result of the occurrence imposition of the transactions contemplated excise Taxes required by this Agreement, either alone Section 4999 or in combination with another event.
(c) The Company and its Subsidiaries have not entered into any employment or employment-related agreements (including change in control agreements and offer letters) to which a named individual is a party, other than those set forth on Section 3.13(a) of the Company Disclosure Letter.
(d) Each Company Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A 4985 of the Code and related Treasury Department guidance has (i) been operated between January 1, 2005 and December 31, 2008, in good faith compliance with or any Taxes required by Section 409A of the Code and Notice 2005-01 and (ii) since January 1, 2009 (or such later date permitted under applicable guidance), been operated in compliance, and is in documentary compliance, in all material respects, with the requirements of Section 409A 457A of the Code.
(eviii) Neither Except as, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect on the Company, all the Company nor Benefit Plans subject to the laws of any Subsidiary has a binding commitment to create any additional material Company Plan, or any plan, agreement or arrangement that would be a material Company Plan if adopted, or to modify or terminate any existing material Company Plan, except as required by applicable Law.
(f) The ESOP is an “employee stock ownership plan” within the meaning of Section 4975(e)(7) jurisdiction outside of the Code. Neither the Company nor the ESOP hasUnited States (A) have been maintained in accordance with all applicable requirements, within the three year period immediately preceding the date of this Agreement(B) that are intended to qualify for special tax treatment meet all requirements for such treatment, received any inquiry or notice from the IRS or any other governmental agency the effect of which is to question the qualification or status of the ESOP or any transaction entered into by the ESOP or the Company and (with respect to the ESOP). The ESOP and the Company have filed all reports, returns or other documents in respect of the ESOP which C) that are required intended to be filed pursuant to the applicable provisions of the Code and ERISA and the regulations thereunder. All loans entered into by the ESOP (the “ESOP Loans”) constitute “exempt loans” under Treasury Regulation Section 54.4975funded and/or book-7(b)(1)(iii). The securities held by the ESOP constitute “employer securities” under ERISA Section 407(d)(1) and Section 409(l) of the Code and “qualifying employer securities” under ERISA Section 407(d)(5) and Section 4975(e)(8) of the Codereserved are fully funded and/or book reserved, as appropriate, based upon reasonable actuarial assumptions.
Appears in 1 contract
Sources: Merger Agreement (IHS Inc.)
Benefit Plans. (a) Section 3.13(a) Schedule 4.28 of the Company Disclosure Letter contains Schedules sets forth a true and complete list of each the Benefit Plans.
(b) Current and complete copies of all written Benefit Plans or, where oral, written summaries of the material Company Plan. For purposes terms of this Agreementthem, “Company Plan” means each “employee benefit plan” have been provided or made available to the Purchaser together with current and complete copies of all documents relating to the Benefit Plans, including: all documents establishing, creating or amending any of the Benefit Plans; all trust agreements, funding agreements; insurance contracts, and the most recent financial statements and accounting statements and reports; all booklets, summaries, manuals and written communications of a general nature distributed or made available to any Employees or former employees concerning any Benefit Plans.
(within c) Each Pension Plan has been qualified and administered in compliance with (i) the meaning of Section 3(3terms thereof, and (ii) of the Code and the Employee Retirement Income Security Act of 1974, as amended (“"ERISA”")); and the Corporation has not received, stock purchase, stock option, severance, employment, change-in-control, fringe benefit, bonus, incentive, deferred compensation, employee loan or other employee benefit plan, agreement, program, policy or other arrangement, whether or not subject to ERISA (including any funding mechanism therefor now in effect or required in the future as a result last six years, any notice from any Person questioning or challenging such compliance (other than in respect of any claim related solely to that Person).
(d) All obligations to or under the transactions contemplated by this Agreement Pension Plans (whether pursuant to their terms or otherwise)the Code or ERISA) have been satisfied, whether written and there are no outstanding defaults or unwritten, in each case (i) maintained violations under the Pension Plans by the Company Corporation nor do the Corporation Stockholders or the Corporation have any actual knowledge, without further enquiry or investigation, of its Subsidiaries for current any default or former directors, employees or consultants of the Company or violation by any other party to any Pension Plan.
(iie) under which (A) any employee, director or consultant or former employee, director or consultant of the Company or any of its Subsidiaries has any present or future right to benefits and (B) the Company or any of its Subsidiaries has had or has any present or future liability or obligation to contribute. With respect to each material Company Plan, the Company has furnished or made available to Parent a current, accurate and complete copy thereof, including any amendments, and, to the extent applicable: (i) any related trust agreement or other funding instrument, (ii) the most recent determination, opinion or advisory letter of the Internal Revenue Service (the “IRS”), if applicable, (iii) any summary plan description or other material written communications Other than those required by the Company Code or its Subsidiaries to their employees concerning the extent of ERISA, there have been no improvements, increases or changes to, or promised improvements, increases or changes to, the benefits provided under a Company Plan and (iv) the most recent (A) Form 5500 and attached schedules, (B) audited financial statements, and (C) actuarial valuation reports.
(b) Except as disclosed in Section 3.13(b) any Pension Plan. None of the Company Disclosure Letter and except as, individually or in the aggregate, has not had, and would not reasonably be expected to have, a Material Adverse Effect on the Company, with respect to the Company Plans:
(1) each Company Plan has been established and administered in accordance with its terms and in compliance with the applicable provisions of ERISA, the Code and all other applicable Laws, and in the six years preceding the date hereof no reportable event, as defined in Section 4043 of ERISA, no prohibited transaction, as described in Section 406 of ERISA or Section 4975 of the Code, or failure to satisfy the minimum funding standards, within the meaning of Section 302 of ERISA and 412 of the Code, has occurred with respect to any Company Plan, and all contributions required to be made under the terms of any Company Plan have been timely made;
(2) each Company Plan intended to be qualified under Section 401(a) of the Code (A) has received a favorable determination, advisory and/or opinion letter, as applicable, from the IRS that it is so qualified, (B) the trust maintained thereunder has been determined to be exempt from taxation under Section 501(a) of the Code and (C) to the Company’s knowledge, nothing has occurred since the date of such letter that could reasonably be expected to cause the loss of such qualified status of such Company Plan;
(3) there is no Action (including any investigation, audit or other administrative proceeding) by the Department of Labor, the Pension Benefit Guaranty Corporation, the IRS or any other Governmental Entity or by any plan participant or beneficiary pending, or to the knowledge of the Company, threatened, relating to the Company Plans, any fiduciaries thereof to which the Company could have an indemnification obligation with respect to their duties to the Company Plans or the assets of any of the trusts under any of the Company Plans (other than routine claims for benefits) nor, to the knowledge of the Company, are there facts or circumstances that exist that could reasonably be expect to give rise to any such Actions;
(4) no Company Plan is or, within the preceding six years, has been subject to Title IV of ERISA or subject to Section 412 of the Code and neither the Company nor any Person that is a member of a “controlled group of corporations” with, or is under “common control” with, or is a member of the same “affiliated service group” with the Company, in each case, as defined in Sections 414(b), (c), (m) or (o) of the Code, maintains or contributes to (or has in the past six years maintained or contributed to) a multiemployer plan as defined in Section 3(37) of ERISA or a Title IV Plan;
(5) the Company and its Subsidiaries are not subject to any material liability, including additional contributions, fine, penalties or loss of Tax Deductions as a result of the administration or operation of any Company Plan that is a “group health plan” (as such term is defined in Section 5000(b)(1) of the Code);
(6) no Company Plan provides welfare benefits, including death or medical benefits (whether or not insured) beyond retirement or termination of service, other than coverage mandated solely by applicable Law;
(7) none of the Company Plans provides for payment of an amount or provision of a benefit, the increase of a payment or benefit, the payment of a contingent amount or provision of a contingent benefit, benefit increases or the acceleration of or an increase in funding obligations that are contingent upon or will be triggered by the payment, funding or vesting of an amount or benefit determined or occasioned, in whole or in part, by reason of the execution entering into of this Agreement or the consummation of the transactions contemplated hereby whether alone or together with any other event; and
(8) no amounts payable under the Company Plans will fail to be deductible for federal income tax purposes by virtue of Section 280G of the Code as a result of the occurrence completion of the transactions contemplated by this Agreement, either alone or in combination with another event.
(c) The Company and its Subsidiaries have not entered into any employment or employment-related agreements (including change in control agreements and offer letters) to which a named individual is a party, other than those set forth on Section 3.13(a) the full vested of the Company Disclosure Letter.
(d) Each Company Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A of accrued benefits required by the Code and related Treasury Department guidance has (iupon the termination of a Pension Plan qualified under Section 401(a) been operated between January 1, 2005 and December 31, 2008, in good faith compliance with Section 409A of the Code and Notice 2005-01 and (ii) since January 1, 2009 (or such later date permitted under applicable guidance), been operated in compliance, and is in documentary compliance, in all material respects, with the requirements of Section 409A of the Code.
(ef) Neither All employer or employee payments, contributions or premiums required to be remitted, paid to or in respect of each Pension Plan have been paid or remitted in a timely fashion in accordance with the Company nor terms of that Pension Plan and the Code and ERISA, and no Taxes, penalties or fees are owing or exigible under any Subsidiary has a binding commitment to create any additional material Company Pension Plan, and to the knowledge of the Corporation there are no liabilities or contingent liabilities in respect of any Pension Plans that have been discontinued.
(g) There is no proceeding, action, investigation, suit or claim (other than routine claims for payment of benefits) pending or, to the knowledge of the Corporation, threatened involving any Pension Plan or its assets, and to the knowledge of the Corporation no facts exist which could reasonably be expected to give rise to any such proceeding, action, suit or Claim (other than routine claims for benefits).
(h) No event has occurred respecting any Pension Plan which could otherwise reasonably be expected to adversely affect the tax qualified status of any such plan.
(i) The Corporation has not received, or applied for, any payment of surplus or any planpayments as a result of the demutualization of the insurer of any Benefit Plan out of or in respect of any Benefit Plan.
(j) The Corporation has not taken any contribution or premium holidays under any Benefit Plan and there have been no withdrawals or transfers of assets from any Benefit Plan.
(k) All employee data necessary to administer each Benefit Plan is in the possession of the Corporation and is substantially complete, agreement correct and in a form which is sufficient for the proper administration of the Benefit Plan in accordance with its terms and all Laws.
(l) None of the Benefit Plans provide benefits beyond retirement or arrangement that would be a material Company Plan if adoptedother termination of service to Employees or former employees, or to modify or terminate any existing material Company Planthe beneficiaries of such employees, except as required by applicable LawLaws, including but not limited to the Consolidated Omnibus Reconciliation Act of 1985.
(fm) The ESOP is an “employee stock ownership plan” within the meaning of Section 4975(e)(7) None of the Code. Neither Benefit Plans require or permit a retroactive increase in premiums or payments, or require additional payments or premiums on the Company nor termination of any Benefit Plan or insurance contract in respect thereof other than the ESOP hasnormal and reasonable administrative fees associated with the termination of benefit plans, within and the three year period immediately preceding level of insurance reserves, if any, under any insured Benefit Plan, to the date of this Agreement, received any inquiry or notice from the IRS or any other governmental agency the effect of which is to question the qualification or status best of the ESOP or any transaction entered into by the ESOP or the Company (with respect Corporation's knowledge, is reasonable and sufficient to the ESOP). The ESOP and the Company have filed provide for all reports, returns or other documents in respect of the ESOP which are required to be filed pursuant to the applicable provisions of the Code and ERISA and the regulations thereunder. All loans entered into by the ESOP (the “ESOP Loans”) constitute “exempt loans” under Treasury Regulation Section 54.4975-7(b)(1)(iii). The securities held by the ESOP constitute “employer securities” under ERISA Section 407(d)(1) and Section 409(l) of the Code and “qualifying employer securities” under ERISA Section 407(d)(5) and Section 4975(e)(8) of the Codeincurred but unreported claims.
Appears in 1 contract
Sources: Merger Agreement (Workstream Inc)
Benefit Plans. (a) Section 3.13(aSchedule 2.13(a) of the Company Disclosure Letter contains sets forth a true and complete list of each material Company Plan. For purposes of this Agreement, “Company Plan” means each “employee benefit plan,” (within the meaning of as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”)), stock purchaseand each and every written, stock optionunwritten, severance, employment, change-in-control, fringe benefit, bonus, incentive, deferred compensation, employee loan formal or other employee benefit informal plan, agreement, program, policy or other arrangementarrangement involving direct or indirect compensation (other than workers’ compensation, whether or not subject to ERISA (including any funding mechanism therefor now in effect or required in the future as a result of the transactions contemplated by this Agreement or otherwiseunemployment compensation and other government programs), whether written employment, severance, consulting, disability benefits, supplemental unemployment benefits, vacation benefits, retirement benefits, deferred compensation, profit-sharing, bonuses, stock options, stock appreciation rights, other forms of incentive compensation, post-retirement insurance benefits, or unwrittenother benefits, in each case (i) entered into, maintained or contributed to by the Company or any of its Subsidiaries for current or former directors, employees or consultants of with respect to which the Company has or may in the future have any liability (iicontingent or otherwise). Each plan, agreement, program, policy or arrangement required to be set forth on Schedule 2.13(a) under which pursuant to the foregoing is referred to herein as a “Benefit Plan.”
(Ab) any employee, director or consultant or former employee, director or consultant of The Company has delivered the Company or any of its Subsidiaries has any present or future right following documents to benefits and (B) the Company or any of its Subsidiaries has had or has any present or future liability or obligation to contribute. With Buyer with respect to each material Company Benefit Plan: (1) correct and complete copies of all documents embodying such Benefit Plan, the Company has furnished or made available to Parent a currentincluding (without limitation) all amendments thereto, accurate and complete copy thereof, including any amendments, and, to the extent applicable: (i) any all related trust agreement or other funding instrumentdocuments, (ii2) a written description of any Benefit Plan that is not set forth in a written document, (3) the most recent determinationsummary plan description together with the summary or summaries of material modifications thereto, opinion or advisory letter of if any, (4) the three most recent annual actuarial valuations, if any, (5) all Internal Revenue Service (the “IRS”) or Department of Labor (“DOL”) determination, opinion, notification and advisory letters, (6) the three most recent annual reports (Form Series 5500 and all schedules and financial statements attached thereto), if applicableany, (iii7) all material correspondence to or from any summary plan description Governmental or other material written communications by Regulatory Authority received in the Company or its Subsidiaries to their employees concerning the extent of the benefits provided under a Company Plan and last three years, (iv) 8) all discrimination tests for the most recent (A) Form 5500 and attached schedules, (B) audited financial statementsthree plan years, and (C9) actuarial valuation reportsall material written agreements and contracts currently in effect, including (without limitation) administrative service agreements, group annuity contracts, and group insurance contracts.
(bc) Except as disclosed in Section 3.13(b) of the Company Disclosure Letter and except asset forth on Schedule 2.13(c), individually or in the aggregate, has not had, and would not reasonably be expected to have, a Material Adverse Effect on the Company, with respect to the Company Plans:
(1) each Company Benefit Plan has been established maintained and administered in accordance all respects in compliance with its terms and in compliance with the applicable provisions of ERISA, the Code requirements prescribed by any and all other applicable Lawsstatutes, orders, rules and in the six years preceding the date hereof no reportable eventregulations (foreign and domestic), as defined in Section 4043 of ERISA, no prohibited transaction, as described in Section 406 of including (without limitation) ERISA or Section 4975 of and the Code, which are applicable to such Benefit Plans. All contributions, reserves or failure to satisfy the minimum funding standards, within the meaning of Section 302 of ERISA and 412 of the Code, has occurred with respect to any Company Plan, and all contributions premium payments required to be made under or accrued as of the terms of any Company Plan date hereof to the Benefit Plans have been timely made;
(2) each Company made or accrued. Each Benefit Plan intended to be qualified under Section 401(a) of the Code and each trust intended to qualify under Section 501(a) of the Code is so qualified and either: (A1) has received obtained a currently effective favorable determinationdetermination notification, advisory and/or opinion letter, as applicable, as to its qualified status (or the qualified status of the master or prototype form on which it is established) from the IRS that it is so qualifiedcovering the amendments to the Code effected by the Tax Reform Act of 1986 and all subsequent legislation for which the IRS will currently issue such a letter, (B) the trust maintained thereunder and no amendment to such Benefit Plan has been determined to be exempt from taxation under Section 501(a) of the Code and (C) to the Company’s knowledge, nothing has occurred adopted since the date of such letter covering such Benefit Plan that could reasonably would adversely affect such favorable determination; or (2) still has a remaining period of time in which to apply for or receive such letter and to make any amendments necessary to obtain a favorable determination.
(d) No plan currently or ever in the past maintained, sponsored, contributed to or required to be expected contributed to cause by the loss Company, any of such qualified status its Subsidiaries, or any of such Company Plan;
their respective current or former ERISA Affiliates is or ever in the past was (1) a “multiemployer plan” as defined in Section 3(37) of ERISA, (2) a plan described in Section 413 of the Code, (3) there is no Action (including any investigation, audit or other administrative proceeding) by the Department of Labor, the Pension Benefit Guaranty Corporation, the IRS or any other Governmental Entity or by any a plan participant or beneficiary pending, or to the knowledge of the Company, threatened, relating to the Company Plans, any fiduciaries thereof to which the Company could have an indemnification obligation with respect to their duties to the Company Plans or the assets of any of the trusts under any of the Company Plans (other than routine claims for benefits) nor, to the knowledge of the Company, are there facts or circumstances that exist that could reasonably be expect to give rise to any such Actions;
(4) no Company Plan is or, within the preceding six years, has been subject to Title IV of ERISA or ERISA, (4) a plan subject to the minimum funding standards of Section 412 of the Code and neither or Section 302 of ERISA, or (5) a plan maintained in connection with any trust described in Section 501(c)(9) of the Code. The term “ERISA Affiliate” means any Person that, together with the Company nor or any Person that is a member of Company Subsidiary, would be deemed a “controlled group single employer” within the meaning of corporations” with, or is under “common control” with, or is a member of the same “affiliated service group” with the Company, in each case, as defined in Sections Section 414(b), (c), (m) or (o) of the Code, maintains or contributes to (or has in the past six years maintained or contributed to) a multiemployer plan as defined in Section 3(37) of ERISA or a Title IV Plan;
(5) the Company and its Subsidiaries are not subject to any material liability, including additional contributions, fine, penalties or loss of Tax Deductions as a result of the administration or operation of any Company Plan that is a “group health plan” (as such term is defined in Section 5000(b)(1) of the Code);
(6) no Company Plan provides welfare benefits, including death or medical benefits (whether or not insured) beyond retirement or termination of service, other than coverage mandated solely by applicable Law;
(7) none of the Company Plans provides for payment of an amount or provision of a benefit, the increase of a payment or benefit, the payment of a contingent amount or provision of a contingent benefit, or the acceleration of the payment, funding or vesting of an amount or benefit determined or occasioned, in whole or in part, by reason of the execution of this Agreement or the consummation of the transactions contemplated hereby whether alone or together with any other event; and
(8) no amounts payable under the Company Plans will fail to be deductible for federal income tax purposes by virtue of Section 280G of the Code as a result of the occurrence of the transactions contemplated by this Agreement, either alone or in combination with another event.
(c) The Company and its Subsidiaries have not entered into any employment or employment-related agreements (including change in control agreements and offer letters) to which a named individual is a party, other than those set forth on Section 3.13(a) of the Company Disclosure Letter.
(d) Each Company Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A of the Code and related Treasury Department guidance has (i) been operated between January 1, 2005 and December 31, 2008, in good faith compliance with Section 409A of the Code and Notice 2005-01 and (ii) since January 1, 2009 (or such later date permitted under applicable guidance), been operated in compliance, and is in documentary compliance, in all material respects, with the requirements of Section 409A of the Code.
(e) Neither the Company nor any Subsidiary has a binding commitment to create any additional material Company Plan, or any plan, agreement or arrangement that would be a material Company Plan if adopted, or to modify or terminate any existing material Company Plan, except as required by applicable Law.
(f) The ESOP is an “employee stock ownership plan” within the meaning of Section 4975(e)(7) of the Code. Neither the Company nor the ESOP has, within the three year period immediately preceding the date of this Agreement, received any inquiry or notice from the IRS or any other governmental agency the effect of which is to question the qualification or status of the ESOP or any transaction entered into by the ESOP or the Company (with respect to the ESOP). The ESOP and the Company have filed all reports, returns or other documents in respect of the ESOP which are required to be filed pursuant to the applicable provisions of the Code and ERISA and the regulations thereunder. All loans entered into by the ESOP (the “ESOP Loans”) constitute “exempt loans” under Treasury Regulation Section 54.4975-7(b)(1)(iii). The securities held by the ESOP constitute “employer securities” under ERISA Section 407(d)(1) and Section 409(l) of the Code and “qualifying employer securities” under ERISA Section 407(d)(5) and Section 4975(e)(8) of the Code.
Appears in 1 contract
Sources: Interest Purchase Agreement (Shea Development Corp.)
Benefit Plans. (a) Section 3.13(a3.15(a) of the Company Disclosure Letter contains Schedule sets forth a true complete and complete accurate list of each all material Company Plan. For purposes of this Agreement, “Company Plan” means each “employee benefit plan” (within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”)), stock purchase, stock option, severance, employment, change-in-control, fringe benefit, bonus, incentive, deferred compensation, employee loan or other employee benefit plan, agreement, program, policy or other arrangement, whether or not subject to ERISA (including any funding mechanism therefor now in effect or required in the future as a result of the transactions contemplated by this Agreement or otherwise), whether written or unwritten, in each case (i) maintained by the Company or any of its Subsidiaries for current or former directors, employees or consultants plans of the Company or (ii) under which (A) any employee, director or consultant or former employee, director or consultant of the “Company or any of its Subsidiaries has any present or future right to benefits and (B) the Company or any of its Subsidiaries has had or has any present or future liability or obligation to contributeEmployee Plans”). With respect to each material Company Employee Plan maintained or sponsored by a professional employer organization (“PEO Plans”), the representations and warranties in this Section 3.15 are made with respect to the Company’s participation in any PEO Plan as a participating employer. Each PEO Plan is identified as such on Section 3.15(a) of the Company Disclosure Schedule and no representation or warranty is made with respect to any other participating employer in a PEO Plan or as to the PEO Plan as a whole. Other than as required by applicable Law or as otherwise required by this Agreement or in the ordinary course of business, neither the Company nor any ERISA Affiliate of the Company has committed to any officer, or publicly communicated to any other employees to establish any new Company Employee Plan, to modify or amend (except as required by applicable law) any Company Employee Plan or to adopt or enter into any Company Employee Plan.
(b) With respect to each Company Employee Plan, the Company has furnished or made available to Parent a current, complete and accurate and complete copy thereof, including any amendments, and, to the extent applicable: copies of (i) such Company Employee Plan (or a written summary of any unwritten plan) together with all amendments thereto and all related trust agreement or other funding instrumentdocuments, (ii) the most recent determinationsummary plan descriptions, opinion or advisory letter including any summary of the Internal Revenue Service (the “IRS”), if applicablematerial modifications thereto and any material description made available to participants therein, (iii) any summary plan description or other material written communications by the Company or its Subsidiaries to their employees concerning the extent of the benefits provided under a Company Plan and (iv) the most recent (A) Form 5500 and attached schedules, (B) audited financial statements, and (C) actuarial valuation reports.
(b) Except as disclosed in Section 3.13(b) of the Company Disclosure Letter and except as, individually or in the aggregate, has not had, and would not reasonably be expected to have, a Material Adverse Effect on the Company, with respect to the Company Plans:
(1) each Company Plan has been established and administered in accordance with its terms and in compliance with the applicable provisions of ERISA, the Code and all other applicable Laws, and in the six years preceding the date hereof no reportable event, as defined in Section 4043 of ERISA, no prohibited transaction, as described in Section 406 of ERISA or Section 4975 of the Code, or failure to satisfy the minimum funding standards, within the meaning of Section 302 of ERISA and 412 of the Code, has occurred with respect to any Company Plan, and all contributions required to be made under the terms case of any Company Plan have been timely made;
(2) each Company Plan plan that is intended to be qualified under Section 401(a) of the Code Code, the most recent determination, opinion, notification or advisory letter from the IRS, and correspondence between the Internal Revenue Service (“IRS”) or the Department of Labor (“DOL”) on the one hand and the Company on the other hand with respect to such letter, (iv) group annuity contracts, insurance contracts or other funding vehicles, administration and similar material agreements, investment management or investment advisory agreements, (v) in the case of any plan for which Forms 5500 are required to be filed, the most recent annual report (Form 5500) with schedules attached, (vi) the most recent financial statements for such Company Employee Plan, and (vii) all material correspondence to or from any governmental agency relating to any Company Employee Plan within the past year.
(c) Except as would not reasonably be expected to result in a Company Material Adverse Effect, (i) each Company Employee Plan has been established, maintained and administered in accordance with all applicable Law, including if applicable, ERISA and the Code, and in accordance with its terms, and (ii) each of the Company, the Company’s Subsidiaries and their respective ERISA Affiliates have (A) has received a favorable determination, advisory and/or opinion letter, as applicable, from the IRS that it is so qualified, met their obligations with respect to each Company Employee Plan and (B) have timely made or properly accrued on the trust maintained thereunder has been determined financial statements in accordance with GAAP all required contributions or other amounts payable with respect thereto.
(d) All Company Employee Plans that are intended to be exempt from taxation qualified under Section 401(a) of the Code, and all trusts that are intended to be qualified under Section 501(a) of the Code (each, a “Company Qualified Plan”), have (i) received determination, opinion or advisory letters from the IRS to the effect that such Company Employee Plans are qualified and the plans and trusts related thereto are exempt from federal income taxes under Sections 401(a) and 501(a), respectively, of the Code, or the Company has remaining a period of time under applicable U.S. Department of the Treasury regulations or IRS pronouncements in which to apply for such a letter and to make any amendments necessary to obtain a favorable determination as to the qualified status of each such Company Qualified Plan and (Cii) to the Company’s knowledgeno such determination, nothing opinion or advisory letter has occurred since the date of such letter been revoked and no event or circumstance exists that could has materially and adversely affected or would reasonably be expected to cause materially and adversely affect such qualification or exemption. Except as would not reasonably be expected to result in Company Material Adverse Effect, no “prohibited transaction,” within the loss meaning of such qualified status Section 4975 of such the Code or Sections 406 and 407 of ERISA, and not otherwise exempt under Section 408 of ERISA, has occurred with respect to any Company Employee Plan;.
(3e) there is no Action (including Neither the Company, any investigation, audit or other administrative proceeding) by the Department of Labor, the Pension Benefit Guaranty Corporation, the IRS or any other Governmental Entity or by any plan participant or beneficiary pending, or to the knowledge of the Company’s Subsidiaries nor any of their respective ERISA Affiliates has in the preceding six (6) years maintained, threatenedparticipated in or contributed to (or been obligated to contribute to), relating or can reasonably expect to the Company Plans, any fiduciaries thereof to which the Company could have an indemnification obligation future liability with respect to their duties to the Company Plans or the assets of any of the trusts under any of the Company Plans (other than routine claims for benefitsi) nor, to the knowledge of the Company, are there facts or circumstances that exist that could reasonably be expect to give rise to any such Actions;
(4) no Company Plan is or, within the preceding six years, has been a pension plan subject to Title IV of ERISA or subject to Section 412 of the Code and neither the Company nor any Person that is a member of Code; (ii) a “controlled group of corporationsmultiemployer plan” with, or is under “common control” with, or is a member of the same “affiliated service group” with the Company, in each case, (as defined in Sections 414(bSection 4001(a)(3) of ERISA), (c)iii) a “multiple employer plan” as defined in ERISA or the Code, (m) or (oiv) multiple employer welfare arrangement (within the meaning of Section 3(40) of ERISA). No Company Employee Plan is funded by, associated with or related to a “voluntary employees’ beneficiary association” within the meaning of Section 501(c)(9) of the Code. No Company Employee Plan provides health benefits that are not fully insured through an insurance contract.
(f) Each Company Employee Plan (other than the Company Stock Plan or an employment, maintains severance, change in control or contributes similar agreement with an individual) is amendable and terminable unilaterally by the Company and any of the Company’s Subsidiaries party thereto or covered thereby at any time without material liability to the Company or any of its Subsidiaries as a result thereof, other than for benefits accrued as of the date of such amendment or termination and routine administrative costs.
(or has in the past six years maintained or contributed tog) a multiemployer plan Other than as defined in required under Section 3(37) 601 et seq. of ERISA or a Title IV Plan;equivalent state or local law, the Company does not have any material liability in respect of, or material obligation to provide, health or other welfare benefits (excluding normal claims for benefits under the Company’s group life insurance, accidental death and dismemberment insurance and disability plans and policies) or coverage to any person following retirement or other termination of employment (other than continuation coverage through the end of the month in which such termination or retirement occurs).
(5h) There is no action, suit, proceeding, claim, arbitration, audit or investigation pending or, to the Company and its Subsidiaries are not subject Knowledge of the Company, threatened or reasonably anticipated, with respect to any material liability, including additional contributions, fine, penalties Company Employee Plan or loss of Tax Deductions as a result of the administration or operation assets of any Company Employee Plan, other than claims for benefits in the ordinary course.
(i) Except as would not reasonably be expected to result in a Company Material Adverse Effect, each Company Employee Plan that is a “group health plan” (as in material compliance with all applicable Law of each applicable jurisdiction. Each such term Company Employee Plan is defined in funded to the extent required by applicable Law or the applicable terms of such plan or has been accrued for to the extent required by GAAP or other applicable accounting rules. Section 5000(b)(13.15(i) of the Code);Company Disclosure Schedule contains a complete and accurate list of each country in which the Company or any of its Subsidiaries or Affiliates has employees or independent contractors as of December 16, 2022.
(6j) no Section 3.15(j) of the Company Plan provides welfare benefits, including death Disclosure Schedule sets forth a complete and accurate list of (i) all employment agreements with employees of the Company or medical benefits (whether or not insured) beyond retirement or termination any of serviceits Subsidiaries, other than coverage mandated solely (A) standard form offer letters, (B) other similar employment agreements entered into in the ordinary course of business and (C) agreements materially consistent with such standard forms, in the case of (A), (B) and (C) that can be terminated by the Company without notice, liability or obligation; and (ii) all severance agreements, programs and policies of the Company or any of its Subsidiaries with or relating to its Section 16 officers, excluding programs and policies required to be maintained by applicable Law;.
(7k) none Other than as set forth on Section 3.15(k) of the Company Plans provides for payment Disclosure Schedule and Section 2.3 of an amount or provision of a benefitthis Agreement, the increase of a payment negotiation or benefit, the payment of a contingent amount or provision of a contingent benefit, or the acceleration of the payment, funding or vesting of an amount or benefit determined or occasioned, in whole or in part, by reason of the execution of this Agreement or the consummation of the transactions contemplated hereby whether alone or together with any other event; and
(8) no amounts payable under the Company Plans will fail to be deductible for federal income tax purposes by virtue of Section 280G of the Code as a result of the occurrence of the transactions contemplated by this AgreementAgreement will not, either alone or in combination with another event.
, (ci) The Company and its Subsidiaries have not entered into entitle any employment current or employment-related agreements (including change in control agreements and offer letters) to which a named individual is a partyformer employee, other than those set forth on Section 3.13(a) director, consultant or officer of the Company Disclosure Letter.
(d) Each Company Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A or any Subsidiary of the Code and related Treasury Department guidance has (i) been operated between January 1Company to any acceleration, 2005 and December 31increase in acceleration rights, 2008severance, or increase in good faith compliance with Section 409A of the Code and Notice 2005-01 and severance pay, or any other material compensation or benefit, (ii) since January 1accelerate the time of distribution, 2009 payment or vesting (whether or such later date permitted under applicable guidancenot in connection with a non-competition provision), been operated a lapse of repurchase rights or increase the amount of any material compensation or benefits due any such employee, director or officer, (iii) result in compliancethe forgiveness of indebtedness, and or (iv) trigger an obligation to fund benefits. No payment or benefit which will or may be made by the Company or its ERISA Affiliates will, either alone or together with any other event or events, give rise to the payment of any amount that would not be deductible pursuant to Section 280G of the Code. There is in documentary complianceno contract, in all material respectsagreement, plan or arrangement to which the Company or any Subsidiary of the Company is a party or by which it is bound that provides any individual with the requirements of right to a gross-up, indemnification, reimbursement or other payment for any excise or additional taxes, interest or penalties incurred pursuant to Section 409A or Section 4999 of the Code.
(e) Neither the Company nor any Subsidiary has a binding commitment to create any additional material Company Plan, or any plan, agreement or arrangement that would be a material Company Plan if adopted, or to modify or terminate any existing material Company Plan, except as required by applicable Law.
(f) The ESOP is an “employee stock ownership plan” within the meaning of Section 4975(e)(7) of the Code. Neither the Company nor the ESOP has, within the three year period immediately preceding the date of this Agreement, received any inquiry or notice from the IRS or any other governmental agency the effect of which is to question the qualification or status of the ESOP or any transaction entered into by the ESOP or the Company (with respect to the ESOP). The ESOP and the Company have filed all reports, returns or other documents in respect of the ESOP which are required to be filed pursuant to the applicable provisions of the Code and ERISA and the regulations thereunder. All loans entered into by the ESOP (the “ESOP Loans”) constitute “exempt loans” under Treasury Regulation Section 54.4975-7(b)(1)(iii). The securities held by the ESOP constitute “employer securities” under ERISA Section 407(d)(1) and Section 409(l) of the Code and “qualifying employer securities” under ERISA Section 407(d)(5) and Section 4975(e)(8) of the Code.
Appears in 1 contract
Sources: Merger Agreement (Qumu Corp)
Benefit Plans. (ai) Section 3.13(a) of the No Company Disclosure Letter contains a true and complete list of each material Company Plan. For purposes of this Agreementhas ever maintained or contributed ------------- to, “Company Plan” means each “employee or now maintains or contributes to, any "employees pension benefit plan” " (within the meaning of as defined in Section 3(33(2) of the Employee Retirement Income Security Act of 1974, as amended (“"ERISA”") (referred to herein as a "Pension Plan") or "employee welfare benefit plan" (as defined in Section 3(1) of ERISA) (referred to herein as a "Welfare Plan") except such Welfare Plans disclosed on Schedule 4(1)(i)). Schedule 4(l)(i) also discloses any deferred compensation plan, bonus plan, incentive plan, disability or other group insurance plan, stock purchase, stock option, severance, employment, change-in-control, fringe benefit, bonus, incentive, deferred compensationoption plan, employee loan stock purchase plan, vacation plan, severance plan, sick leave plan or policy, holiday plan or policy, maternity leave plan or policy or any other employee benefit plan, agreement, program, policy or other arrangement, whether or not subject to ERISA agreement (including any funding mechanism therefor now in effect employment agreement or required in the future as a result of the transactions contemplated by this Agreement or otherwiseunion contracts), whether written arrangements or unwrittencommitments of any kind, in each case (i) maintained by the any Company , that is not a Pension Plan or any Welfare Plan. Seller has delivered to Buyer true, complete and correct copies of its Subsidiaries for current or former directors, employees or consultants of the Company or (ii) under which (A) each plan disclosed on Schedule 4(l)(i) (a "Company Plan") (or, in the case of any employeeunwritten Company Plans, director or consultant or former employeedescriptions thereof), director or consultant of the Company or any of its Subsidiaries has any present or future right to benefits and (B) the Company or any of its Subsidiaries has had or has any present or future liability or obligation to contribute. With respect to each material Company Plan, the Company has furnished or made available to Parent a current, accurate and complete copy thereof, including any amendments, and, to the extent applicable: (i) any related trust agreement or other funding instrument, (ii) the most recent determination, opinion or advisory letter of annual report on Form 5500 filed with the Internal Revenue Service with respect to each Company Plan (the “IRS”if any such report was required by applicable law), if applicable, (iii) any C)the most recent summary plan description or other material written communications by the Company or its Subsidiaries to their employees concerning the extent of the benefits provided under a for each Company Plan for which a summary plan description is required by applicable law and (iv4) the most recent (A) Form 5500 each trust agreement and attached schedules, (B) audited financial statements, and (C) actuarial valuation reportsinsurance or annuity contract relating to any Company Plan.
(bii) Each Company Plan has been administered in all material respects in accordance with its terms, except as disclosed in Schedule 4(l)(ii). Each Company, its subsidiaries and all Company Plans are in compliance in all material respects with the applicable provisions of ERISA and the Internal Revenue Code of 1986, as amended (the "Code"), except as disclosed in Schedule 4(l)(ii). Except as disclosed in Section 3.13(b) of the Company Disclosure Letter Schedule 4(l)(ii), all reports, returns and except as, individually or in the aggregate, has not had, and would not reasonably be expected to have, a Material Adverse Effect on the Company, similar documents with respect to the Company Plans required to be filed with any governmental agency or distributed to any Company Plan participant have been duly and timely filed or distributed. Except as disclosed in schedule 4(l)(ii), there are no investigations by any governmental agency, termination proceedings or other claims (except claims for benefits payable in the normal operation of the Company Plans:), suits or proceedings against or involving any Company Plan or asserting any rights or claims to benefits under any Company Plan that could give rise to any material liability, and there are not any facts that could give rise to any material liability in the event of any such investigation, claim, suit or proceeding.
(1iii) Schedule 4 (l)(iii) discloses whether each Company Welfare Plan has been established and administered in accordance with its terms and in compliance with the applicable provisions of ERISAis (i) unfunded, the Code and all other applicable Laws, and in the six years preceding the date hereof no reportable event(ii) funded through a "welfare benefit fund", as such term is defined in Section 4043 of ERISA, no prohibited transaction, as described in Section 406 of ERISA or Section 4975 419(e) of the Code, or failure to satisfy the minimum other funding standards, within the meaning of Section 302 of ERISA and 412 of the Code, has occurred with respect mechanism or (iii) insured. Each Welfare Plan (including any Welfare Plan covering retirees or other former employees) may be amended or terminated without material liability to any Company Plan, on or at any time after the Closing Date. The Companies and all contributions required to be made under its subsidiaries comply with the terms applicable requirements of any Company Plan have been timely made;
(2) each Company Plan intended to be qualified under Section 401(a4980B(f) of the Code (A) has received a favorable determination, advisory and/or opinion letter, as applicable, from the IRS that it is so qualified, (B) the trust maintained thereunder has been determined to be exempt from taxation under Section 501(a) of the Code and (C) to the Company’s knowledge, nothing has occurred since the date of such letter that could reasonably be expected to cause the loss of such qualified status of such Company Plan;
(3) there is no Action (including any investigation, audit or other administrative proceeding) by the Department of Labor, the Pension Benefit Guaranty Corporation, the IRS or any other Governmental Entity or by any plan participant or beneficiary pending, or to the knowledge of the Company, threatened, relating to the Company Plans, any fiduciaries thereof to which the Company could have an indemnification obligation with respect to their duties to the Company Plans or the assets of any of the trusts under any of the Company Plans (other than routine claims for benefits) nor, to the knowledge of the Company, are there facts or circumstances that exist that could reasonably be expect to give rise to any such Actions;
(4) no Company Plan is or, within the preceding six years, has been subject to Title IV of ERISA or subject to Section 412 of the Code and neither the Company nor any Person that is a member of a “controlled group of corporations” with, or is under “common control” with, or is a member of the same “affiliated service group” with the Company, in each case, as defined in Sections 414(b), (c), (m) or (o) of the Code, maintains or contributes to (or has in the past six years maintained or contributed to) a multiemployer plan as defined in Section 3(37) of ERISA or a Title IV Plan;
(5) the Company and its Subsidiaries are not subject to any material liability, including additional contributions, fine, penalties or loss of Tax Deductions as a result of the administration or operation of any Company Plan that is a “group health plan” (, as such term is defined in Section 5000(b)(1) of the Code);
(6) no Company Plan provides welfare benefits, including death or medical benefits (whether or not insured) beyond retirement or termination of service, other than coverage mandated solely by applicable Law;
(7) none of the Company Plans provides for payment of an amount or provision of a benefit, the increase of a payment or benefit, the payment of a contingent amount or provision of a contingent benefit, or the acceleration of the payment, funding or vesting of an amount or benefit determined or occasioned, in whole or in part, by reason of the execution of this Agreement or the consummation of the transactions contemplated hereby whether alone or together with any other event; and
(8) no amounts payable under the Company Plans will fail to be deductible for federal income tax purposes by virtue of Section 280G of the Code as a result of the occurrence of the transactions contemplated by this Agreement, either alone or in combination with another event.
(c) The Company and its Subsidiaries have not entered into any employment or employment-related agreements (including change in control agreements and offer letters) to which a named individual is a party, other than those set forth on Section 3.13(a) of the Company Disclosure Letter.
(d) Each Company Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A of the Code and related Treasury Department guidance has (i) been operated between January 1, 2005 and December 31, 2008, in good faith compliance with Section 409A of the Code and Notice 2005-01 and (ii) since January 1, 2009 (or such later date permitted under applicable guidance), been operated in compliance, and is in documentary compliance, in all material respects, with the requirements of Section 409A of the Code.
(e) Neither the Company nor any Subsidiary has a binding commitment to create any additional material Company Plan, or any plan, agreement or arrangement that would be a material Company Plan if adopted, or to modify or terminate any existing material Company Plan, except as required by applicable Law.
(f) The ESOP is an “employee stock ownership plan” within the meaning of Section 4975(e)(7) of the Code. Neither the Company nor the ESOP has, within the three year period immediately preceding the date of this Agreement, received any inquiry or notice from the IRS or any other governmental agency the effect of which is to question the qualification or status of the ESOP or any transaction entered into by the ESOP or the Company (with respect to the ESOP). The ESOP and the Company have filed all reports, returns or other documents in respect of the ESOP which are required to be filed pursuant to the applicable provisions of the Code and ERISA and the regulations thereunder. All loans entered into by the ESOP (the “ESOP Loans”) constitute “exempt loans” under Treasury Regulation Section 54.4975-7(b)(1)(iii). The securities held by the ESOP constitute “employer securities” under ERISA Section 407(d)(1) and Section 409(l) of the Code and “qualifying employer securities” under ERISA Section 407(d)(5) and Section 4975(e)(8) of the Code.
Appears in 1 contract
Sources: Stock Purchase Agreement (Princess Beverly Coal Holding Co Inc)
Benefit Plans. (a) Section 3.13(a) of the Company Seller Disclosure Letter contains sets forth a true and complete list list, as of the Signing Date, of each material Company Plan. For purposes of this Agreement, “Company Plan” means each “employee benefit plan” (within Benefit Plan that is applicable to the meaning of Section 3(3) Business Employees or individual independent contractors of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”)), stock purchase, stock option, severance, employment, change-in-control, fringe benefit, bonus, incentive, deferred compensation, employee loan or other employee benefit plan, agreement, program, policy or other arrangement, whether or not subject to ERISA (including any funding mechanism therefor now in effect or required in the future as a result of the transactions contemplated by this Agreement or otherwise), whether written or unwritten, in Business Group and separately identifies each case (i) maintained by the Company or any of its Subsidiaries for current or former directors, employees or consultants of the Company or (ii) under which (A) any employee, director or consultant or former employee, director or consultant of the Company or any of its Subsidiaries has any present or future right to benefits and (B) the Company or any of its Subsidiaries has had or has any present or future liability or obligation to contributesuch material Benefit Plan that is an Assumed Benefit Plan. With respect to each such material Company Benefit Plan, the Company Seller has furnished or made available to Parent a currentPurchaser complete copies or summaries of such Benefit Plan (or, accurate and complete copy in the case of any unwritten Benefit Plans, written descriptions thereof), including any amendmentsmaterial amendments thereto; provided that, andin the case of any such Benefit Plan that is an agreement to which a Business Employee or individual independent contractor of the Business Group is a party, Seller may instead make available a form or sample of such agreement, and provide copies of any agreements which vary from such forms or samples. With respect to each Assumed Benefit Plan listed in Section 3.13(a) of the extent Seller Disclosure Letter, Seller has made available to Purchaser copies of the following (as applicable: ): (iA) any related trust agreement trust, insurance, annuity or other funding instrumentContract related thereto, (iiB) the most recent determination, opinion financial statement and actuarial or advisory letter of the Internal Revenue Service other valuation report prepared with respect thereto (the “IRS”if any), (C) the two most recent annual reports required to be filed with the applicable Governmental Entity with respect thereto (if applicableany), (iii) any summary plan description or other material written communications by the Company or its Subsidiaries to their employees concerning the extent of the benefits provided under a Company Plan and (ivD) the most recent (A) Form 5500 and attached schedulessummary plan description together with the summary or summaries of all material modifications thereto, (BE) audited financial statementsthe most recent IRS determination or opinion letter, and (CF) actuarial valuation reportsall material correspondence to or from the IRS, the United States Department of Labor, the Pension Benefit Guaranty Corporation or any other Governmental Entity received in the last three years, in each case, except to extent prohibited under applicable data privacy Laws or any other obligations to maintain the confidentiality of such information under applicable Law.
(b) Except as disclosed in Section 3.13(b) of the Company Disclosure Letter and except as, individually or in the aggregate, has not had, and would not reasonably Each Benefit Plan that is intended to be expected to have, a Material Adverse Effect on the Company, with respect to the Company Plans:
(1) each Company Plan has been established and administered in accordance with its terms and in compliance with the applicable provisions of ERISA, the Code and all other applicable Laws, and in the six years preceding the date hereof no reportable event, as defined in Section 4043 of ERISA, no prohibited transaction, as described in Section 406 of ERISA or Section 4975 of the Code, or failure to satisfy the minimum funding standards, qualified within the meaning of Section 302 of ERISA and 412 of the Code, has occurred with respect to any Company Plan, and all contributions required to be made under the terms of any Company Plan have been timely made;
(2) each Company Plan intended to be qualified under Section 401(a) of the Code (A) has received a favorable determinationdetermination letter as to its qualification (or has filed for such a letter before the expiration of the applicable remedial amendment period), advisory and/or opinion letter, as applicable, from the IRS that it and each trust established in connection with any Benefit Plan which is so qualified, (B) the trust maintained thereunder has been determined intended to be exempt from U.S. Federal income taxation under Section 501(a) of the Code and (C) is so exempt and, to the Company’s knowledgeKnowledge of Seller, nothing has occurred since the date of such letter that could reasonably be expected to cause the loss of adversely affect such qualified status of such Company Plan;qualification or exemption.
(3c) there is no Action (including Each Assumed Benefit Plan has been operated in compliance with the terms of the applicable Assumed Benefit Plan, and with all applicable Laws, except, in each case, as have not and would not, individually or in the aggregate, reasonably be expected to result in any investigation, audit or other administrative proceeding) material liability to any Business Group Member. Each Assumed Benefit Plan required to have been approved by the Department of Labor, the Pension Benefit Guaranty Corporation, the IRS or any other a Governmental Entity or by any plan participant or beneficiary pendinghas been so approved, or to the knowledge of the Company, threatened, relating to the Company Plans, any fiduciaries thereof to which the Company could have an indemnification obligation with respect to their duties to the Company Plans or the assets of any of the trusts under any of the Company Plans (other than routine claims for benefits) and no such approval has been revoked nor, to the knowledge Knowledge of Seller, has revocation been threatened, except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. Except as have not and would not, individually or in the aggregate, reasonably be expected to result in any material liability to any Business Group Member, all contributions and benefit payments in relation to any Assumed Benefit Plan that are required to be made by any Business Group Member have been timely made or have been properly accrued as a financial indebtedness of the Company, are there facts or circumstances that exist that could reasonably be expect to give rise to any such Actions;Business Group Member on the Financial Statements.
(4d) no Company No Business Group Member has received any written notice of any, and to the Knowledge of Seller, there are no, investigations by any Governmental Entity with respect to, or other Proceedings (except routine claims for benefits payable in the ordinary course) against or involving, any Assumed Benefit Plan.
(e) (i) No Benefit Plan is or, within the preceding six years, has been subject to covered by Title IV of ERISA has been terminated and no proceedings have been instituted to terminate or appoint a trustee under Title IV of ERISA to administer any such plan; (ii) no Benefit Plan (other than any Multiemployer Plan) subject to Section 412 of the Code and neither or Section 302 of ERISA has failed to satisfy the Company nor minimum funding standard within the meaning of Section 412 of the Code or Section 302 of ERISA, or obtained a waiver of any Person minimum funding standard or an extension of any amortization period under Section 412 of the Code or Section 302 or 304 of ERISA; (iii) no Benefit Plan that is a member single-employer defined benefit pension plan subject to Section 412 of a “controlled group the Code or Section 302 or Title IV of corporations” withERISA is, or is under “common control” withexpected to be, or is a member considered an at-risk plan within the meaning of Section 430 of the same “affiliated service group” Code or Section 303 of ERISA; (iv) neither the Seller nor any of its Affiliates has incurred any unsatisfied withdrawal liability under Title IV of ERISA with respect to any Multiemployer Plan, and the Companyaggregate liabilities of Seller and its Affiliates to all Multiemployer Plans in the event of a complete withdrawal therefrom, as of the close of the most recent fiscal year of each Multiemployer Plan ended prior to the Signing Date, would not reasonably be expected to result in material liability to Purchaser, any Group Company or any of their respective Affiliates, in each case, as defined following the Closing and (v) to the Knowledge of Seller, no Multiemployer Plan (x) is in Sections 414(b“reorganization” (within the meaning of Section 4241 of ERISA); (y) is, or may reasonably be expected to become, “insolvent” (cwithin the meaning of Section 4245 of ERISA), (m) ; or (oz) is in endangered or critical status under Section 432 of the Code or Section 305 of ERISA.
(f) Each Benefit Plan subject to Section 409A of the Code (if any) has at all relevant times been in compliance in all material respects with applicable document requirements of, and has been operated in compliance in all material respects with, Section 409A of the Code and the regulations and other official guidance promulgated thereunder.
(g) No Benefit Plan requires any commitment to reimburse, make-whole, indemnify or otherwise “gross-up” any person for Tax set forth under Section 409A of the Code, maintains or contributes to (or has in the past six years maintained or contributed to) a multiemployer plan as defined in Section 3(37) of ERISA or a Title IV Plan;
(5) the Company and its Subsidiaries are not subject to any material liability, including additional contributions, fine, penalties or loss of Tax Deductions as a result of the administration or operation of any Company Plan that is a “group health plan” (as such term is defined in Section 5000(b)(1) 280G of the Code);, or Section 4999 of the Code (or any similar provision of state, local or foreign law) or any other Tax.
(6h) no Company Plan provides welfare benefits, including death or medical benefits (whether or not insured) beyond retirement or termination of service, other than coverage mandated solely by applicable Law;
(7) none of the Company Plans provides for payment of an amount or provision of a benefit, the increase of a payment or benefit, the payment of a contingent amount or provision of a contingent benefit, or the acceleration of the payment, funding or vesting of an amount or benefit determined or occasioned, in whole or in part, by reason None of the execution and delivery of this Agreement or the consummation of the transactions contemplated hereby whether alone or together with any other event; and
(8) no amounts payable under the Company Plans will fail to be deductible for federal income tax purposes by virtue of Section 280G of the Code Transactions will, except as a result of the occurrence of the transactions expressly contemplated by this AgreementAgreement or as required by applicable Laws, either alone (i) entitle any Business Employee or individual independent contractor of the Business Group to retention, change in control or similar compensation or benefits under any Benefit Plan or cause any Business Employee or individual independent contractor of the Business Group to become eligible for any increase in severance benefits under any Benefit Plan, (ii) accelerate the payment or vesting, or trigger any funding of, compensation or benefits, or increase the amount payable or trigger any other obligation due to, or in respect of, any Business Employee or individual independent contractor of the Business Group, (iii) directly or indirectly cause Seller or Purchaser, or any of their Affiliates to transfer or set aside any assets to fund any material benefits under any Assumed Benefit Plan, (iv) otherwise give rise to any material liability under any Assumed Benefit Plan, (v) limit or restrict the right to merge, materially amend, terminate, or transfer the assets of any Assumed Benefit Plan on or following the Effective Time, or (vi) result in the payment of any amount that could, individually or in combination with another event.
(cany other such payment, constitute an “excess parachute payment” as defined in Section 280G(b)(1) The Company and its Subsidiaries have not entered into any employment or employment-related agreements (including change in control agreements and offer letters) to which a named individual is a party, other than those set forth on Section 3.13(a) of the Company Disclosure Letter.
(d) Each Company Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A of the Code and related Treasury Department guidance has (i) been operated between January 1, 2005 and December 31, 2008, in good faith compliance with Section 409A of the Code and Notice 2005-01 and (ii) since January 1, 2009 (or such later date permitted under applicable guidance), been operated in compliance, and is in documentary compliance, in all material respects, with the requirements of Section 409A of the Code.
(ei) Neither Except as prohibited by applicable Law or a Business Collective Bargaining Agreement, each Assumed Benefit Plan can be amended, terminated or otherwise discontinued after the Effective Time in accordance with its terms, without material liabilities to Purchaser, any Group Company nor any Subsidiary has a binding commitment to create any additional material Company Plan, or any planof their respective Affiliates, agreement or arrangement that would be other than ordinary administration expenses typically incurred in a material Company Plan if adopted, or to modify or terminate any existing material Company Plan, except as required by applicable Lawtermination event.
(f) The ESOP is an “employee stock ownership plan” within the meaning of Section 4975(e)(7) of the Code. Neither the Company nor the ESOP has, within the three year period immediately preceding the date of this Agreement, received any inquiry or notice from the IRS or any other governmental agency the effect of which is to question the qualification or status of the ESOP or any transaction entered into by the ESOP or the Company (with respect to the ESOP). The ESOP and the Company have filed all reports, returns or other documents in respect of the ESOP which are required to be filed pursuant to the applicable provisions of the Code and ERISA and the regulations thereunder. All loans entered into by the ESOP (the “ESOP Loans”) constitute “exempt loans” under Treasury Regulation Section 54.4975-7(b)(1)(iii). The securities held by the ESOP constitute “employer securities” under ERISA Section 407(d)(1) and Section 409(l) of the Code and “qualifying employer securities” under ERISA Section 407(d)(5) and Section 4975(e)(8) of the Code.
Appears in 1 contract
Benefit Plans. (a) Section 3.13(a3.11(a) of the Company Disclosure Letter contains sets forth a true and complete list of each material Company Plan. For purposes of this Agreement, “Company Plan” means each “employee benefit plan” (within the meaning of Section section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”)” ), whether or not subject to ERISA), and each other employee benefit or compensation plan, program, policy, agreement or arrangement, including any stock purchase, stock option, restricted stock, restricted stock unit, phantom stock, severance, employment, offer letter, change-in-control, transaction, retention, welfare, health, dental, vision, retirement, profit-sharing, fringe benefit, bonus, commission, incentive, deferred compensation, employee loan or holiday, paid time off and other employee benefit similar plan, agreement, program, policy or other arrangement, whether or not subject to ERISA arrangement (including any funding mechanism therefor now in effect or required in the future as a result of the transactions contemplated by this Agreement or otherwise), whether written formal or unwritteninformal, written, legally binding or not, in each case (i) which is sponsored, maintained or contributed to by the Company or any of its Subsidiaries for current or former directorsSubsidiaries, employees or consultants of the Company or (ii) under which (A) any employee, director or consultant employee or former employee, director or consultant employee of the Company or any of its Subsidiaries has any present or future right to benefits and benefits, or (Biii) with respect to which the Company or any of its Subsidiaries has had or has any present or future liability or obligation to contributeliability, including any contingent liability. With respect to each material Company Plan, the Company has furnished or made available to Parent a current, accurate and complete copy thereof, including any amendments, thereof and, to the extent applicable: (i) the plan document (or, in the cases of any unwritten Company Plan, a written description thereof), and any amendments thereto; (ii) any related trust agreement agreement, insurance contract or policy or other funding instrument, ; (iiiii) the most recent determination, advisory or opinion or advisory letter of from the Internal Revenue Service (the “IRS”), if applicable, ; (iiiiv) any summary plan description or summary of material modifications thereto, and other material equivalent written communications by the Company or its Subsidiaries to their employees concerning the extent of the benefits provided under a Company Plan and Plan; (ivv) if applicable, for the most recent (A) recently-completed plan year, the Form 5500 5500s and attached schedules, (B) audited schedules and financial statements, and (C) actuarial valuation reports.
(b) Except as disclosed in Section 3.13(b) of the Company Disclosure Letter and except as, individually or in the aggregate, has not had, and would not reasonably be expected to have, a Material Adverse Effect on the Company, with respect to the Company Plans:
(1) each Company Plan has been established and administered in accordance with its terms and in compliance with the applicable provisions of ERISA, the Code and all other applicable Laws, and in the six years preceding the date hereof no reportable event, as defined in Section 4043 of ERISA, no prohibited transaction, as described in Section 406 of ERISA or Section 4975 of the Code, or failure to satisfy the minimum funding standards, within the meaning of Section 302 of ERISA and 412 of the Code, has occurred with respect to any Company Plan, and all contributions required to be made under the terms of any Company Plan have been timely made;
(2) each Company Plan intended to be qualified under Section 401(a) of the Code (A) has received a favorable determination, advisory and/or opinion letter, as applicable, from the IRS that it is so qualified, (B) the trust maintained thereunder has been determined to be exempt from taxation under Section 501(a) of the Code and (C) to the Company’s knowledge, nothing has occurred since the date of such letter that could reasonably be expected to cause the loss of such qualified status of such Company Plan;
(3) there is no Action statements (including any investigationrelated actuarial valuation report); and (vi) any material notices, audit letters or other administrative proceeding) by non-routine correspondence with the Internal Revenue Service, the Department of Labor, the Pension Benefit Guaranty Corporation, the IRS Corporation or any other Governmental Entity or by any plan participant or beneficiary pending, or to the knowledge of the Company, threatened, relating to the Company Plans, any fiduciaries thereof to which the Company could have an indemnification obligation with respect to their duties to the Company Plans or the assets of any of the trusts under any of the Company Plans (other than routine claims for benefits) nor, to the knowledge of the Company, are there facts or circumstances that exist that could reasonably be expect to give rise to any such Actions;
(4) no Company Plan is or, within the preceding six years, has been subject to Title IV of ERISA or subject to Section 412 of the Code and neither the Company nor any Person that is a member of a “controlled group of corporations” with, or is under “common control” with, or is a member of the same “affiliated service group” with the Company, in each case, as defined in Sections 414(b), (c), (m) or (o) of the Code, maintains or contributes to (or has in the past six years maintained or contributed to) a multiemployer plan as defined in Section 3(37) of ERISA or a Title IV Plan;
(5) the Company and its Subsidiaries are not subject to any material liability, including additional contributions, fine, penalties or loss of Tax Deductions as a result of the administration or operation of any Company Plan that is a “group health plan” (as such term is defined in Section 5000(b)(1) of the Code);
(6) no Company Plan provides welfare benefits, including death or medical benefits (whether or not insured) beyond retirement or termination of service, other than coverage mandated solely by applicable Law;
(7) none of the Company Plans provides for payment of an amount or provision of a benefit, the increase of a payment or benefit, the payment of a contingent amount or provision of a contingent benefit, or the acceleration of the payment, funding or vesting of an amount or benefit determined or occasioned, in whole or in part, by reason of the execution of this Agreement or the consummation of the transactions contemplated hereby whether alone or together with any other event; and
(8) no amounts payable under the Company Plans will fail to be deductible for federal income tax purposes by virtue of Section 280G of the Code as a result of the occurrence of the transactions contemplated by this Agreement, either alone or in combination with another eventEntity.
(c) The Company and its Subsidiaries have not entered into any employment or employment-related agreements (including change in control agreements and offer letters) to which a named individual is a party, other than those set forth on Section 3.13(a) of the Company Disclosure Letter.
(d) Each Company Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A of the Code and related Treasury Department guidance has (i) been operated between January 1, 2005 and December 31, 2008, in good faith compliance with Section 409A of the Code and Notice 2005-01 and (ii) since January 1, 2009 (or such later date permitted under applicable guidance), been operated in compliance, and is in documentary compliance, in all material respects, with the requirements of Section 409A of the Code.
(e) Neither the Company nor any Subsidiary has a binding commitment to create any additional material Company Plan, or any plan, agreement or arrangement that would be a material Company Plan if adopted, or to modify or terminate any existing material Company Plan, except as required by applicable Law.
(f) The ESOP is an “employee stock ownership plan” within the meaning of Section 4975(e)(7) of the Code. Neither the Company nor the ESOP has, within the three year period immediately preceding the date of this Agreement, received any inquiry or notice from the IRS or any other governmental agency the effect of which is to question the qualification or status of the ESOP or any transaction entered into by the ESOP or the Company (with respect to the ESOP). The ESOP and the Company have filed all reports, returns or other documents in respect of the ESOP which are required to be filed pursuant to the applicable provisions of the Code and ERISA and the regulations thereunder. All loans entered into by the ESOP (the “ESOP Loans”) constitute “exempt loans” under Treasury Regulation Section 54.4975-7(b)(1)(iii). The securities held by the ESOP constitute “employer securities” under ERISA Section 407(d)(1) and Section 409(l) of the Code and “qualifying employer securities” under ERISA Section 407(d)(5) and Section 4975(e)(8) of the Code.
Appears in 1 contract
Benefit Plans. (a) Section 3.13(a3.13(a)(i) of the Company Disclosure Letter contains sets forth a true and complete list of each material Company Plan. For purposes of this Agreement, “Company Plan” means each “employee benefit plan” (within the meaning of Section 3(3) Employee Benefit Plan as of the Employee Retirement Income Security Act of 1974Agreement Date. The Acquired Corporations have not made any plan or commitment, as amended (“ERISA”)), stock purchase, stock option, severance, employment, change-in-control, fringe benefit, bonus, incentive, deferred compensation, employee loan which plan or other employee benefit plan, agreement, program, policy or other arrangement, whether or not subject to ERISA (including commitment is binding on any funding mechanism therefor now in effect or required in the future as a result of the transactions contemplated Acquired Corporations, to establish any new Employee Benefit Plan or to modify any Employee Benefit Plan in any material respect (except as required by this Agreement Law or otherwise), whether written or unwrittento conform any such Employee Benefit Plan to the requirements of any applicable Law, in each case (ias previously disclosed to Parent or Purchaser in writing, or as required by this Agreement). Except as provided in Section 3.13(a)(ii) maintained of the Company Disclosure Letter, unless otherwise provided in any Employee Benefit Plan, no binding contractual commitments, undertakings or representations have been made or given to any current or former employees, directors, independent contractors, consultants or other persons engaged by the Company regarding the continued operation, extension, material amendment or replacement of, or grants of awards or benefits under, any of its Subsidiaries for current or former directors, employees or consultants Employee Benefit Plan.
(b) As of the Company or (ii) under which (A) any employee, director or consultant or former employee, director or consultant of the Company or any of its Subsidiaries has any present or future right to benefits and (B) the Company or any of its Subsidiaries has had or has any present or future liability or obligation to contribute. With respect to each material Company PlanAgreement Date, the Company has furnished or made available Made Available with respect to Parent a current, accurate and complete copy thereof, including any amendments, andeach Employee Benefit Plan, to the extent applicable: , (i) correct and complete copies of all plan documents embodying each Employee Benefit Plan, including all amendments thereto and any related trust agreement or other funding instrumentdocuments, (ii) if the Employee Benefit Plan is funded, the most recent determinationannual and periodic accounting of its assets, (iii) all written agreements and group contracts relating to each Employee Benefit Plan, including administrative service agreements and group or individual insurance contracts, (iv) all correspondence received or sent by the Company within the last three years to or from any Governmental Entity relating to any Employee Benefit Plan, (v) all policies pertaining to fiduciary liability insurance covering the fiduciaries for each Employee Benefit Plan, (vi) any summary plan description, (vii) nondiscrimination and similar testing reports with respect to the two most recent plan years, and (viii) any tax rulings, approvals, registrations or determinations issued by any Governmental Entity with respect to each Employee Benefit Plan, including any determination or opinion or advisory letter of from the Internal Revenue Service with respect to an Employee Benefit Plan intended to qualify under Section 401(a) of the Code.
(c) Each Employee Benefit Plan complies in all material respects with applicable Law and has been maintained and operated in material compliance with the “IRS”)terms of such Employee Benefit Plan and applicable Law. As of the Agreement Date, if applicablethere are no actions, suits or claims pending or, to the Knowledge of the Company, threatened (iiiother than routine claims for benefits) against any summary Employee Benefit Plan, the assets of any Employee Benefit Plan, or the plan description sponsor, plan administrator or, to the Knowledge of the Company, any fiduciary of any Employee Benefit Plan relating to any Employee Benefit Plan, or other material written communications which is otherwise expected by the Company to be initiated (other than routine claims for benefits). Each Employee Benefit Plan may be amended, terminated or its Subsidiaries to their employees concerning otherwise discontinued after the extent of the benefits provided under a Company Plan and (iv) the most recent (A) Form 5500 and attached schedules, (B) audited financial statements, and (C) actuarial valuation reports.
(b) Except as disclosed in Section 3.13(b) of the Company Disclosure Letter and except as, individually or in the aggregate, has not had, and would not reasonably be expected to have, a Material Adverse Effect on the Company, with respect to the Company Plans:
(1) each Company Plan has been established and administered Offer Acceptance Time in accordance with its terms and in compliance with the applicable provisions of ERISAterms, without material liability to Parent, Purchaser, the Code and all Company, or any of their respective Subsidiaries or Affiliates (other than ordinary administration expenses or with respect to benefits, other than bonuses, commissions or amounts under other compensation plans, that were previously earned, vested or accrued under Employee Benefit Plans prior to the Offer Acceptance Time or amounts owed under any Employee Benefit Plan), except as may be required by applicable Laws, and in the six years preceding the date hereof no reportable event, as defined in Section 4043 of ERISA, no prohibited transaction, as described in Section 406 of ERISA or Section 4975 Law. As of the CodeAgreement Date, there are no audits, inquiries or proceedings pending or, to the Knowledge of the Company, threatened by any applicable Governmental Entity, or failure which is otherwise expected by the Company to satisfy the minimum funding standards, within the meaning of Section 302 of ERISA and 412 of the Code, has occurred be initiated by any applicable Governmental Entity with respect to any Company Employee Benefit Plan, and all contributions required to be made under the terms of any Company Plan have been timely made;.
(2d) each Company Each Employee Benefit Plan intended to be qualified qualify under Section 401(a) of the Code (A) has received a favorable determinationbeen determined by the Internal Revenue Service to so qualify, advisory and/or opinion letter, as applicable, from and the IRS that it is so qualified, (B) the trust maintained trusts created thereunder has have been determined to be exempt from taxation under Section 501(a) of the Code and (C) to the Company’s knowledge, nothing Code. Nothing has occurred since the date of such letter determination that could reasonably be expected to cause the loss of such qualified status of such Company Plan;qualification or exemption.
(3e) there is no Action With respect to each Employee Benefit Plan, all contributions (including all employer contributions and employee salary reduction contributions), distributions, reimbursements and premium payments that are due by the Acquired Corporations have been timely made and all contributions, distributions, reimbursements and premium payments for any investigationperiod ending on or before the Closing Date that are not yet due by the Acquired Corporations have been made or properly accrued. No Employee Benefit Plan provides post-termination or retiree life insurance, audit health or other administrative proceedingpost-termination or retiree employee welfare benefits to any person for any reason, except (i) as required by the Department of Laborapplicable Law, the Pension Benefit Guaranty Corporation, the IRS including COBRA (or any other Governmental Entity or by any plan participant or beneficiary pendingsimilar state law), or to the knowledge of the Company, threatened, relating to the Company Plans, any fiduciaries thereof to which the Company could have an indemnification obligation with respect to their duties to the Company Plans or the assets of (ii) benefits under insured plans maintained by any of the trusts under Acquired Corporations providing such benefits in the event an employee is disabled at the time of termination of the employee’s employment with any of the Company Plans (other than routine claims for benefits) nor, to Acquired Corporations and the knowledge of the Company, are there facts or circumstances that exist that could reasonably be expect to give rise to any conversion privileges provided under such Actions;insured plans.
(4f) no Company Plan is orNeither the Acquired Corporations nor any ERISA Affiliate has ever maintained or contributed to, within the preceding six yearsor has any liability under or with respect to, has been any “defined benefit plan” as defined in Section 3(35) of ERISA, any plan subject to Title IV of ERISA or subject to Section 412 of the Code and neither the Company nor or any Person that is a member of a “controlled group of corporationsmultiemployer” with, or is under “common control” with, or is a member of the same “affiliated service group” with the Company, in each case, as defined in Sections 414(b), (c), (m) or (o) of the Code, maintains or contributes to (or has in the past six years maintained or contributed to) a multiemployer plan as defined in Section 3(37) of ERISA or a Title IV Plan;ERISA.
(5g) the Company and its Subsidiaries are not subject to any material liability, including additional contributions, fine, penalties or loss of Tax Deductions as a result of the administration or operation of any Company Any Employee Benefit Plan that is a “group health plan” plan (as such term is defined in within the meaning of Section 5000(b)(14980B(g)(2) of the Code);): (i) materially complies with all of the applicable material requirements of COBRA, the Family and Medical Leave Act of 1993, HIPAA, the Women’s Health and Cancer Rights Act of 1996, the Newborns’ and Mothers’ Health Protection Act of 1996, the Patient Protection and Affordable Care Act and any similar provisions of state law applicable to employees of the Acquired Corporations or any ERISA Affiliate; and (ii) is insured through an insurance contract.
(6h) no Company Plan provides welfare benefits, including death or medical benefits (whether or not insured) beyond retirement or termination of service, other than coverage mandated solely Unless otherwise contemplated by applicable Law;
(7) none of the Company Plans provides for payment of an amount or provision of a benefit, the increase of a payment or benefit, the payment of a contingent amount or provision of a contingent benefit, or the acceleration of the payment, funding or vesting of an amount or benefit determined or occasioned, in whole or in part, by reason of the execution of this Agreement or the consummation of the transactions contemplated hereby whether alone or together with any other event; and
(8) no amounts payable under the Company Plans will fail to be deductible for federal income tax purposes by virtue of Section 280G of the Code as a result of the occurrence of the transactions contemplated by this Agreement, either alone or in combination with another event.
(c) The Company and its Subsidiaries have not entered into any employment or employment-related agreements (including change in control agreements and offer letters) to which a named individual is a party, other than those otherwise set forth on in Section 3.13(a3.13(h) of the Company Disclosure Letter.
(d) Each Company Plan that is a “nonqualified deferred compensation plan” within , neither the meaning execution or delivery of Section 409A this Agreement nor the consummation of the Code and related Treasury Department guidance has Transactions will (either alone or upon the occurrence of any additional or subsequent event) (i) been operated between January 1result in any material payment (including severance, 2005 and December 31bonus or otherwise) or benefit becoming due or payable, 2008or required to be provided, in good faith compliance with Section 409A to any current or former employee, director, independent contractor or consultant of the Code and Notice 2005-01 and Acquired Corporations, (ii) since January 1result in any forgiveness of material Indebtedness, 2009 (iii) materially increase the amount or such later date permitted value of any benefit or compensation otherwise payable or required to be provided to any current or former employee, director, independent contractor or consultant of the Acquired Corporations, (iv) result in the acceleration or change of the time of payment, vesting or funding of any material benefit or material compensation, or (v) result in any material interest, fines, penalties, taxes or related charges under applicable guidance), been operated in compliance, and is in documentary compliance, in all material respects, with the requirements of Section 409A of the Code.
(ei) Neither Except as set forth in Section 3.13(i) of the Company nor any Subsidiary has a binding commitment to create any additional material Company PlanDisclosure Letter, or any planthere is no contract, agreement plan or arrangement covering any employee or service provider of the Company that, individually or collectively, could reasonably be expected to give rise to a payment that would not be a material Company Plan if adopted, or to modify or terminate any existing material Company Plan, except as required deductible by applicable Law.
(f) The ESOP is an “employee stock ownership plan” within the meaning reason of Section 4975(e)(7) 280G of the Code. Neither No person is entitled to any payment of any tax “gross-up” or similar “make-whole” payments from the Acquired Corporations, including as a result of excise taxes which could become payable under Section 280G, Section 4999 or Section 409A of the Code.
(j) Except as set forth in Section 3.13(j) of the Company nor Disclosure Letter, the ESOP has, within the three year period immediately preceding the date Acquired Corporations have never maintained or contributed to any “nonqualified deferred compensation plan” (as defined for purposes of this Agreement, received any inquiry or notice from the IRS or any other governmental agency the effect of which is to question the qualification or status Section 409A of the ESOP or any transaction entered into by the ESOP or the Company (with respect to the ESOPCode). The ESOP Each Employee Benefit Plan is either exempt from Section 409A of the Code or has been administered in compliance in all material respects with its terms and the Company have filed all reports, returns or other documents in respect operational and documentary requirements of the ESOP which are required to be filed pursuant to the applicable provisions Section 409A of the Code and ERISA and the regulations thereunder. All loans entered into by .
(k) No Employee Benefit Plan is subject to the ESOP (the “ESOP Loans”) constitute “exempt loans” under Treasury Regulation Section 54.4975-7(b)(1)(iii). The securities held by the ESOP constitute “employer securities” under ERISA Section 407(d)(1) and Section 409(l) laws of a jurisdiction outside of the Code and “qualifying employer securities” under ERISA Section 407(d)(5) and Section 4975(e)(8) of the CodeUnited States.
Appears in 1 contract
Sources: Merger Agreement (Viela Bio, Inc.)
Benefit Plans. (a) Section 3.13(a) of the Company Disclosure Letter contains a true and complete list of each material Company Plan. For purposes of this Agreement, “Company Plan” means each All “employee benefit planplans” (within the meaning of Section section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”)), ) and all stock purchase, stock option, severance, employment, change-in-control, fringe benefit, bonus, incentive, deferred compensation, employee loan or loan, and all other employee benefit planplans, agreementagreements, programprograms, policy policies or other arrangementarrangements, and whether or not subject to ERISA (including any funding mechanism therefor now in effect or required in the future as a result of the transactions contemplated by this Agreement or otherwise)ERISA, whether written or unwritten, in each case (i) maintained by the Company or any of its Subsidiaries for current or former directors, employees or consultants of the Company or (ii) under which (A) any employee, director or consultant or former employee, director director, officer, independent contractor or consultant of the Company or any of its Subsidiaries has any present or future right to benefits and (B) or under which the Company or any of its Subsidiaries has had or has any present or future liability or obligation are referred to contribute. herein as the “Company Plans.” Each material Company Plan is identified on Section 3.11(a) of the Company Disclosure Letter.
(b) With respect to each material Company Plan, the Company has furnished or made available to Parent Purchaser a current, accurate and complete copy thereof, including any amendments, thereof and, to the extent applicable: (i) any related trust agreement or other funding instrument, (ii) the most recent determination, determination or opinion or advisory letter of the Internal Revenue Service (the “IRS”), if applicable, (iii) any the most recent summary plan description or description, (iv) any other material written communications (or a description of any oral communications) by the Company or its Subsidiaries to their employees of the Company or its Subsidiaries, including concerning the extent of the any post-retirement medical or life insurance benefits provided under a Company Plan Plan, and (ivv) for the most recent year (A) the Form 5500 and attached schedules, (B) audited financial statements, statements and (C) actuarial valuation reports.
(bc) Except as disclosed in Section 3.13(b) With respect to each Company Plan, except to the extent that the inaccuracy of any of the Company Disclosure Letter and except asrepresentations set forth in this Section 3.11, individually or in the aggregate, has have not had, and would not reasonably be expected to have, had a Company Material Adverse Effect on the Company, with respect to the Company PlansEffect:
(1i) each Company 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 all other applicable Laws, and in the six years preceding the date hereof no reportable event, as defined in Section 4043 of ERISA, no prohibited transaction, as described in Section 406 of ERISA or Section 4975 of the Code, or failure to satisfy the minimum funding standards, within the meaning of Section 302 of ERISA and 412 of the Code, has occurred with respect to any Company PlanLaw, and all contributions required to be made under the terms of any Company Plan have been timely made;
(2ii) each Company Plan intended to be qualified under Section 401(a) of the Code (A) has received a favorable determination, advisory and/or opinion letter, as applicable, from the IRS that it is so qualifiedqualified and, (B) the trust maintained thereunder has been determined to be exempt from taxation under Section 501(a) of the Code and (C) to the Knowledge of Company’s knowledge, nothing has occurred occurred, whether by action or failure to act, since the date of such letter that could would reasonably be expected to cause the loss of such qualified status of such Company Plan;
(3iii) there is no Action (including any investigation, audit or other administrative proceeding) by the Department of Labor, the Pension Benefit Guaranty CorporationCorporation (the “PBGC”), the IRS or any other Governmental Entity or by any plan participant or beneficiary pendingpending or, or to the knowledge Knowledge of the Company, threatened, threatened relating to the Company Plans, any fiduciaries thereof to which the Company could have an indemnification obligation with respect to their duties to the Company Plans or the assets of any of the trusts under any of the Company Plans (other than routine claims for benefits) nor, to the knowledge of the Company, nor are there facts or circumstances that exist that could reasonably be expect to give rise to any such Actions;.
(4d) no No Company Plan is or, within the preceding six years, has been subject to Title IV of ERISA or subject is a multiemployer plan under Subtitle E of Title IV of ERISA.
(e) Each Company Plan pursuant to which the Company or any of its Subsidiaries could incur any current or projected liability in respect of post-employment or post-retirement health, medical, or life insurance benefits for current, former, or retired employees of the Company or any of its Subsidiaries (except as required to avoid an excise tax under Section 412 4980B of the Code or otherwise except as may be required by applicable Law) (“Retiree Medical Benefits”) is identified in Section 3.11(d) of the Company Disclosure Letter, and (ii) the provisions of each Company Plan so identified which provide Retiree Medical Benefits may be terminated at any time by the Company or its Subsidiaries without liability to the Company or its Subsidiaries.
(f) Except as set forth on Schedule 3.11(f) of the Company Disclosure Letter (and with respect to Company Stock Options and Company Warrants as contemplated in this Agreement), neither the Company nor any Person that of its Subsidiaries is a member of a “controlled group of corporations” withparty to any Contract that will, directly or is under “common control” within combination with other events, result, separately or is a member of in the same “affiliated service group” with the Companyaggregate, in each casethe payment, as defined in Sections 414(b), (c), (m) acceleration or (o) enhancement of the Code, maintains or contributes to (or has in the past six years maintained or contributed to) a multiemployer plan as defined in Section 3(37) of ERISA or a Title IV Plan;
(5) the Company and its Subsidiaries are not subject to any material liability, including additional contributions, fine, penalties or loss of Tax Deductions benefit as a result of the administration or operation of any Company Plan that is a “group health plan” (as such term is defined in Section 5000(b)(1) of the Code);
(6) no Company Plan provides welfare benefits, including death or medical benefits (whether or not insured) beyond retirement or termination of service, other than coverage mandated solely by applicable Law;
(7) none of the Company Plans provides for payment of an amount or provision of a benefit, the increase of a payment or benefit, the payment of a contingent amount or provision of a contingent benefit, or the acceleration of the payment, funding or vesting of an amount or benefit determined or occasioned, in whole or in part, by reason of the execution of this Agreement or the consummation of the transactions contemplated hereby whether alone or together with any other event; and
(8) no amounts payable under the Company Plans will fail to be deductible for federal income tax purposes by virtue of Section 280G of the Code as a result of the occurrence of the transactions contemplated by this Agreement, either alone or in combination with another event.
(c) The and neither the execution of this Agreement, Company and its Subsidiaries have not entered into any employment or employment-related agreements (including change in control agreements and offer letters) to which a named individual is a party, other than those set forth on Section 3.13(a) shareholder approval of this Agreement nor the consummation of the Company Disclosure Letter.
transactions contemplated hereby will (dA) Each Company Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A of the Code and related Treasury Department guidance has (i) been operated between January 1, 2005 and December 31, 2008, result in good faith compliance with Section 409A of the Code and Notice 2005-01 and (ii) since January 1, 2009 (or such later date permitted under applicable guidance), been operated in compliance, and is in documentary compliance, in all material respects, with the requirements of Section 409A of the Code.
(e) Neither the Company nor any Subsidiary has a binding commitment to create any additional material Company Plan, severance pay or any plan, agreement or arrangement that would be a material Company Plan if adopted, or to modify or terminate increase in severance pay upon any existing material Company Plan, except as required by applicable Law.
(f) The ESOP is an “employee stock ownership plan” within the meaning termination of Section 4975(e)(7) of the Code. Neither the Company nor the ESOP has, within the three year period immediately preceding employment after the date of this Agreement, received (B) accelerate the time of payment or vesting or result in any inquiry payment or notice from funding (through a grantor trust or otherwise) of compensation or benefits under, increase the IRS amount payable or result in any other governmental agency the effect of which is to question the qualification or status material obligation to, any of the ESOP Company Plans, (C) limit or any transaction entered into by restrict the ESOP or right of the Company to merge, amend, or terminate any of the Company Plans, (D) cause the Company to record additional compensation expense on its income statement with respect to the ESOP). The ESOP and the Company have filed all reports, returns any outstanding stock option or other documents equity-based award, or (E) result in respect the payment of the ESOP payments which are required to would not be filed pursuant to the applicable provisions of the Code and ERISA and the regulations thereunder. All loans entered into by the ESOP (the “ESOP Loans”) constitute “exempt loans” deductible under Treasury Regulation Section 54.4975-7(b)(1)(iii). The securities held by the ESOP constitute “employer securities” under ERISA Section 407(d)(1) and Section 409(l) of the Code and “qualifying employer securities” under ERISA Section 407(d)(5) and Section 4975(e)(8) 280G of the Code.
Appears in 1 contract
Sources: Merger Agreement (Iberiabank Corp)
Benefit Plans. (a) Section 3.13(a) All Benefit Plans of the Company Disclosure Letter contains a true and complete list of each material Company Plan. For purposes of this Agreement, “Company Plan” means each “employee benefit plan” (within the meaning of are listed in ------------- Section 3(3) 2.12 of the Employee Retirement Income Security Act Disclosure Schedule, and copies of 1974, as amended (“ERISA”)), stock purchase, stock option, severance, employment, change-in-control, fringe benefit, bonus, incentive, deferred compensation, employee loan or other employee benefit plan, agreement, program, policy or other arrangement, whether or not subject all documentation --------------------------------------- relating to ERISA such Benefit Plans (including any funding mechanism therefor now in effect or required in the future as a result all plan documents, written descriptions of the transactions contemplated by this Agreement or otherwise)plans, whether written or unwritten, in each case (i) maintained by the Company or any of its Subsidiaries for current or former directors, employees or consultants of the Company or (ii) under which (A) any employee, director or consultant or former employee, director or consultant of the Company or any of its Subsidiaries has any present or future right to benefits actuarial reports and (B) the Company or any of its Subsidiaries has had or has any present or future liability or obligation to contribute. With governmental filings and determinations with respect to each material Company Plan, the Company has furnished such Benefit Plans) have been delivered or made available to Parent a current, accurate and complete copy thereof, including any amendments, and, to the extent applicable: (i) any related trust agreement or other funding instrument, (ii) the most recent determination, opinion or advisory letter Investors. None of the Internal Revenue Service (the “IRS”), if applicable, (iii) any summary plan description or other material written communications by the Company or its Subsidiaries to their employees concerning the extent of the benefits provided under a Company Plan and (iv) the most recent (A) Form 5500 and attached schedules, (B) audited financial statements, and (C) actuarial valuation reports.
(b) Except as disclosed in Section 3.13(b) of the Company Disclosure Letter and except as, individually or in the aggregate, has not had, and would not reasonably be expected to have, a Material Adverse Effect on the Company, with respect to the Company Benefit Plans are Defined Benefit Plans:
(1a) each Company Benefit Plan has at all times been established maintained and administered in all material respects in accordance with its terms and in compliance with the requirements of all applicable provisions of ERISAlaw, the Code including, without limitation, ERISA and all other applicable Laws, and in the six years preceding the date hereof no reportable event, as defined in Section 4043 of ERISA, no prohibited transaction, as described in Section 406 of ERISA or Section 4975 of the Code, or failure to satisfy the minimum funding standards, within the meaning of Section 302 of ERISA and 412 of the Code, has occurred with respect to any Company Plan, and all contributions required to be made under the terms of any Company Plan have been timely made;
(2) each Company Benefit Plan intended to be qualified qualify under Section 401(a) of the Code (A) has received a favorable determination, advisory and/or opinion letter, as applicable, from the IRS that it is at all times since its adoption been so qualified, (B) the and each trust maintained thereunder which forms a part of any such plan has at all times since its adoption been determined to be tax- exempt from taxation under Section 501(a) of the Code and (C) to the Company’s knowledge, nothing has occurred since the date of such letter that could reasonably be expected to cause the loss of such qualified status of such Company PlanCode;
(3b) there is no Action (including neither the Company nor any investigation, audit or other administrative proceeding) by the Department of Labor, the Pension Benefit Guaranty Corporation, the IRS or ERISA Affiliate has incurred any other Governmental Entity or by liability for any plan participant or beneficiary pending, or to the knowledge tax imposed under Chapter 43 of the CompanyCode or civil liability under Section 502(i) or (l) of ERISA;
(c) no benefit under any Benefit Plan, threatenedincluding, relating to the Company Planswithout limitation, any fiduciaries thereof to which severance or parachute payment plan or agreement, will be established or become accelerated, vested or payable by reason of any transaction contemplated under this Agreement;
(d) no tax has been incurred under Section 511 of the Company could have an indemnification obligation Code with respect to their duties to any Benefit Plan (or trust or other funding vehicle pursuant thereto);
(e) no Benefit Plan provides health or death benefit coverage beyond the Company Plans termination of an employee's employment, except as required by Part 6 of Subtitle B of Title I of ERISA or Section 4980B of the Code or the assets laws of any other jurisdiction requiring continuation of the trusts under any benefits coverage following termination of the Company Plans employment;
(f) no suit, actions or other than routine litigation (excluding claims for benefitsbenefits incurred in the ordinary course) norhave been brought or, to the knowledge of the Company, threatened against or with respect to any Benefit Plan and there are there no facts or circumstances that exist known to the Company that could reasonably be expect expected to give rise to any such Actions;
(4) no Company Plan is orsuit, within the preceding six years, has been subject to Title IV of ERISA action or subject to Section 412 of the Code and neither the Company nor any Person that is a member of a “controlled group of corporations” with, or is under “common control” with, or is a member of the same “affiliated service group” with the Company, in each case, as defined in Sections 414(b), (c), (m) or (o) of the Code, maintains or contributes to (or has in the past six years maintained or contributed to) a multiemployer plan as defined in Section 3(37) of ERISA or a Title IV Plan;
(5) the Company and its Subsidiaries are not subject to any material liability, including additional contributions, fine, penalties or loss of Tax Deductions as a result of the administration or operation of any Company Plan that is a “group health plan” (as such term is defined in Section 5000(b)(1) of the Code);
(6) no Company Plan provides welfare benefits, including death or medical benefits (whether or not insured) beyond retirement or termination of service, other than coverage mandated solely by applicable Law;
(7) none of the Company Plans provides for payment of an amount or provision of a benefit, the increase of a payment or benefit, the payment of a contingent amount or provision of a contingent benefit, or the acceleration of the payment, funding or vesting of an amount or benefit determined or occasioned, in whole or in part, by reason of the execution of this Agreement or the consummation of the transactions contemplated hereby whether alone or together with any other eventlitigation; and
(8) no amounts payable under the Company g) all contributions to Benefit Plans will fail that were required to be deductible for federal income tax purposes by virtue made under such Benefit Plans have been made, and all benefits accrued under any unfunded Benefit Plan have been paid, accrued or otherwise adequately reserved in accordance with GAAP, all of which accruals under unfunded Benefit Plans are as disclosed in Section 280G of the Code as a result of the occurrence of the transactions contemplated by this Agreement, either alone or in combination with another event.
(c) The Company and its Subsidiaries have not entered into any employment or employment-related agreements (including change in control agreements and offer letters) to which a named individual is a party, other than those set forth on Section 3.13(a2.12(g) of the Company Disclosure Letter.
(d) Each Company Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A of the Code and related Treasury Department guidance has (i) been operated between January 1Schedule, 2005 and December 31, 2008, in good faith compliance with Section 409A of the Code and Notice 2005-01 and (ii) since January 1, 2009 (or such later date permitted under applicable guidance), been operated in compliance, and is in documentary compliance, in all material respects, with the requirements of Section 409A of the Code.
(e) Neither the Company nor any Subsidiary has a binding commitment to create any additional material Company Plan, or any plan, agreement or arrangement that would be a material Company Plan if adopted, or to modify or terminate any existing material Company Plan, except as required by applicable Law.
(f) The ESOP is an “employee stock ownership plan” within the meaning of Section 4975(e)(7) of the Code. Neither the Company nor the ESOP has, within the three year period immediately preceding the date of this Agreement, received any inquiry or notice from the IRS or any other governmental agency the effect of which is to question the qualification or status of the ESOP or any transaction entered into by the ESOP or the Company (with respect to the ESOP). The ESOP and the Company have filed has performed all reports, returns or other documents in respect of the ESOP which are material obligations required to be filed pursuant to the applicable provisions of the Code and ERISA and the regulations thereunder. All loans entered into by the ESOP (the “ESOP Loans”) constitute “exempt loans” performed under Treasury Regulation Section 54.4975-7(b)(1)(iii). The securities held by the ESOP constitute “employer securities” under ERISA Section 407(d)(1) and Section 409(l) of the Code and “qualifying employer securities” under ERISA Section 407(d)(5) and Section 4975(e)(8) of the Codeall Benefit Plans.
Appears in 1 contract
Benefit Plans. (a) The Disclosure Schedule identifies each Pension Plan, including without limitation any such plan that is excluded from coverage by Section 3.13(a) 4 of the Company Disclosure Letter contains ERISA or is a true and complete list of each material Company "Multiemployer Plan. For purposes of this Agreement, “Company Plan” means each “employee benefit plan” (" within the meaning of Section 3(33(37) or 4001(a)(3) of the Employee Retirement Income Security Act of 1974ERISA, as amended (“ERISA”)), stock purchase, stock option, severance, employment, change-in-control, fringe benefit, bonus, incentive, deferred compensation, employee loan or other employee benefit plan, agreement, program, policy or other arrangement, whether or not subject to ERISA (including any funding mechanism therefor now in effect or required in the future as a result of the transactions contemplated by this Agreement or otherwise), whether written or unwritten, in each case (i) maintained by that the Company or any of its Subsidiaries for current or former directorsother ERISA Affiliate sponsors, employees or consultants of the Company or (ii) under which (A) any employeemaintains, director or consultant or former employeecontributes to, director or consultant of the Company or any of its Subsidiaries has any present or future right is required to benefits and (B) the Company or any of its Subsidiaries has had contribute to or has or could have any present liability of any nature, whether known or future liability unknown, direct or obligation to contributeindirect, fixed or contingent. With respect to each material Company Plan, To the Company has furnished or made available to Parent a current, accurate and complete copy thereof, including any amendments, and, to the extent applicable: (i) any related trust agreement or other funding instrument, (ii) the most recent determination, opinion or advisory letter knowledge of the Internal Revenue Service (the “IRS”), if applicable, (iii) any summary plan description or other material written communications by the Company or its Subsidiaries to their employees concerning the extent of the benefits provided under a Company Plan and (iv) the most recent (A) Form 5500 and attached schedules, (B) audited financial statements, and (C) actuarial valuation reports.
(b) Except as disclosed in Section 3.13(b) of the Company Disclosure Letter and except as, individually or in the aggregate, has not had, and would not reasonably be expected to have, a Material Adverse Effect on the Company, with respect to the Company Plans:
(1) each Company such Pension Plan that is a Multiemployer Plan has been established and administered operated in all material respects in accordance with its terms and in compliance in all material respects with the applicable provisions of ERISA, the Code and other Applicable Law. Each such other Pension Plan has been operated in all material respects in accordance with its terms and in compliance in all material respects with the applicable provisions of ERISA, the Code and all other Applicable Law. All Pension Plans that are intended to be qualified under the provisions of Section 401(a) of the Code satisfy in form and operation all applicable Laws, qualification requirements and have not received in the six preceding seven (7) years or committed to receive a transfer of assets and/or liabilities or spin-off from another plan, except transfers, which were intended to qualify as transfers from eligible rollover distributions within the meaning of Code Section 402(c)(4). Neither the Company nor any ERISA Affiliate has sponsored, maintained or contributed to any Pension Plan which, during the preceding seven (7) years, has been terminated, including by way of merger with or into another Pension Plan.
(b) No Pension Plan is now or has in the date hereof no reportable event, as defined in past seven (7) years been "top-heavy" pursuant to Section 4043 of ERISA, no prohibited transaction, as described in Section 406 of ERISA or Section 4975 416 of the Code.
(c) The Disclosure Schedule sets forth the name of each ERISA Affiliate.
(d) Neither the Company nor any ERISA Affiliate has or could have any liability of any nature, whether known or failure unknown, direct or indirect, fixed or contingent, to satisfy any Pension Plan, the minimum funding standardsPension Benefit Guaranty Corporation or any other person, arising directly or indirectly under Title IV of ERISA other than liability pursuant to Section 4007 for premiums which are not yet due (without regard to any waiver). No "reportable event," within the meaning of Section 302 4043 of ERISA and 412 of the CodeERISA, has occurred with respect to any Pension Plan subject to Title IV of ERISA. Neither the Company nor any ERISA Affiliate has ceased operations at any facility or withdrawn from any Pension Plan in a manner which could subject the Company or any ERISA Affiliate to liability under Section 4062(e), 4063 or 4064 of ERISA. Neither the Company nor any ERISA Affiliate maintains, contributes to or has participated in or agreed to participate in any Pension Plan that is a Multiemployer Plan. Neither the Company nor any ERISA Affiliate has been a party to a sale of assets to which Section 4204 of ERISA applied with respect to which it could incur any withdrawal liability (including any contingent or secondary withdrawal liability) to any Multiemployer Plan. Neither the Company nor any ERISA Affiliate has incurred, or has experienced an event that will, within the ensuing twelve (12) months, result in, a "complete withdrawal" or "partial withdrawal," as such terms are defined respectively in Sections 4203 and 4205 of ERISA, with respect to a Pension Plan which is a Multiemployer Plan, and all contributions required to be made under the terms of any Company Plan have been timely made;
(2) each Company Plan intended to be qualified under Section 401(a) of the Code (A) has received a favorable determination, advisory and/or opinion letter, as applicable, from the IRS that it is so qualified, (B) the trust maintained thereunder has been determined to be exempt from taxation under Section 501(a) of the Code and (C) to the Company’s knowledge, nothing has occurred since the date of such letter that could reasonably be expected result in such a complete or partial withdrawal. Neither the Company nor any ERISA Affiliate has incurred a decline in contributions to cause any Multiemployer Plan such that, if the loss current rate of such qualified status contributions continues, a seventy percent (70%) decline in contributions (as defined in Section 4205 of such Company Plan;
ERISA) will occur within the next three (3) there plan years.
(e) The Disclosure Schedule identifies each Welfare Plan, whether insured or otherwise, including without limitation any such plan that is no Action (including any investigationa Multiemployer Plan within the meaning of Section 3(37) of ERISA, audit or other administrative proceeding) by which the Department of Labor, the Pension Benefit Guaranty Corporation, the IRS Company or any other Governmental Entity or by any plan participant or beneficiary pendingERISA Affiliate sponsors, maintains, contributes to, is required to contribute to, or to has or could have any liability of any nature, whether known or unknown, direct or indirect, fixed or contingent. To the knowledge of the Company, threatenedeach such Welfare Plan that is a Multiemployer Plan has been operated in all material respects in accordance with its terms and in compliance in all material respects with applicable provisions of ERISA, relating the Code and other Applicable Law. Each such other Welfare Plan has been operated in all material respects in accordance with its terms and in compliance in all material respects with the applicable provisions of ERISA, the Code, the Health Insurance Portability and Accountability Act of 1996, Public Law 104-191 as codified in the Code and ERISA ("HIPAA") and corresponding regulations, including the HIPAA Portability Regulations and the HIPAA Privacy, Security and other Administrative Simplification Regulations and all other Applicable Law. Benefits under each Welfare Plan are fully insured by an insurance company unrelated to the Company Plans, or any fiduciaries thereof to which the Company could have an indemnification obligation with respect to their duties to the Company Plans ERISA Affiliate. No insurance policy or the assets of any of the trusts under any of the Company Plans (other than routine claims for benefits) nor, to the knowledge of the Company, are there facts contract requires or circumstances that exist that could reasonably be expect to give rise to any such Actions;
(4) no Company Plan is or, within the preceding six years, has been subject to Title IV of ERISA permits retroactive increase in premiums or subject to Section 412 of the Code and neither payments due thereunder. Neither the Company nor any Person that ERISA Affiliate has established or contributed to, is a member required to contribute to or has or could have any liability of a “controlled group any nature, whether known or unknown, direct or indirect, fixed or contingent, with respect to any "voluntary employees' beneficiary association" within the meaning of corporations” with, or is under “common control” with, or is a member of the same “affiliated service group” with the Company, in each case, as defined in Sections 414(b), (c), (m) or (oSection 501(c)(9) of the Code, maintains or contributes to (or has in the past six years maintained or contributed to) a multiemployer plan as defined in Section 3(37) of ERISA or a Title IV Plan;
(5) the Company and its Subsidiaries are not subject to any material liability, including additional contributions, fine, penalties or loss of Tax Deductions as a result of the administration or operation of any Company Plan that is a “group health plan” (as such term is defined in Section 5000(b)(1) of the Code);
(6) no Company Plan provides "welfare benefits, including death or medical benefits (whether or not insured) beyond retirement or termination of service, other than coverage mandated solely by applicable Law;
(7) none of the Company Plans provides for payment of an amount or provision of a benefit, the increase of a payment or benefit, the payment of a contingent amount or provision of a contingent benefit, or the acceleration of the payment, funding or vesting of an amount or benefit determined or occasioned, in whole or in part, by reason of the execution of this Agreement or the consummation of the transactions contemplated hereby whether alone or together with any other event; and
(8) no amounts payable under the Company Plans will fail to be deductible for federal income tax purposes by virtue of Section 280G of the Code as a result of the occurrence of the transactions contemplated by this Agreement, either alone or in combination with another event.
(c) The Company and its Subsidiaries have not entered into any employment or employment-related agreements (including change in control agreements and offer letters) to which a named individual is a party, other than those set forth on Section 3.13(a) of the Company Disclosure Letter.
(d) Each Company Plan that is a “nonqualified deferred compensation plan” fund" within the meaning of Section 409A of the Code and related Treasury Department guidance has (i) been operated between January 1, 2005 and December 31, 2008, in good faith compliance with Section 409A of the Code and Notice 2005-01 and (ii) since January 1, 2009 (or such later date permitted under applicable guidance), been operated in compliance, and is in documentary compliance, in all material respects, with the requirements of Section 409A 419 of the Code.
(e) Neither the Company nor any Subsidiary has a binding commitment to create any additional material Company Plan, or any plan, agreement or arrangement that would be a material Company Plan if adopted, or to modify or terminate any existing material Company Plan, except as required by applicable Law.
(f) The ESOP is an “employee stock ownership plan” "qualified asset account" within the meaning of Section 4975(e)(7) of the Code. Neither the Company nor the ESOP has, within the three year period immediately preceding the date of this Agreement, received any inquiry or notice from the IRS or any other governmental agency the effect of which is to question the qualification or status of the ESOP or any transaction entered into by the ESOP or the Company (with respect to the ESOP). The ESOP and the Company have filed all reports, returns or other documents in respect of the ESOP which are required to be filed pursuant to the applicable provisions 419A of the Code and ERISA and or "multiple employer welfare arrangement" within the regulations thereunder. All loans entered into by the ESOP (the “ESOP Loans”) constitute “exempt loans” under Treasury Regulation meaning of Section 54.4975-7(b)(1)(iii3(40). The securities held by the ESOP constitute “employer securities” under ERISA Section 407(d)(1) and Section 409(l) of the Code and “qualifying employer securities” under ERISA Section 407(d)(5) and Section 4975(e)(8) of the Code.
Appears in 1 contract
Benefit Plans. (a) Section 3.13(a4.11(a) of the Company Disclosure Letter contains sets forth a true and complete list of each material Company Plan. For purposes of this Agreement, “Company Plan” means each “employee benefit plan” (within the meaning of Section 3(3) other than any employment, termination or severance letter or agreement for non-officer employees of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”)), stock purchase, stock option, severance, employment, change-in-control, fringe benefit, bonus, incentive, deferred compensation, employee loan Company or other employee benefit plan, agreement, program, policy or other arrangement, whether or not subject to ERISA (including any funding mechanism therefor now in effect or required in the future as a result of the transactions contemplated by this Agreement or otherwise), whether written or unwrittenits Subsidiaries and equity award grant notices and agreements, in each case (i) maintained by to the Company or any extent documented on the Company’s standard forms made available to Parent and agreements with consultants entered into in the ordinary course of its Subsidiaries for current or former directors, employees or consultants of the Company or (ii) under which (A) any employee, director or consultant or former employee, director or consultant of the Company or any of its Subsidiaries has any present or future right to benefits and (B) the Company or any of its Subsidiaries has had or has any present or future liability or obligation to contributebusiness. With respect to each material Company Plan, the Company has furnished or made available to Parent a current, accurate and complete copy thereofthereof (or a description of any such unwritten Company Plan), including any amendmentsamendments thereto, and, to the extent applicable: (i) any related trust agreement or other funding instrument, (ii) the most recent determination, opinion determination or advisory letter of the Internal Revenue Service (the “IRS”), if applicable, (iii) any summary plan description or description, summary of material modifications and other material equivalent written communications by the Company or its Subsidiaries to their employees concerning the extent of the benefits provided under a such Company Plan and Plan, (iv) any communications with Government Entities concerning such Company Plan during the three (3) most recent years, (v) the nondiscrimination, coverage and other IRS limit testing reports for the three (3) most recent plan years, (vi) any agreements in effect between the Company or Subsidiary and any third party related to the insurance, funding, administration or operation of any Company Plan, including third party administration or professional employer organization agreements and (vii) if applicable, for the two most recent years (A) the Form 5500 and attached schedules, (B) audited financial statements, statements and (C) actuarial valuation reports. Neither the Company nor its Subsidiaries have received any notice or demand informing the Company or such Subsidiary that it may be liable for an “employer shared responsibility payment” as contemplated by Section 4980H of the Code, the regulations issued thereunder, and the Patient Protection and Affordable Care Act of 2010, as amended, and all regulations issued thereunder and rulings issued with respect thereto (the “Affordable Care Act”).
(b) Except as disclosed in Section 3.13(b) With respect to the Company Plans, except to the extent that the inaccuracy of any of the Company Disclosure Letter and except asrepresentations set forth in this Section 4.11 would not, individually or in the aggregate, has not had, and would not reasonably be expected to have, have a Material Adverse Effect on the Company, with respect to the Company PlansEffect:
(1i) each Company Plan has been established established, maintained, funded, operated and administered in compliance with, its terms and applicable Laws;
(ii) each Company Plan subject to ERISA has been established, funded, and administered in accordance with its terms and in compliance with the applicable provisions of ERISA, the Code and all other applicable Laws, including ERISA and in the six years preceding the date hereof no reportable eventCode, as defined in Section 4043 of ERISA, and no prohibited transaction, as described in Section 406 of ERISA or Section 4975 of the Code, or failure to satisfy the minimum accumulated funding standardsdeficiency, within the meaning of as defined in Section 302 of ERISA and 412 of the Code, has occurred with respect to any Company Plan, and all contributions contributions, premium payments, distributions or other payments required to be made under the terms of any Company Plan have been timely made;
(2iii) each Company Plan intended to be qualified under Section 401(a) of the Code (A) has received a currently effective favorable determination, advisory and/or opinion letter, as applicable, from the IRS that it is so qualified, (B) the trust maintained thereunder has been determined to be exempt from taxation under Section 501(a) of the Code qualified and (C) to the Company’s knowledge, nothing has occurred since the date of such letter that could would reasonably be expected to cause adversely affect the loss of such qualified status of such Company Plan;
(3iv) there is no Action (including any investigation, audit or other administrative proceeding) by the Department of Labor, the Pension Benefit Guaranty CorporationCorporation (the “PBGC”), the IRS or any other Governmental Entity or by any plan participant or beneficiary pending, or to the knowledge of the Company, threatened, relating to the Company Plans, any fiduciaries thereof to which the Company could have an indemnification obligation with respect to their duties to the Company Plans or the assets of any of the trusts under any of the Company Plans (other than routine claims for benefits) nor, to the knowledge of the Company, nor are there facts or circumstances that exist that could would reasonably be expect expected to give rise to any such Actions;
(4v) no Company Plan is or, within the preceding six years, has been subject to Title IV of ERISA or subject to Section 412 of the Code and neither the Code;
(vi) no Company nor any Person that Plan is a member “multiemployer plan” (within the meaning of a “controlled group of corporations” with, or is under “common control” with, or is a member of the same “affiliated service group” with the Company, in each case, as defined in Sections 414(b), (c), (m) or (o) of the Code, maintains or contributes to (or has in the past six years maintained or contributed to) a multiemployer plan as defined in Section 3(37) of ERISA or a Title IV PlanERISA;
(5vii) the Company and its Subsidiaries are do not subject to any material liability, including additional contributions, fine, penalties or loss of Tax Deductions as a result of the administration or operation of maintain any Company Plan that is a “group health plan” (as such term is defined in Section 5000(b)(1) of the Code)) that has not been administered and operated in all respects in compliance with the applicable requirements of Section 601 of ERISA and Section 4980B of the Code, similar state Laws and the Affordable Care Act, and the Company and its Subsidiaries are not subject to any material liability, including additional contributions, fines, penalties or loss of tax deduction as a result of such administration and operation;
(6) no Company Plan provides welfare benefits, including death or medical benefits (whether or not insured) beyond retirement or termination of service, other than coverage mandated solely by applicable Law;
(7viii) none of the Company Plans provides for payment of an amount or provision of a benefit, the increase of a payment or benefitbenefit amount, the payment of a contingent amount or provision of a contingent benefit, benefit or the acceleration of the payment, funding payment or vesting of an amount or a benefit determined or occasioned, in whole or in part, by reason of the execution of this Agreement or the consummation of the transactions Offer or Merger contemplated hereby whether (other than as specifically contemplated by Section 3.2 hereof); and
(ix) no payments or benefits under any Company Plan are, or are expected to be, subject to the disallowance of a deduction under Section 162(m) of the Code.
(c) Neither the execution and delivery of this Agreement and any related documents nor the consummation of the Offer or Merger contemplated hereby will, either alone or together in combination with any other event; and
, and other than as specifically contemplated by Section 3.2 hereof: (8) no amounts payable under i) require the Company Plans will fail or any Subsidiary to fund any liabilities or place in trust or otherwise set aside any amounts in respect of any Company Plan, (ii) entitle any current or former service provider of the Company to any compensation or benefits due under any plan, program, agreement or arrangement including any Company Plan, (iii) result in the forfeiture of compensation or benefits under any Company Plan, (iv) accelerate the time at which any compensation, benefits or award may become payable, vested or required to be funded in respect of any current or former service provider of the Company, or (v) limit or restrict the right of the Company or any Subsidiary to merger, amend or terminate any Company Plan. Neither the execution and delivery of this Agreement nor the consummation of the Merger or the Offer, whether alone or in connection with any other event, will result in payments or benefits (including accelerated vesting) to any current or former employee, officer, director or manager or other service provider of the Company or any Subsidiary that would not be deductible for federal income tax purposes by virtue to the payor as a result of Section 280G of the Code as a or would result in any excise tax on any Person (including any such current or former employee, officer, director or manager) under Section 4999 of the occurrence of the transactions contemplated by this Agreement, either alone or in combination with another event.
(c) The Company and its Subsidiaries have not entered into any employment or employment-related agreements (including change in control agreements and offer letters) to which a named individual is a party, other than those set forth on Section 3.13(a) of the Company Disclosure LetterCode.
(d) None of the Company, any of its Subsidiaries or any entity within the same “controlled group” as the Company or any of its Subsidiaries within the meaning of Section 4001(a)(14) of ERISA or 414 of the Code (an “ERISA Affiliate”) has ever contributed or been obligated to contribute to (i) a multiemployer plan, as defined in Section 4001(a)(3) of ERISA or 3(37) of ERISA, (ii) a multiple employer plan, as defined in Section 413(c) of the Code, (iii) a multiple employer welfare arrangement, as defined in Section 3(40) of ERISA, (iv) any plan or agreement that provides life, health or other non-pension benefits to any person beyond their retirement or other termination of service, other than coverage mandated by COBRA or other applicable Law (and for which the sole expense is borne by such Person) (v) a plan subject to Title IV of ERISA.
(e) No event has occurred, and no condition or circumstance exists, that could reasonably be expected to subject the Company, any Subsidiary of the Company or any Company Plan to penalties or excise taxes under Sections 4980D, 4980H, 6721, 6722, 6055 or 6056 of the Code or under any provision of the Affordable Care Act. No Company Plan has been the subject of an application or filing under, or is a participant in, an amnesty, voluntary compliance, self-correction or similar program sponsored by any Governmental Entity within the last six (6) years.
(f) Neither the Company nor any Subsidiary of the Company is required to provide any gross-up, make-whole or other additional payment with respect to taxes, interests or penalties imposed under any Tax provisions, including Section 409A or Section 4999 of the Code.
(g) Each Company Plan that is a “nonqualified deferred compensation plan” within (as defined in Section 409A(d)(1) of the meaning Code) has at all times been operated in all material respects in compliance with its terms and the operational and documentary compliance requirements of Section 409A of the Code and related the Treasury Department Regulations and other applicable guidance has (i) been operated between January 1, 2005 and December 31, 2008, in good faith compliance with Section 409A of the Code and Notice 2005-01 and (ii) since January 1, 2009 (or such later date permitted under applicable guidance), been operated in compliance, and is in documentary compliance, in all material respects, with the requirements of Section 409A of the Codethereunder.
(e) Neither the Company nor any Subsidiary has a binding commitment to create any additional material Company Plan, or any plan, agreement or arrangement that would be a material Company Plan if adopted, or to modify or terminate any existing material Company Plan, except as required by applicable Law.
(f) The ESOP is an “employee stock ownership plan” within the meaning of Section 4975(e)(7) of the Code. Neither the Company nor the ESOP has, within the three year period immediately preceding the date of this Agreement, received any inquiry or notice from the IRS or any other governmental agency the effect of which is to question the qualification or status of the ESOP or any transaction entered into by the ESOP or the Company (with respect to the ESOP). The ESOP and the Company have filed all reports, returns or other documents in respect of the ESOP which are required to be filed pursuant to the applicable provisions of the Code and ERISA and the regulations thereunder. All loans entered into by the ESOP (the “ESOP Loans”) constitute “exempt loans” under Treasury Regulation Section 54.4975-7(b)(1)(iii). The securities held by the ESOP constitute “employer securities” under ERISA Section 407(d)(1) and Section 409(l) of the Code and “qualifying employer securities” under ERISA Section 407(d)(5) and Section 4975(e)(8) of the Code.
Appears in 1 contract
Benefit Plans. (a) Section 3.13(aEach Benefit Plan that is sponsored or maintained by any Seller on behalf of its Employees in connection with the Business, and that is not a UK personal pension scheme, an offer letter, employment agreement, consulting agreement or similar agreement, is listed on Schedule 4.14(a) of (such plans, collectively, the Company Disclosure Letter contains a true and complete list of each material Company Plan. For purposes of this Agreement, “Company Plan” means each “employee benefit plan” (within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISASellers’ Benefit Plans”)), stock purchase, stock option, severance, employment, change-in-control, fringe benefit, bonus, incentive, deferred compensation, employee loan or other employee benefit plan, agreement, program, policy or other arrangement, whether or not subject to ERISA (including any funding mechanism therefor now in effect or required in the future as a result of the transactions contemplated by this Agreement or otherwise), whether written or unwritten, in each case (i) maintained by the Company or any of its Subsidiaries for current or former directors, employees or consultants of the Company or (ii) under which (A) any employee, director or consultant or former employee, director or consultant of the Company or any of its Subsidiaries has any present or future right to benefits and (B) the Company or any of its Subsidiaries has had or has any present or future liability or obligation to contribute. With respect to each material Company Plan, the Company has furnished or made available to Parent a current, accurate and complete copy thereof, including any amendments, and, to the extent applicable: (i) any related trust agreement or other funding instrument, (ii) the most recent determination, opinion or advisory letter of the Internal Revenue Service (the “IRS”), if applicable, (iii) any summary plan description or other material written communications by the Company or its Subsidiaries to their employees concerning the extent of the benefits provided under a Company Plan and (iv) the most recent (A) Form 5500 and attached schedules, (B) audited financial statements, and (C) actuarial valuation reports.
(b) Except as disclosed in Section 3.13(b) With respect to each of the Sellers’ Benefit Plans that is material, the Company Disclosure Letter has made available to the Buyer true and except ascomplete copies of (i) with respect to such a plan that is sponsored or maintained on behalf of a U.S. Employee, individually the Benefit Plan document (including all amendments thereto), (ii) with respect to such a plan sponsored or maintained on behalf of an Other Business Employee, any formal description of such Sellers’ Benefit Plan that is required by Law, (iii) the most recent summary plan description used in connection with such Benefit Plan and any material modifications thereto (if applicable), and (iv) with respect to the Company Retirement Plan, the most recent IRS determination letter.
(i) Each Assumed Plan has been maintained, funded and administered in all material respects in accordance with its terms and all applicable Laws, (ii) all contributions required to be made with respect to any Assumed Plan on or before the date hereof have been made or, if not yet due, have been properly reflected in the aggregatefinancial statements prior to the date of this Agreement, has other than any contributions that are not hadmaterial, and (iii) to the Company’s Knowledge, no event has occurred and no condition exists in connection with any Assumed Plan that could reasonably be expected to subject the Buyer to any Tax, fine, encumbrance, penalty or other similar Liability as a result of a failure to comply with any applicable Laws except as would not reasonably be expected to have, a Material Adverse Effect on the Company, with respect result in material liability to the Company Plans:
(1) each Company Plan has been established and administered in accordance with its terms and in compliance with the applicable provisions of ERISA, the Code and all other applicable Laws, and in the six years preceding the date hereof no reportable event, as defined in Section 4043 of ERISA, no prohibited transaction, as described in Section 406 of ERISA or Section 4975 of the Code, or failure to satisfy the minimum funding standards, within the meaning of Section 302 of ERISA and 412 of the Code, has occurred with respect to any Company Plan, and all contributions required to be made under the terms of any Company Plan have been timely made;
(2) each Company Plan intended to be qualified under Section 401(a) of the Code (A) has received a favorable determination, advisory and/or opinion letter, as applicable, from the IRS that it is so qualified, (B) the trust maintained thereunder has been determined to be exempt from taxation under Section 501(a) of the Code and (C) to the Company’s knowledge, nothing has occurred since the date of such letter that could reasonably be expected to cause the loss of such qualified status of such Company Plan;
(3) there is no Action (including any investigation, audit or other administrative proceeding) by the Department of Labor, the Pension Benefit Guaranty Corporation, the IRS or any other Governmental Entity or by any plan participant or beneficiary pending, or to the knowledge of the Company, threatened, relating to the Company Plans, any fiduciaries thereof to which the Company could have an indemnification obligation with respect to their duties to the Company Plans or the assets of any of the trusts under any of the Company Plans (other than routine claims for benefits) norBuyer, to the knowledge extent of the Companysuch accruals, are there facts or circumstances that exist that could reasonably be expect to give rise to any such Actions;
(4) no Company Plan is or, within the preceding six years, has been subject to Title IV of ERISA or subject to Section 412 of the Code and neither the Company nor any Person that is a member has no material liability arising out of a “controlled group of corporations” with, or is under “common control” with, or is a member of the same “affiliated service group” in connection with the Company, in each case, as defined in Sections 414(b), (c), (m) or (o) of the Code, maintains or contributes to (or has in the past six years maintained or contributed to) a multiemployer plan as defined in Section 3(37) of ERISA or a Title IV Plan;
(5) the Company and its Subsidiaries are not subject to any material liability, including additional contributions, fine, penalties or loss of Tax Deductions as a result of the administration form or operation of any Company Plan that is a “group health plan” (as such term is defined in Section 5000(b)(1) of the Code);
(6) no Company Plan provides welfare benefits, including death Seller’s Benefit Plans or medical benefits (whether accrued thereunder on or not insured) beyond retirement or termination of service, other than coverage mandated solely by applicable Law;
(7) none of prior to the Company Plans provides for payment of an amount or provision of a benefit, the increase of a payment or benefit, the payment of a contingent amount or provision of a contingent benefit, or the acceleration of the payment, funding or vesting of an amount or benefit determined or occasioned, in whole or in part, by reason of the execution of this Agreement or the consummation of the transactions contemplated hereby whether alone or together with any other event; and
(8) no amounts payable under the Company Plans will fail to be deductible for federal income tax purposes by virtue of Section 280G of the Code as a result of the occurrence of the transactions contemplated by this Agreement, either alone or in combination with another event.
(c) The Company and its Subsidiaries have not entered into any employment or employment-related agreements (including change in control agreements and offer letters) to which a named individual is a party, other than those set forth on Section 3.13(a) of the Company Disclosure LetterClosing Date.
(d) Each Company Plan Assumed Plan, employment agreement, or other contract, plan, program, agreement, or arrangement that is a “nonqualified deferred compensation plan” (within the meaning of Section 409A 409A(d)(1) of the Code and related Treasury Department guidance Code) has (i) been operated between January 1, 2005 and December 31, 2008, in good faith compliance with Section 409A of the Code and Notice 2005-01 and (ii) since January 1Code, 2009 (or such later date permitted under applicable guidance), been operated in complianceits Treasury regulations, and any administrative guidance relating thereto; and no additional tax under Section 409A(a)(1)(B) of the Code has been or is reasonably expected to be incurred by a participant in documentary complianceany such Assumed Plan. Neither the Company nor any Seller is a party to, in all material respectsor otherwise obligated under, any Contract, agreement, plan or arrangement with any Transferred Employee that provides for the requirements gross-up of taxes imposed by Section 409A 409A(a)(1)(B) of the Code.
(e) Neither No actions, suits or claims (other than claims for benefits in the Company nor ordinary course) are pending or, to the Company’s Knowledge, threatened with respect to any Subsidiary has a binding commitment to create any additional material Company Assumed Plan, or any plan, agreement or arrangement that would be a material Company Plan if adopted, or to modify or terminate any existing material Company Plan, except as required by applicable Law.
(f) The ESOP Except for the Transaction Bonus Arrangements, there are no arrangements or agreements pursuant to which any Employee is an “employee stock ownership plan” within entitled to be paid a bonus or other compensation upon or immediately following the meaning of Section 4975(e)(7) Closing solely as a result of the Code. Neither Closing of the Company nor the ESOP hasContemplated Transactions, within the three year period immediately preceding the date of this Agreementother than (i) payments for accrued vacation, received (ii) payments under any inquiry or notice from the IRS or any other governmental agency the effect of Seller Benefit Plan which is to question the qualification or status not an Assumed Plan and (iii) payments which may be made as a result of a termination of employment (which may have occurred as a result of the ESOP or any transaction entered into by the ESOP or the Company (with respect to the ESOP). The ESOP and the Company have filed all reports, returns or other documents in respect Closing of the ESOP which are required to be filed pursuant to the applicable provisions of the Code and ERISA and the regulations thereunder. All loans entered into by the ESOP (the “ESOP Loans”) constitute “exempt loans” under Treasury Regulation Section 54.4975-7(b)(1)(iiiContemplated Transactions). The securities held by the ESOP constitute “employer securities” under ERISA Section 407(d)(1) and Section 409(l) of the Code and “qualifying employer securities” under ERISA Section 407(d)(5) and Section 4975(e)(8) of the Code.
Appears in 1 contract
Benefit Plans. (a) Section 3.13(aSchedule 4.11(a) of the Company Disclosure Letter contains Schedules sets forth a true and complete correct list of each all material Company Plan. For purposes of this Agreement, “Plans.
(b) The Company Plan” means has made available to Investor with respect to each “employee benefit plan” (within the meaning of Section 3(3Company Plan listed on Schedule 4.11(a) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”)), stock purchase, stock option, severance, employment, change-in-control, fringe benefit, bonus, incentive, deferred compensation, employee loan or other employee benefit plan, agreement, program, policy or other arrangement, whether or not subject to ERISA (including any funding mechanism therefor now in effect or required in the future as a result of the transactions contemplated by this Agreement or otherwise), whether written or unwritten, in each case (i) maintained by the Company or any of its Subsidiaries for current or former directors, employees or consultants of the Company or (ii) under which (A) any employee, director or consultant or former employee, director or consultant of the Company or any of its Subsidiaries has any present or future right to benefits and (B) the Company or any of its Subsidiaries has had or has any present or future liability or obligation to contribute. With respect to each material Company Plan, the Company has furnished or made available to Parent a current, accurate and complete copy thereof, including any amendments, andDisclosure Schedules, to the extent applicable: , (i) any related trust agreement a copy of each written Company Plan or other funding instrumenta summary of each Company Plan that is not in writing, correct and complete and as in effect on the date hereof, (ii) the most recent annual report on Form 5500 required to be filed with the IRS, if any, (iii) the most recent summary plan description, including all summaries of material modifications required under ERISA, if any, (iv) each trust, insurance, annuity or other funding Contract, including all amendments thereto, (v) the most recently prepared financial statements and actuarial or other valuation reports and (vi) the most recent IRS determination, opinion or advisory letter of the Internal Revenue Service (the “IRS”), if applicable, (iii) any summary plan description or other material written communications by the Company or its Subsidiaries to their employees concerning the extent of the benefits provided under a Company Plan and (iv) the most recent (A) Form 5500 and attached schedules, (B) audited financial statements, and (C) actuarial valuation reports.
(b) Except as disclosed in Section 3.13(b) of the Company Disclosure Letter and except as, individually or in the aggregate, has not had, and would not reasonably be expected to have, a Material Adverse Effect on the Company, with respect to the Company Plans:
(1) for each Company Plan has been established and administered in accordance with its terms and in compliance with the applicable provisions of ERISA, the Code and all other applicable Laws, and in the six years preceding the date hereof no reportable event, as defined in Section 4043 of ERISA, no prohibited transaction, as described in Section 406 of ERISA or Section 4975 of the Code, or failure that is intended to satisfy the minimum funding standards, be qualified within the meaning of Section 302 of ERISA and 412 401(a) of the Code, has occurred with respect to any Company Plan, and all contributions required to be made under the terms of any Company Plan have been timely made;.
(2c) For each Company Plan that is intended to be qualified under Section 401(a) of the Code (A) Code, the Company has received obtained a favorable and current IRS determination, opinion or advisory and/or opinion letterletter to such effect, as applicable, from the IRS that it is so qualified, (B) the trust maintained thereunder has been determined to be exempt from taxation under Section 501(a) of the Code and (C) to the Company’s knowledge, nothing has occurred since the date of such letter occurred, whether by action or inaction, that could reasonably be expected to cause the loss of such qualified status of such qualification or any material Liability to a Business Group Company.
(d) Each Company Plan (and any related trust or other funding vehicle) has been established, maintained, operated and administered in material compliance with its terms and all applicable Laws. With respect to each Company Plan;
, except as would not reasonably be expected to result in material Liability to any Business Group Company (3i) there is are no Action (including any investigationpending or, audit or other administrative proceeding) by the Department of Labor, the Pension Benefit Guaranty Corporation, the IRS or any other Governmental Entity or by any plan participant or beneficiary pending, or to the knowledge Company’s Knowledge, threatened, Actions (other than claims for benefits in the ordinary course of business), (ii) no facts or circumstances exist, to the Knowledge of the Company, threatened, relating to the Company Plans, any fiduciaries thereof to which the Company could have an indemnification obligation with respect to their duties to the Company Plans or the assets of any of the trusts under any of the Company Plans (other than routine claims for benefits) nor, to the knowledge of the Company, are there facts or circumstances that exist that could would reasonably be expect expected to give rise to any such Actions;Actions and (iii) no audit, investigation or other administrative proceeding by the U.S. Department of Labor, IRS or any other Governmental Authority is pending, or, to the Company’s Knowledge, threatened.
(4e) no No Business Group Company has any obligation to provide health or other non-pension benefits to any employee or former employee of a Business Group Company upon retirement, or termination of employment for any reason, except as specifically required by the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, or other applicable Law. No Company Plan is oris, and the Company does not sponsor, maintain, contribute to, and has not, within the preceding past six (6) years, has been sponsored, maintained, contributed to, or had any Liability (including by virtue of being an ERISA Affiliate of any other Person) with respect to any (i) single employer pension plan that is subject to Section 302 or Title IV of ERISA or subject to Section 412 of the Code and neither the Company nor any Person that is a member of a “controlled group of corporations” withCode, or is under (ii) any “common controlmultiemployer plan” with, or is a member (within the meaning of the same “affiliated service group” with the Company, in each case, as defined in Sections 414(b), (c), (m) or (o) of the Code, maintains or contributes to (or has in the past six years maintained or contributed to) a multiemployer plan as defined in Section 3(37) of ERISA or a Title IV Plan;ERISA).
(5f) Neither the execution and delivery of this Agreement nor the consummation of any or all of Contemplated Transactions, alone or in combination with any other event (including any termination of employment as of or following the Closing), will: (i) entitle any Company and its Subsidiaries are not subject Personnel to severance pay or any material liabilityincrease in severance pay, including additional contributions, fine, penalties or loss (ii) accelerate the time of Tax Deductions as a result of the administration or operation of any Company Plan that is a “group health plan” (as such term is defined in Section 5000(b)(1) of the Code);
(6) no Company Plan provides welfare benefits, including death or medical benefits (whether or not insured) beyond retirement or termination of service, other than coverage mandated solely by applicable Law;
(7) none of the Company Plans provides for payment of an amount or provision of a benefit, the increase of a payment or benefit, the payment of a contingent amount or provision of a contingent benefit, or the acceleration of the payment, funding or vesting or increase the amount of an amount any compensation or benefit determined due to any Company Personnel or occasioned, (iii) directly or indirectly result in whole any payment made or in part, by reason of the execution of this Agreement or the consummation of the transactions contemplated hereby whether alone or together with any other event; and
(8) no amounts payable under the Company Plans will fail to be deductible for federal income tax purposes by virtue made to or on behalf of any Company Personnel that would constitute a “parachute payment” within the meaning of Section 280G of the Code as a result Code. No Company Personnel is entitled to receive any gross-up or additional payment by reason of any Tax being imposed on such Person, including any Tax required by Section 409A or 4999 of the occurrence of the transactions contemplated by this Agreement, either alone or in combination with another eventCode.
(c) The Company and its Subsidiaries have not entered into any employment or employment-related agreements (including change in control agreements and offer letters) to which a named individual is a party, other than those set forth on Section 3.13(a) of the Company Disclosure Letter.
(dg) Each Company Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A 409A(d)(1) of the Code and related Treasury Department guidance any award thereunder, in each case that is subject to Section 409A of the Code, has (i) been operated between January 1, 2005 and December 31, 2008, in good faith compliance with Section 409A of the Code and Notice 2005-01 and (ii) since January 1, 2009 (or such later date permitted under applicable guidance), been operated in compliance, and is in documentary compliance, the regulations thereunder in all material respects, with the requirements of Section 409A of the Code.
(e) Neither the Company nor any Subsidiary has a binding commitment to create any additional material Company Plan, or any plan, agreement or arrangement that would be a material Company Plan if adopted, or to modify or terminate any existing material Company Plan, except as required by applicable Law.
(f) The ESOP is an “employee stock ownership plan” within the meaning of Section 4975(e)(7) of the Code. Neither the Company nor the ESOP has, within the three year period immediately preceding the date of this Agreement, received any inquiry or notice from the IRS or any other governmental agency the effect of which is to question the qualification or status of the ESOP or any transaction entered into by the ESOP or the Company (with respect to the ESOP). The ESOP and the Company have filed all reports, returns or other documents in respect of the ESOP which are required to be filed pursuant to the applicable provisions of the Code and ERISA and the regulations thereunder. All loans entered into by the ESOP (the “ESOP Loans”) constitute “exempt loans” under Treasury Regulation Section 54.4975-7(b)(1)(iii). The securities held by the ESOP constitute “employer securities” under ERISA Section 407(d)(1) and Section 409(l) of the Code and “qualifying employer securities” under ERISA Section 407(d)(5) and Section 4975(e)(8) of the Code.
Appears in 1 contract
Sources: Purchase Agreement (Coty Inc.)
Benefit Plans. (a( ) Section 3.13(a) of the Company Disclosure Letter contains Seller has furnished to Purchaser a true correct, complete and complete list current copy of each material Company Plan. For purposes of this Agreement, “Company Plan” means each “employee benefit plan” (within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”)), stock purchase, stock option, severance, employment, change-in-control, fringe benefit, bonus, incentive, deferred compensation, employee loan or other employee benefit plan, agreement, program, policy or arrangement which is set forth in writing and which provides cash or property or other arrangement, whether compensation related benefits of any kind or not subject description whatsoever to ERISA (including or on behalf of any funding mechanism therefor now in effect current or required in the future as a result former employee of the transactions contemplated by this Agreement or otherwise), whether written or unwritten, in each case (i) maintained by Seller employed primarily with respect to the Company Business or any of its Subsidiaries for current their dependents and a complete description of any such plan, program, policy or former directors, employees or consultants of the Company or arrangement which is not set forth in writing (ii) under which (A) any employee, director or consultant or former employee, director or consultant of the Company or any of its Subsidiaries has any present or future right to benefits and (B) the Company or any of its Subsidiaries has had or has any present or future liability or obligation to contribute. With respect to each material Company Plancollectively, the Company "Benefit Plans"). Each Benefit Plan is listed on Schedule 3.11.
(a) Seller has furnished or to Purchaser a correct, complete and current copy of all employee handbooks currently made available to Parent a current, accurate and complete copy thereof, including any amendments, and, the Seller's employees with respect to the extent applicable: (i) any related trust agreement or other funding instrument, (ii) the most recent determination, opinion or advisory letter of the Internal Revenue Service (the “IRS”), if applicable, (iii) any summary plan description or other material written communications by the Company or its Subsidiaries to their employees concerning the extent of the benefits provided under a Company Plan and (iv) the most recent (A) Form 5500 and attached schedules, (B) audited financial statements, and (C) actuarial valuation reports.the
(b) Except as disclosed in Section 3.13(b) of the Company Disclosure Letter and except as, individually or in the aggregate, has The Seller is not had, and would not reasonably be expected to have, a Material Adverse Effect on the Company, with respect to the Company Plans:
(1) each Company Plan has been established and administered in accordance with its terms and in compliance with the applicable provisions of ERISA, the Code and all other applicable Laws, and in the six years preceding the date hereof no reportable event, as defined in Section 4043 of ERISA, no prohibited transaction, as described in Section 406 of ERISA or Section 4975 of the Code, or failure to satisfy the minimum funding standards, within the meaning of Section 302 of ERISA and 412 of the Code, has occurred with respect party to any Company Plan, and all contributions required to be made under the terms employment related contract or agreement of any Company Plan have been timely made;
(2) each Company Plan intended to be qualified under Section 401(a) of the Code (A) has received a favorable determination, advisory and/or opinion letter, as applicable, from the IRS that it is so qualified, (B) the trust maintained thereunder has been determined to be exempt from taxation under Section 501(a) of the Code and (C) to the Company’s knowledge, nothing has occurred since the date of such letter that could reasonably be expected to cause the loss of such qualified status of such Company Plan;
(3) there is no Action (including any investigation, audit or other administrative proceeding) by the Department of Labor, the Pension Benefit Guaranty Corporation, the IRS or any other Governmental Entity or by any plan participant or beneficiary pending, or to the knowledge of the Company, threatened, kind whatsoever relating to the Company PlansBusiness, any fiduciaries thereof to which the Company could have an indemnification obligation with respect to their duties to the Company Plans or the assets of any of the trusts under any of the Company Plans multiemployer plan (other than routine claims for benefits) nor, to the knowledge of the Company, are there facts or circumstances that exist that could reasonably be expect to give rise to any such Actions;
(4) no Company Plan is or, within the preceding six years, has been subject to Title IV of ERISA or subject to Section 412 of the Code and neither the Company nor any Person that is a member of a “controlled group of corporations” with, or is under “common control” with, or is a member of the same “affiliated service group” with the Company, in each case, as defined in Sections 414(b), (c), (m) or (o) of the Code, maintains or contributes to (or has in the past six years maintained or contributed to) a multiemployer plan as defined in under Section 3(37) of ERISA or a Title IV Plan;
(5) the Company and its Subsidiaries are not subject to any material liabilityERISA), including additional contributions, fine, penalties or loss of Tax Deductions as a result of the administration or operation of any Company Plan that is a “group health plan” (as such term is defined in Section 5000(b)(1) of the Code);
(6) no Company Plan provides welfare benefits, including death or medical benefits (whether or not insured) beyond retirement or termination of service, other than coverage mandated solely by applicable Law;
(7) none of the Company Plans provides for payment of an amount or provision of a benefit, the increase of a payment or benefit, the payment of a contingent amount or provision of a contingent benefitwhich is, or the acceleration of the paymentpurports to be, funding binding in any way whatsoever on Purchaser, and there is no provision in any employment related contract or vesting of an amount agreement or benefit determined or occasioned, in whole or in part, by reason of the execution of this Agreement or the consummation of the transactions contemplated hereby whether alone or together with Benefit Plan specifically imposing any other event; and
(8) no amounts payable under the Company Plans will fail to be deductible for federal income tax purposes by virtue of Section 280G of the Code as a result of the occurrence of the transactions contemplated by this Agreement, either alone or in combination with another eventliability on Purchaser.
(c) The Company Seller has not made a statement or representation of any kind or description whatsoever to the Company's employees with respect to their possible employment by Purchaser or, if employed by Purchaser, their possible compensation or benefit package from Purchaser. 11. Labor Relations. Since January 23, 1996 and, to the knowledge of Seller (based solely upon inquiry of J. Read ▇▇▇▇▇ and its Subsidiaries have not entered into any employment or employment-related agreements (including change the representations and warranties made to the Seller in control agreements that certain Stock Purchase Agreement, dated as of September 30, 1995, by and offer letters) to which a named individual is a partyamong Seller, ▇▇. ▇▇▇▇▇ and certain other than those set forth on Section 3.13(a) of the Company Disclosure Letter.
(d) Each Company Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A of the Code and related Treasury Department guidance has (i) been operated between January 1individuals), 2005 and since December 31, 2008, in good faith compliance with Section 409A of the Code and Notice 2005-01 and (ii) since January 1, 2009 (or such later date permitted under applicable guidance), been operated in compliance, and is in documentary compliance, in all material respects, with the requirements of Section 409A of the Code.
(e) Neither the Company nor any Subsidiary has a binding commitment to create any additional material Company Plan, or any plan, agreement or arrangement that would be a material Company Plan if adopted, or to modify or terminate any existing material Company Plan1992, except as required by applicable Law.
set forth in Schedule 3.12, (fa) The ESOP is an “employee stock ownership plan” within the meaning of Section 4975(e)(7) employees of the Code. Neither the Company nor the ESOP has, within the three year period immediately preceding the date of this Agreement, received any inquiry or notice from the IRS or any other governmental agency the effect of which is to question the qualification or status of the ESOP or any transaction entered into by the ESOP or the Company (Seller with respect to the ESOP). The ESOP 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 Company have Seller has not been and is not a signatory to a collective bargaining agreement with any labor organization that relates to the Business; (c) no representation election petition has been filed all reports, returns or other documents in respect by employees of the ESOP which 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 required presently pending against the Seller with respect to be the Business or any labor organization representing its employees; (e) no grievance or arbitration demand, whether or not filed pursuant to a collective bargaining agreement, has been filed or is pending against the applicable provisions Seller with respect to the Business; (f) no hand billing, picketing, work stoppage (sympathetic or otherwise), or other "concerted action" involving the employees of the Code 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 the Fair Labor Standards Act, ▇▇▇▇▇-▇▇▇▇▇ Act, ▇▇▇▇▇-▇▇▇▇▇▇ Act, or 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 amended, the Americans with Disabilities Act, the Family and Medical Leave Act, the Fair Labor Standards Act, ERISA or 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 the regulations thereunder. All loans entered into by the ESOP (the “ESOP Loans”) constitute “exempt loans” under Treasury Regulation Section 54.4975-7(b)(1)(iii). The securities held by the ESOP constitute “employer securities” under ERISA Section 407(d)(1) and Section 409(l) of the Code and “qualifying employer securities” under ERISA Section 407(d)(5) and Section 4975(e)(8) of the Code.maintain an affirmative action plan, no discrimination
Appears in 1 contract
Sources: Asset Purchase Agreement (Consolidated Stainless Inc)
Benefit Plans. (a) Section 3.13(a) of the Company Disclosure Letter contains a true and complete list of each material Company Plan. For purposes of this Agreement, “Company Plan” means each “employee benefit plan” (within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”)), stock purchase, stock option, severance, employment, change-in-control, fringe benefit, bonus, incentive, deferred compensation, employee loan or other employee benefit plan, agreement, program, policy or other arrangement, whether or not subject to ERISA (including any funding mechanism therefor now in effect or required in the future as a result of the transactions contemplated by this Agreement or otherwise), whether written or unwritten, in each case (i) maintained by the Company or any of its Subsidiaries for current or former directors, employees or consultants of the Company or (ii) under which (A) any employee, director or consultant or former employee, director or consultant of the Company or any of its Subsidiaries has any present or future right to benefits and (B) the Company or any of its Subsidiaries has had or has any present or future liability or obligation to contribute. With respect to each material Company Steel Benefit Plan, the Company Steel has furnished or made available to Parent a current, Copper complete and accurate and complete copy thereof, including any amendments, andcopies of the following documents, to the extent applicable: ; (iA) such Steel Benefit Plan document (or, with respect to any related trust agreement such arrangement that is not in writing, a written description of the material terms thereof), including any amendment thereto, and to the extent applicable, the most recent summary plan description thereof, (B) each trust, insurance, annuity or other funding instrumentarrangement, and all amendments related thereto, (iiC) the two (2) most recent determinationaudited financial statements and actuarial or other valuation reports prepared with respect thereto, opinion or advisory letter of (D) the two (2) most recent Forms 5500 and all related schedules required to be filed with the Internal Revenue Service (the “IRS”), if applicable) with respect thereto, (iii) any summary plan description or other material written communications by the Company or its Subsidiaries to their employees concerning the extent of the benefits provided under a Company Plan and (ivE) the most recent (A) Form 5500 and attached schedules, (B) audited financial statements, recently received IRS determination letter or opinion letter and (CF) actuarial valuation reportsall material or non-routine correspondence with a Governmental Entity over the last three (3) years.
(b) Except as disclosed in Section 3.13(b) of the Company Disclosure Letter and except as, individually or in the aggregate, has not had, and would not reasonably be expected to have, have a Material Adverse Effect on the CompanySteel, with respect to the Company Plans:
(1A) each Company Plan of the Steel Benefit Plans has been established established, operated and administered in accordance compliance with its terms and in compliance accordance with the applicable provisions of Applicable Laws, including ERISA, the Code and all other applicable Laws, and in each case the six years preceding the date hereof no reportable event, as defined in Section 4043 of ERISA, no prohibited transaction, as described in Section 406 of ERISA or Section 4975 of the Code, or failure to satisfy the minimum funding standards, within the meaning of Section 302 of ERISA and 412 of the Code, has occurred with respect to any Company Plan, and all contributions required to be made under the terms of any Company Plan have been timely made;
(2) each Company Plan intended to be qualified under Section 401(a) of the Code (A) has received a favorable determination, advisory and/or opinion letter, as applicable, from the IRS that it is so qualified, regulations thereunder; (B) the trust maintained thereunder has been determined to be exempt from taxation under Section 501(a) of the Code and (C) to the Company’s knowledge, nothing has occurred since the date of such letter that could reasonably be expected to cause the loss of such qualified status of such Company Plan;
(3) there is no Action (including any investigation, audit or other administrative proceeding) by the Department of Labor, the Pension Steel Benefit Guaranty Corporation, the IRS or any other Governmental Entity or by any plan participant or beneficiary pending, or to the knowledge of the Company, threatened, relating to the Company Plans, any fiduciaries thereof to which the Company could have an indemnification obligation with respect to their duties to the Company Plans or the assets of any of the trusts under any of the Company Plans (other than routine claims for benefits) nor, to the knowledge of the Company, are there facts or circumstances that exist that could reasonably be expect to give rise to any such Actions;
(4) no Company Plan is or, within the preceding six years, has been subject to Title IV of ERISA or subject to Section 412 of the Code and neither the Company nor any Person that is a member of a “controlled group of corporations” with, or is under “common control” with, or is a member of the same “affiliated service group” with the Company, in each case, as defined in Sections 414(b), (c), (m) or (o) of the Code, maintains or contributes to (or has in the past six years maintained or contributed to) a multiemployer plan as defined in Section 3(37) of ERISA or a Title IV Plan;
(5) the Company and its Subsidiaries are not subject to any material liability, including additional contributions, fine, penalties or loss of Tax Deductions as a result of the administration or operation of any Company Plan that is a “group health plan” (as such term is defined in Section 5000(b)(1) of the Code);
(6) no Company Plan provides welfare benefits, including death or medical benefits (whether or not insured) ), with respect to current or former employees or directors of Steel or its Subsidiaries beyond their retirement or other termination of service, other than coverage mandated solely by the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”), or comparable U.S. state or foreign law; (C) all required contributions or other amounts payable by Steel or its Subsidiaries as of the Closing Effective Time pursuant to each Steel Benefit Plan in respect of current or prior plan years have been timely paid or, to the extent not yet due, have been accrued in accordance with GAAP; (D) neither Steel nor any of its Subsidiaries has engaged in a breach of fiduciary duty (as determined under ERISA) or a non-exempt prohibited transaction in connection with which Steel or its Subsidiaries could be subject to either a civil penalty assessed pursuant to Section 409 or 502 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 Steel, threatened or anticipated claims, Actions, investigations or audits (other than routine claims for benefits) by, on behalf of or against any of the Steel Benefit Plans, any trusts related thereto, the applicable Law;plan sponsor or administrator, or against any fiduciary of any Steel Benefit Plan with respect to the operation thereof.
(7c) Section 4.10(c) of the Steel Disclosure Letter sets forth each Multiemployer Plan or Multiple Employer Plan to which Steel, any of its Subsidiaries or any of their respective ERISA Affiliates contributes or is obligated to contribute, or within the six years preceding the date of this Agreement, contributed, or was obligated to contribute or under or with respect to which Steel otherwise has any current or contingent liability or obligation and separately identifies which Multiemployer Plans are in “endangered,” “critical,” or “critical and declining” status (within the meaning of Section 432 of the Code or Section 305 of ERISA). Except as set forth on Section 4.10(c) of the Steel Disclosure Letter and as, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect on Steel, none of Steel, any of its Subsidiaries or any of their respective ERISA Affiliates sponsors, maintains, contributes to or is obligated to contribute to, or within the six years preceding the date of this Agreement sponsored, maintained, contributed to, or was obligated to contribute to, or otherwise has any current or contingent liability or obligation under or with respect to: a Multiemployer Plan or Multiple Employer Plan, and none of Steel, any of its Subsidiaries or any of their respective ERISA Affiliates has, within the preceding six years, withdrawn in a complete or partial withdrawal from any Multiemployer Plan or incurred any liability under Section 4202, 4204 or 4212(c) of ERISA or has been notified that any Multiemployer Plan listed in Section 4.10(c) of the Steel Disclosure Letter has undergone or is expected to undergo a mass withdrawal or termination (or treatment of a plan amendment as termination).
(d) Except as, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect on Steel, each of the Steel Benefit Plans intended to be “qualified” within the meaning of Section 401(a) of the Code, has received a favorable determination letter or opinion letter as to its qualification or may rely upon a current advisory letter from the IRS and there are no existing circumstances or any events that have occurred that would reasonably be expected to adversely affect the qualified status of any such plan.
(e) Section 4.10(e) of the Steel Disclosure Letter sets forth each Steel Benefit Plan that is subject to Section 302 or Title IV or Section 412, 430 or 4971 of the Code (each, a “Steel Title IV Plan”). With respect to each Steel Title IV Plan, except for matters that, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect on Steel, (A) there does not exist any accumulated funding deficiency within the meaning of Section 412 of the Code and all contributions required under Section 302 of ERISA have been timely made, whether or not waived, (B) no such Steel Title IV Plan is currently in “at risk” status within the meaning of Section 430 of the Code or Section 303(i) of ERISA, (C) no reportable event within the meaning of Section 4043(c) of ERISA for which the 30-day notice requirement has been waived, has occurred or is reasonably expected to result, (D) none of Steel, any of its Subsidiaries or any of their respective ERISA Affiliates has engaged in any transaction described in Section 4069 of ERISA, (E) all premiums to the Company Plans provides Pension Benefit Guaranty Corporation (the “PBGC”) have been timely paid in full, (F) no liability (other than for payment premiums to the PBGC) has been or, to the Knowledge of an amount Steel, is expected to be incurred by Steel or provision any of a benefitits Subsidiaries and (G) the PBGC has not instituted proceedings to terminate any such Steel Title IV Plan. Except for matters that, the increase of a payment or benefit, the payment of a contingent amount or provision of a contingent benefit, or the acceleration of the payment, funding or vesting of an amount or benefit determined or occasioned, in whole individually or in partthe aggregate, would not reasonably be expected to have a Material Adverse Effect on Steel, there does not now exist, nor do any circumstances exist that could result in, any Controlled Group Liability that would be a liability following the Closing Effective Time of Steel, any of its Subsidiaries or any of their respective ERISA Affiliates.
(f) Except as provided by reason of this Agreement, neither the execution and delivery of this Agreement or nor the consummation of the transactions contemplated hereby whether (either alone or together in conjunction with any other event; and
) will (8) no amounts payable under A) cause or result in any payment (including severance, unemployment compensation, “excess parachute payment” (within the Company Plans will fail to be deductible for federal income tax purposes by virtue meaning of Section 280G of the Code Code), forgiveness of indebtedness or otherwise) becoming due to any current or former director or any employee of Steel or its Subsidiaries under any Steel Benefit Plan, (B) increase any compensation or benefits otherwise payable under any Steel Benefit Plan or (C) result in any acceleration of the time of payment, funding or vesting of any such benefits.
(g) No Person is entitled to receive any additional payment (including any Tax gross-up or other payment) from Steel or any of its Subsidiaries as a result of the occurrence imposition of the excise Taxes required by Section 4999 of the Code or any Taxes required by Section 409A of the Code. No Steel Benefit Plan provides for payments or benefits in connection with the transactions contemplated by this AgreementAgreement that, either alone individually or in combination with another event.
(c) The Company and its Subsidiaries have not entered into the aggregate, would reasonably be expected to give rise to the payment of any employment or employment-related agreements (including change amount that would result in control agreements and offer letters) a loss of Tax deductions pursuant to which a named individual is a party, other than those set forth on Section 3.13(a) of the Company Disclosure Letter.
(d) Each Company Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A of the Code and related Treasury Department guidance has (i) been operated between January 1, 2005 and December 31, 2008, in good faith compliance with Section 409A of the Code and Notice 2005-01 and (ii) since January 1, 2009 (or such later date permitted under applicable guidance), been operated in compliance, and is in documentary compliance, in all material respects, with the requirements of Section 409A 280G of the Code.
(eh) Neither Except as, individually or in the Company nor aggregate, would not reasonably be expected to have a Material Adverse Effect on Steel, all Steel Benefit Plans subject to the laws of any Subsidiary has a binding commitment to create any additional material Company Plan, or any plan, agreement or arrangement that would be a material Company Plan if adopted, or to modify or terminate any existing material Company Plan, except as required by applicable Law.
(f) The ESOP is an “employee stock ownership plan” within the meaning of Section 4975(e)(7) jurisdiction outside of the Code. Neither the Company nor the ESOP hasUnited States (A) have been maintained in accordance with its terms, within the three year period immediately preceding the date of this AgreementApplicable Laws and all other applicable requirements, received any inquiry (B) that are intended to qualify for special Tax treatment meet all requirements for such treatment, (C) that are intended to be funded or notice from the IRS book-reserved are fully funded or any other governmental agency the effect of which is to question the qualification or status of the ESOP or any transaction entered into by the ESOP or the Company book reserved, as appropriate, based upon reasonable actuarial assumptions, and (with respect to the ESOP). The ESOP and the Company have filed all reports, returns or other documents in respect of the ESOP which are D) if required to be filed pursuant registered, has been registered and has been maintained in good standing with applicable regulatory authorities. No Steel Benefit Plan subject to the applicable provisions laws of any jurisdiction outside of the Code and ERISA and the regulations thereunder. All loans entered into by the ESOP United States is a “defined benefit plan” (the “ESOP Loans”) constitute “exempt loans” under Treasury Regulation Section 54.4975-7(b)(1)(iiias defined in ERISA, whether or not subject to ERISA). The securities held by the ESOP constitute “employer securities” under ERISA Section 407(d)(1) and Section 409(l) of the Code and “qualifying employer securities” under ERISA Section 407(d)(5) and Section 4975(e)(8) of the Code.
Appears in 1 contract
Sources: Merger Agreement (Cedar Fair L P)
Benefit Plans. (a) Section 3.13(a) of the Company Seller Disclosure Letter contains sets forth a true and complete list list, as of each material Company Plan. For purposes the date of this Agreement, “Company Plan” means of each “employee benefit plan” (within material Benefit Plan that is applicable to the meaning of Section 3(3) Business Employees or individual independent contractors of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”)), stock purchase, stock option, severance, employment, change-in-control, fringe benefit, bonus, incentive, deferred compensation, employee loan or other employee benefit plan, agreement, program, policy or other arrangement, whether or not subject to ERISA (including any funding mechanism therefor now in effect or required in the future as a result of the transactions contemplated by this Agreement or otherwise), whether written or unwritten, in Business Group and separately identifies each case (i) maintained by the Company or any of its Subsidiaries for current or former directors, employees or consultants of the Company or (ii) under which (A) any employee, director or consultant or former employee, director or consultant of the Company or any of its Subsidiaries has any present or future right to benefits and (B) the Company or any of its Subsidiaries has had or has any present or future liability or obligation to contributesuch material Benefit Plan that is an Assumed Benefit Plan. With respect to each such material Company Benefit Plan, the Company Seller has furnished or made available to Parent a currentPurchaser complete copies or summaries of such Benefit Plan (or, accurate and complete copy in the case of any unwritten Benefit Plans, written descriptions thereof), including any amendmentsmaterial amendments thereto; provided that, andin the case of any such Benefit Plan that is an agreement to which a Business Employee or individual independent contractor of the Business Group is a party, Seller may instead make available a form or sample of such agreement, and provide copies of any agreements which vary from such forms or samples. With respect to each Assumed Benefit Plan listed in Section 3.13(a) of the extent Seller Disclosure Letter, Seller has made available to Purchaser copies of the following (as applicable: ): (iA) any related trust agreement trust, insurance, annuity or other funding instrumentContract related thereto, (iiB) the most recent determination, opinion financial statement and actuarial or advisory letter of the Internal Revenue Service other valuation report prepared with respect thereto (the “IRS”if any), (C) the two most recent annual reports required to be filed with the applicable Governmental Entity with respect thereto (if applicableany), (iii) any summary plan description or other material written communications by the Company or its Subsidiaries to their employees concerning the extent of the benefits provided under a Company Plan and (ivD) the most recent (A) Form 5500 and attached schedulessummary plan description together with the summary or summaries of all material modifications thereto, (BE) audited financial statementsthe most recent IRS determination or opinion letter, and (CF) actuarial valuation reportsall material correspondence to or from the IRS, the United States Department of Labor, the Pension Benefit Guaranty Corporation or any other Governmental Entity received in the last three years, in each case, except to extent prohibited under applicable data privacy Laws or any other obligations to maintain the confidentiality of such information under applicable Law.
(b) Except as disclosed in Section 3.13(b) of the Company Disclosure Letter and except as, individually or in the aggregate, has not had, and would not reasonably Each Benefit Plan that is intended to be expected to have, a Material Adverse Effect on the Company, with respect to the Company Plans:
(1) each Company Plan has been established and administered in accordance with its terms and in compliance with the applicable provisions of ERISA, the Code and all other applicable Laws, and in the six years preceding the date hereof no reportable event, as defined in Section 4043 of ERISA, no prohibited transaction, as described in Section 406 of ERISA or Section 4975 of the Code, or failure to satisfy the minimum funding standards, qualified within the meaning of Section 302 of ERISA and 412 of the Code, has occurred with respect to any Company Plan, and all contributions required to be made under the terms of any Company Plan have been timely made;
(2) each Company Plan intended to be qualified under Section 401(a) of the Code (A) has received a favorable determinationdetermination letter as to its qualification (or has filed for such a letter before the expiration of the applicable remedial amendment period), advisory and/or opinion letter, as applicable, from the IRS that it and each trust established in connection with any Benefit Plan which is so qualified, (B) the trust maintained thereunder has been determined intended to be exempt from U.S. Federal income taxation under Section 501(a) of the Code and (C) is so exempt and, to the Company’s knowledgeKnowledge of Seller, nothing has occurred since the date of such letter that could reasonably be expected to cause the loss of adversely affect such qualified status of such Company Plan;qualification or exemption.
(3c) there is no Action (including Each Assumed Benefit Plan has been operated in compliance with the terms of the applicable Assumed Benefit Plan, and with all applicable Laws, except, in each case, as have not and would not, individually or in the aggregate, reasonably be expected to result in any investigation, audit or other administrative proceeding) material liability to any Business Group Member. Each Assumed Benefit Plan required to have been approved by the Department of Labor, the Pension Benefit Guaranty Corporation, the IRS or any other a Governmental Entity or by any plan participant or beneficiary pendinghas been so approved, or to the knowledge of the Company, threatened, relating to the Company Plans, any fiduciaries thereof to which the Company could have an indemnification obligation with respect to their duties to the Company Plans or the assets of any of the trusts under any of the Company Plans (other than routine claims for benefits) and no such approval has been revoked nor, to the knowledge Knowledge of Seller, has revocation been threatened, except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. Except as have not and would not, individually or in the aggregate, reasonably be expected to result in any material liability to any Business Group Member, all contributions and benefit payments in relation to any Assumed Benefit Plan that are required to be made by any Business Group Member have been timely made or have been properly accrued as a financial indebtedness of the Company, are there facts or circumstances that exist that could reasonably be expect to give rise to any such Actions;Business Group Member on the Financial Statements.
(4d) no Company No Business Group Member has received any written notice of any, and to the Knowledge of Seller, there are no, investigations by any Governmental Entity with respect to, or other Proceedings (except routine claims for benefits payable in the ordinary course) against or involving, any Assumed Benefit Plan.
(e) (i) No Benefit Plan is or, within the preceding six years, has been subject to covered by Title IV of ERISA has been terminated and no proceedings have been instituted to terminate or appoint a trustee under Title IV of ERISA to administer any such plan; (ii) no Benefit Plan (other than any Multiemployer Plan) subject to Section 412 of the Code and neither or Section 302 of ERISA has failed to satisfy the Company nor minimum funding standard within the meaning of Section 412 of the Code or Section 302 of ERISA, or obtained a waiver of any Person minimum funding standard or an extension of any amortization period under Section 412 of the Code or Section 302 or 304 of ERISA; (iii) no Benefit Plan that is a member single-employer defined benefit pension plan subject to Section 412 of a “controlled group the Code or Section 302 or Title IV of corporations” withERISA is, or is under “common control” withexpected to be, or is a member considered an at-risk plan within the meaning of Section 430 of the same “affiliated service group” Code or Section 303 of ERISA; (iv) neither the Seller nor any of its Affiliates has incurred any unsatisfied withdrawal liability under Title IV of ERISA with respect to any Multiemployer Plan, and the Companyaggregate liabilities of Seller and its Affiliates to all Multiemployer Plans in the event of a complete withdrawal therefrom, as of the close of the most recent fiscal year of each Multiemployer Plan ended prior to the date hereof, would not reasonably be expected to result in material liability to Purchaser, any Group Company or any of their respective Affiliates, in each case, as defined following the Closing and (v) to the Knowledge of Seller, no Multiemployer Plan (x) is in Sections 414(b“reorganization” (within the meaning of Section 4241 of ERISA); (y) is, or may reasonably be expected to become, “insolvent” (cwithin the meaning of Section 4245 of ERISA), (m) ; or (oz) is in endangered or critical status under Section 432 of the Code or Section 305 of ERISA.
(f) Each Benefit Plan subject to Section 409A of the Code (if any) has at all relevant times been in compliance in all material respects with applicable document requirements of, and has been operated in compliance in all material respects with, Section 409A of the Code and the regulations and other official guidance promulgated thereunder.
(g) No Benefit Plan requires any commitment to reimburse, make-whole, indemnify or otherwise “gross-up” any person for Tax set forth under Section 409A of the Code, maintains or contributes to (or has in the past six years maintained or contributed to) a multiemployer plan as defined in Section 3(37) of ERISA or a Title IV Plan;
(5) the Company and its Subsidiaries are not subject to any material liability, including additional contributions, fine, penalties or loss of Tax Deductions as a result of the administration or operation of any Company Plan that is a “group health plan” (as such term is defined in Section 5000(b)(1) 280G of the Code);, or Section 4999 of the Code (or any similar provision of state, local or foreign law) or any other Tax.
(6h) no Company Plan provides welfare benefits, including death or medical benefits (whether or not insured) beyond retirement or termination of service, other than coverage mandated solely by applicable Law;
(7) none of the Company Plans provides for payment of an amount or provision of a benefit, the increase of a payment or benefit, the payment of a contingent amount or provision of a contingent benefit, or the acceleration of the payment, funding or vesting of an amount or benefit determined or occasioned, in whole or in part, by reason None of the execution and delivery of this Agreement or the consummation of the transactions contemplated hereby whether alone or together with any other event; and
(8) no amounts payable under the Company Plans will fail to be deductible for federal income tax purposes by virtue of Section 280G of the Code Transactions will, except as a result of the occurrence of the transactions expressly contemplated by this AgreementAgreement or as required by applicable Laws, either alone (i) entitle any Business Employee or individual independent contractor of the Business Group to retention, change in control or similar compensation or benefits under any Benefit Plan or cause any Business Employee or individual independent contractor of the Business Group to become eligible for any increase in severance benefits under any Benefit Plan, (ii) accelerate the payment or vesting, or trigger any funding of, compensation or benefits, or increase the amount payable or trigger any other obligation due to, or in respect of, any Business Employee or individual independent contractor of the Business Group, (iii) directly or indirectly cause Seller or Purchaser, or any of their Affiliates to transfer or set aside any assets to fund any material benefits under any Assumed Benefit Plan, (iv) otherwise give rise to any material liability under any Assumed Benefit Plan, (v) limit or restrict the right to merge, materially amend, terminate, or transfer the assets of any Assumed Benefit Plan on or following the Effective Time, or (vi) result in the payment of any amount that could, individually or in combination with another event.
(cany other such payment, constitute an “excess parachute payment” as defined in Section 280G(b)(1) The Company and its Subsidiaries have not entered into any employment or employment-related agreements (including change in control agreements and offer letters) to which a named individual is a party, other than those set forth on Section 3.13(a) of the Company Disclosure Letter.
(d) Each Company Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A of the Code and related Treasury Department guidance has (i) been operated between January 1, 2005 and December 31, 2008, in good faith compliance with Section 409A of the Code and Notice 2005-01 and (ii) since January 1, 2009 (or such later date permitted under applicable guidance), been operated in compliance, and is in documentary compliance, in all material respects, with the requirements of Section 409A of the Code.
(ei) Neither Except as prohibited by applicable Law or a Business Collective Bargaining Agreement, each Assumed Benefit Plan can be amended, terminated or otherwise discontinued after the Effective Time in accordance with its terms, without material liabilities to Purchaser, any Group Company nor any Subsidiary has a binding commitment to create any additional material Company Plan, or any planof their respective Affiliates, agreement or arrangement that would be other than ordinary administration expenses typically incurred in a material Company Plan if adopted, or to modify or terminate any existing material Company Plan, except as required by applicable Lawtermination event.
(f) The ESOP is an “employee stock ownership plan” within the meaning of Section 4975(e)(7) of the Code. Neither the Company nor the ESOP has, within the three year period immediately preceding the date of this Agreement, received any inquiry or notice from the IRS or any other governmental agency the effect of which is to question the qualification or status of the ESOP or any transaction entered into by the ESOP or the Company (with respect to the ESOP). The ESOP and the Company have filed all reports, returns or other documents in respect of the ESOP which are required to be filed pursuant to the applicable provisions of the Code and ERISA and the regulations thereunder. All loans entered into by the ESOP (the “ESOP Loans”) constitute “exempt loans” under Treasury Regulation Section 54.4975-7(b)(1)(iii). The securities held by the ESOP constitute “employer securities” under ERISA Section 407(d)(1) and Section 409(l) of the Code and “qualifying employer securities” under ERISA Section 407(d)(5) and Section 4975(e)(8) of the Code.
Appears in 1 contract
Benefit Plans. (a) Section 3.13(a3.19(a) of the Company Disclosure Letter contains a true correct and complete list of each material Company Benefit Plan. For purposes of this Agreement, “and separately identifies any material Company Plan” means each “employee benefit plan” (within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974Benefit Plan which covers employees, as amended (“ERISA”)), stock purchase, stock option, severance, employment, change-in-control, fringe benefit, bonus, incentive, deferred compensation, employee loan or other employee benefit plan, agreement, program, policy or other arrangement, whether or not subject to ERISA (including any funding mechanism therefor now in effect or required in the future as a result of the transactions contemplated by this Agreement or otherwise), whether written or unwritten, in each case (i) maintained by the Company or any of its Subsidiaries for current or former directors, employees or consultants of the Company or (ii) under which (A) any employee, director or consultant or former employee, director or consultant directors and/or independent contractors of the Company or any of its Subsidiaries has any present or future right outside of the United States, in each case other than at-will employee offer letters that are materially similar to benefits and the form provided to Parent.
(Bb) the Company or any of its Subsidiaries has had or has any present or future liability or obligation to contribute. With respect to each material Company Benefit Plan, true, current and complete copies of each of the Company has furnished or following have been made available to Parent a currentParent, accurate and complete copy thereof, including any amendments, and, to the extent as applicable: (i) any related trust agreement or other funding instrumentthe plan document together with all amendments and material contracts relating thereto, (ii) the most recent determination, opinion or advisory letter summary plan description and summary of the Internal Revenue Service (the “IRS”), if applicablematerial modifications thereto, (iii) in the case of any summary plan description that is intended to be qualified under Code Section 401(a), the most recent determination, opinion, or other material written communications by advisory letter from the Company or its Subsidiaries to their employees concerning the extent of the benefits provided under a Company Plan IRS and any related correspondence, (iv) in the case of any plan for which Forms 5500 are required to be filed, the Form 5500 (and all attachments and auditor’s reports thereto) for the two (2) most recent plan years, (v) copies of the non-discrimination testing results for the two (2) most recent (A) Form 5500 and attached schedules, (B) audited financial statementsplan years, and (Cvi) actuarial valuation reportsall material correspondence to or from any Governmental Entity with respect to each Company Benefit Plan within the past three (3) years.
(bc) Except as disclosed in Section 3.13(b) of the Company Disclosure Letter and except as, individually or in the aggregate, has not hadbeen, and would not reasonably be expected to havebe, a Material Adverse Effect on individually or in the Companyaggregate, with respect materially adverse to the Company Plans:and its Subsidiaries, taken as a whole, no Company Benefit Plan is or was within the past six (6) years, and neither the Company nor any of its Subsidiaries nor any of their ERISA Affiliates has or reasonably expects to have any Liability or obligation under (including current or potential withdrawal Liability): (i) any “multiemployer plan” (as that term is defined in Section 3(37) of ERISA); (ii) any employee plan which is a “defined benefit plan” (as that term is defined in Section 3(35) of ERISA), whether or not terminated, which is subject to Section 412 of the Code and/or Title IV of ERISA; (iii) a “multiple employer plan” as described in Section 413(c) of the Code; or (iv) a “multiple employer welfare arrangement” as described in Section 3(40) of ERISA.
(1d) All amounts properly accrued as Liabilities to or expenses of any Company Benefit Plan have been properly reflected, in all material respects, in the most recent financial statements contained in the Company SEC Reports, to the extent required by GAAP. Since the date of such financial statements, there has been no amendment by the Company relating to any Company Benefit Plan which would materially increase the cost of such Company Benefit Plan.
(e) With respect to each Company Benefit Plan: (i) such Company Benefit Plan has been established and administered maintained in accordance with and in compliance, in all material respects, with its terms and in compliance with the applicable provisions of ERISA, the Code and all other applicable Laws, including ERISA and in the six years preceding the date hereof no reportable event, as defined in Section 4043 of ERISA, no prohibited transaction, as described in Section 406 of ERISA or Section 4975 of the Code; (ii) all material contributions, or failure to satisfy the minimum funding standardspremiums and other similar payments to, within the meaning of Section 302 of ERISA and 412 of the Codepayments from, has occurred such Company Benefit Plan with respect to any Company Plan, and all contributions required to be made under period ending on or before the terms of any Company Plan Closing Date have been timely made;, except as would not result in any material Liability; and (iii) all required filings with any Governmental Entity have been made.
(2f) each Each Company Benefit Plan intended to be qualified qualify under Section 401(a) of the Code (A) has received either have been determined by the Internal Revenue Service to be so qualified or is maintained pursuant to a favorable determination, advisory and/or opinion letter, as applicable, letter from the IRS that it is so qualifiedInternal Revenue Service, (B) the trust maintained thereunder and no event has been determined to be exempt from taxation under Section 501(a) of the Code occurred and (C) no condition exists with respect to the Company’s knowledge, nothing has occurred since the date form or operation of such letter that could Company Benefit Plan which would reasonably be expected to cause the loss of such qualified status of such qualification or exemption, except as has not been, and would not reasonably be expected to be, individually or in the aggregate, materially adverse to the Company Plan;and its Subsidiaries, taken as a whole.
(3g) The Company, each Subsidiary and each ERISA Affiliate has complied in all material respects with (i) the notice and continuation coverage requirements, and all other requirements, of Section 4980B of the Code and Parts 6 and 7 of Title I of ERISA, and the regulations thereunder, and (ii) the affordability and minimum essential coverage requirements, and all other requirements, of the Patient Protection and Affordable Care Act of 2010, as amended, in each case, with respect to each Company Benefit Plan that is a group health plan.
(h) Except as set forth on Section 3.19(h) of the Company Disclosure Letter, there is are no Action (including any investigationCompany Benefit Plans, audit Contracts or other administrative proceeding) obligations of the Company or any of its Subsidiaries which provides for health, life or other welfare benefits to past or present employees beyond their retirement or other termination of service, other than coverage mandated by the Department Consolidated Omnibus Budget Recommendation Act of Labor1985, Section 4980B of the Code, Title I of ERISA or any similar state group health plan continuation Laws, the Pension cost of which is fully paid by such employees or their dependents.
(i) Except as set forth on Section 3.19(i) of the Company Disclosure Letter, and excluding any Company Benefit Guaranty CorporationPlans that provided for only statutory severance pay and other statutory termination entitlements, the IRS execution of this Agreement and the consummation of the Transactions will not (either alone or in conjunction with any other action by the Company or any other Governmental Entity of its Subsidiaries prior to the Closing): (i) entitle any past or by present employee, director and/or independent contractor of the Company or any plan participant of its Subsidiaries to any bonuses, severance pay, transaction related payments or beneficiary pendingany similar payments in excess of $150,000; (ii) accelerate the time of the payment or vesting of, or increase the amount of, any compensation and/or benefits due to any past or present employee, director and/or independent contractor of the Company or any of its Subsidiaries; or (iii) be the direct or indirect cause of any amount paid or payable by the Company or any of its Subsidiaries being classified as an “excess parachute payment” under Section 280G of the Code.
(j) Neither the Company nor any of its Subsidiaries has any obligation (whether pursuant to a Company Benefit Plan or otherwise) to indemnify, “gross-up”, reimburse or otherwise compensate any individual with respect to the knowledge additional Taxes or interest imposed pursuant to Sections 409A or 4999 of the Code.
(k) Neither the Company nor any of its Subsidiaries nor any Company Benefit Plan nor, to the Knowledge of the Company, threatenedany “disqualified person” (as defined in Section 4975 of the Code) or “party in interest” (as defined in Section 3(18) of ERISA) has engaged in any non-exempt prohibited transaction (within the meaning of Section 4975 of the Code or Section 406 of ERISA) which, relating individually or in the aggregate, has resulted or could reasonably be expected to result in any material liability to the Company Plansor any of its Subsidiaries.
(l) Except as has not been, any fiduciaries thereof and would not reasonably be expected to which be, individually or in the Company could have an indemnification obligation with respect to their duties aggregate, materially adverse to the Company Plans or the assets of any of the trusts under any of the Company Plans and its Subsidiaries, taken as a whole, there are no Legal Actions (other than routine claims for benefits) norpending or, to the knowledge Knowledge of the Company, are there threatened against or relating to any of the Company Benefits Plans and, to the Knowledge of the Company, no facts or circumstances that exist that which could reasonably be expect to give rise to any such Legal Actions;
(4) no Company Plan is or, within the preceding six years, has been subject to Title IV of ERISA or subject to Section 412 of the Code and neither the Company nor any Person that is a member of a “controlled group of corporations” with, or is under “common control” with, or is a member of the same “affiliated service group” with the Company, in each case, as defined in Sections 414(b), (c), (m) or (o) of the Code, maintains or contributes to (or has in the past six years maintained or contributed to) a multiemployer plan as defined in Section 3(37) of ERISA or a Title IV Plan;
(5) the Company and its Subsidiaries are not subject to any material liability, including additional contributions, fine, penalties or loss of Tax Deductions as a result of the administration or operation of any Company Plan that is a “group health plan” (as such term is defined in Section 5000(b)(1) of the Code);
(6) no Company Plan provides welfare benefits, including death or medical benefits (whether or not insured) beyond retirement or termination of service, other than coverage mandated solely by applicable Law;
(7) none of the Company Plans provides for payment of an amount or provision of a benefit, the increase of a payment or benefit, the payment of a contingent amount or provision of a contingent benefit, or the acceleration of the payment, funding or vesting of an amount or benefit determined or occasioned, in whole or in part, by reason of the execution of this Agreement or the consummation of the transactions contemplated hereby whether alone or together with any other event; and
(8) no amounts payable under the Company Plans will fail to be deductible for federal income tax purposes by virtue of Section 280G of the Code as a result of the occurrence of the transactions contemplated by this Agreement, either alone or in combination with another event.
(c) The Company and its Subsidiaries have not entered into any employment or employment-related agreements (including change in control agreements and offer letters) to which a named individual is a party, other than those set forth on Section 3.13(a) of the Company Disclosure Letter.
(d) Each Company Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A of the Code and related Treasury Department guidance has (i) been operated between January 1, 2005 and December 31, 2008, in good faith compliance with Section 409A of the Code and Notice 2005-01 and (ii) since January 1, 2009 (or such later date permitted under applicable guidance), been operated in compliance, and is in documentary compliance, in all material respects, with the requirements of Section 409A of the Code.
(e) Neither the Company nor any Subsidiary has a binding commitment to create any additional material Company Plan, or any plan, agreement or arrangement that would be a material Company Plan if adopted, or to modify or terminate any existing material Company Plan, except as required by applicable Law.
(f) The ESOP is an “employee stock ownership plan” within the meaning of Section 4975(e)(7) of the Code. Neither the Company nor the ESOP has, within the three year period immediately preceding the date of this Agreement, received any inquiry or notice from the IRS or any other governmental agency the effect of which is to question the qualification or status of the ESOP or any transaction entered into by the ESOP or the Company (with respect to the ESOP). The ESOP and the Company have filed all reports, returns or other documents in respect of the ESOP which are required to be filed pursuant to the applicable provisions of the Code and ERISA and the regulations thereunder. All loans entered into by the ESOP (the “ESOP Loans”) constitute “exempt loans” under Treasury Regulation Section 54.4975-7(b)(1)(iii). The securities held by the ESOP constitute “employer securities” under ERISA Section 407(d)(1) and Section 409(l) of the Code and “qualifying employer securities” under ERISA Section 407(d)(5) and Section 4975(e)(8) of the Code.
Appears in 1 contract
Benefit Plans. (a) Section 3.13(a) 3.22 of the Company Disclosure Letter contains a true and complete list of lists each material Company Plan. For purposes of this Agreement, “Company Plan” means each “Plan under which any employee benefit plan” (within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”)), stock purchase, stock option, severance, employment, change-in-control, fringe benefit, bonus, incentive, deferred compensation, employee loan or other employee benefit plan, agreement, program, policy or other arrangement, whether or not subject to ERISA (including any funding mechanism therefor now in effect or required in the future as a result of the transactions contemplated by this Agreement or otherwise), whether written or unwritten, in each case (i) maintained by the Company or any of its Subsidiaries for current or former directors, employees or consultants employee of the Company or (ii) under which (A) any employee, director or consultant or former employee, director or consultant of the Company or any of its Subsidiaries has any present or future right to material benefits and (B) or the Company or any of its Subsidiaries has had sponsors, maintains or to which the Company or any of its Subsidiaries contributes or is obligated to contribute or has any present or future liability or obligation to contribute. With respect to each material Company Plan, the Company has furnished or made available to Parent a current, accurate and complete copy thereof, including any amendments, and, to the extent applicable: (i) any related trust agreement or other funding instrument, (ii) the most recent determination, opinion or advisory letter of the Internal Revenue Service (the “IRSCompany Benefit Plans”), ) and specifies if applicable, (iii) any summary plan description or other material written communications such Plan is not sponsored by the Company or any of its Subsidiaries to their employees concerning the extent of the benefits provided under a Subsidiaries. Each Company Plan and (iv) the most recent (A) Form 5500 and attached schedules, (B) audited financial statements, and (C) actuarial valuation reports.
(b) Except as disclosed in Section 3.13(b) of the Company Disclosure Letter and except as, individually or in the aggregate, has not had, and would not reasonably be expected to have, a Material Adverse Effect on the Company, with respect to the Company Plans:
(1) each Company Benefit Plan has been established and administered in all material respects in accordance with its terms terms, and complies in all material respects in form and in compliance operation with the applicable provisions requirements of ERISA, ERISA and the Code and all other applicable Laws, requirements of Law and in the six years preceding the date hereof no reportable event, as defined in Section 4043 of ERISA, no prohibited transaction, as described in Section 406 of ERISA or Section 4975 of the CodeCode involving the Company or any of its Subsidiaries (or, to the Knowledge of the Company, another “fiduciary” or failure to satisfy the minimum funding standards, “party-in-interest” within the meaning of Section 302 406 of ERISA and 412 of the Code, ERISA) has occurred with respect to any Company Plan. All material employer or employee contributions, premiums and all contributions required expenses to be made under the terms or in respect of any each Company Plan have been timely made;paid in full or, to the extent not yet due, have been adequately accrued on the applicable financial statements of the Company included in the Company SEC Documents in accordance with GAAP.
(2b) The Company has made available to Acquirer true, complete and correct copies of (to the extent applicable) (i) all such Company Benefit Plans and any amendments thereto; (ii) each trust, funding, insurance or administrative agreement relating to each such Company Plan intended to be qualified under Section 401(aBenefit Plan; (iii) the most recent summary plan description or other written explanation (or a description of any oral communications) of each such Company Benefit Plan provided to participants and any amendments thereto concerning the Code extent of the benefits provided under a Company Benefit Plan; (A) has received a favorable determination, advisory and/or opinion letter, as applicable, from the IRS that it is so qualified, (Biv) the trust maintained thereunder has been determined to be exempt from taxation under Section 501(a) of the Code and (C) to the Company’s knowledge, nothing has occurred since the date of such letter that could reasonably be expected to cause the loss of such qualified status of such Company Plan;
three (3) there most recent Forms 5500 required to have been filed with the Internal Revenue Service (or any similar reports filed in any comparable non-U.S. Governmental Authority) and any schedule thereto; (v) the most recent determination letter issued by the Internal Revenue Service with respect to the Plan or a prototype or similar plan on which it is entitled to rely (or comparable qualification document issued by a comparable non-U.S. Governmental Authority); and (vi) for the three (3) most recent years, final financial or actuarial reports specifically relating to the Plan. Neither the Company nor any of its Subsidiaries has communicated any intention or commitment to amend or modify any Company Benefit Plan or to establish or implement any other employee or retiree benefit or compensation plan or arrangement. For purposes of this Agreement, in no Action event shall the term Company Benefit Plans include any Plan that is sponsored or maintained by any of Acquirer or any of its Subsidiaries.
(including c) No Claim with respect to any investigation, audit or Company Benefit Plan (other administrative proceedingthan routine claims for benefits) by the Department of Labor, the Pension Benefit Guaranty Corporation, the IRS Internal Revenue Service (“IRS”) or any other Governmental Entity Authority or by any plan participant or beneficiary pending, is pending or to the knowledge Knowledge of the Company, threatened, relating to the Company Benefit Plans, any fiduciaries thereof to which the Company could have an indemnification obligation with respect to their duties to the Company Benefit Plans or the assets of any of the trusts under any of the Company Benefit Plans (other than routine claims for benefits) nor, which could reasonably be expected to result in a material liability to the knowledge Company or any of the Company, its Subsidiaries nor are there facts or circumstances that exist that could reasonably be expect to give rise to any such Actions;Claims.
(4d) no Company Plan is or, within the preceding six years, has been subject to Title IV of ERISA or subject to Section 412 None of the Code Company and neither its Subsidiaries or any other Person that would be treated as a single employer with the Company nor any Person that is a member of a “controlled group of corporations” with, or is under “common control” with, or is a member of the same “affiliated service group” with the Company, in each case, as defined in Sections Section 414(b), (c), (m) or (o) of the CodeCode (each, maintains a “Commonly Controlled Entity”) has within the preceding six (6) years incurred any direct or contributes to (or has in the past six years maintained or contributed to) a multiemployer plan as defined in Section 3(37) of indirect material liability under ERISA or a Title IV Plan;the Code in connection with the termination of, withdrawal from or failure to fund, any Company Benefit Plan or other retirement plan or arrangement, and no fact or event exists that could reasonably be expected to give rise to any such liability.
(5e) the The Company and its Subsidiaries are do not subject to any material liability, including additional contributions, fine, penalties or loss of Tax Deductions as a result of the administration or operation of maintain any Company Benefit Plan that is a “group health plan” (as such term is defined in Section 5000(b)(1) of the Code);) that has not been administered and operated in all respects in compliance with the applicable requirements of Section 601 of ERISA and Section 4980B(b) of the Code, and the Company and its Subsidiaries are not subject to any material liability, including additional contributions, fines, penalties or loss of Tax deduction as a result of such administration and operation.
(6f) The IRS has issued a favorable determination letter with respect to each Company Benefit Plan that is intended to be qualified under Section 401(a) of the Code stating that such plan or a prototype or similar plan on which such Plan is entitled to rely is so qualified and to the Knowledge of the Company no events have occurred that would reasonably be expected to result in the revocation of such determination.
(g) Except as set forth on Section 3.22(g) of the Company Disclosure Letter, no(g) Company Benefit Plan provides for medical, disability, life insurance or other welfare benefits, including death benefits with respect to any employee or medical benefits (whether or not insured) former employee beyond their retirement or other termination of service, other than (i) coverage mandated solely by applicable Law;
(7) none Law and at the expense of the Company Plans provides for payment employee or former employee or (ii) benefits under any “employee pension benefit plan” (as such term is defined in Section 3(2) of an amount or provision of a benefit, the increase of a payment or benefit, the payment of a contingent amount or provision of a contingent benefit, or the acceleration of the payment, funding or vesting of an amount or benefit determined or occasioned, in whole or in part, by reason of the execution of this Agreement or the consummation of the transactions contemplated hereby whether alone or together with any other event; and
(8) no amounts payable under the Company Plans will fail to be deductible for federal income tax purposes by virtue of Section 280G of the Code as a result of the occurrence of the transactions contemplated by this Agreement, either alone or in combination with another eventERISA).
(ch) No Company Benefit Plan is subject to Title IV of ERISA, neither the Company nor any of its Subsidiaries or ERISA Affiliates has incurred any actual or potential, secondary, or contingent liability under Title IV of ERISA and, to the Knowledge of the Company, there are no facts or circumstances that could reasonably be expected to give rise to such liability. Neither the Company nor any of its Subsidiaries or its ERISA Affiliates has at any time maintained, contributed to or incurred any liability under any “multiemployer plan” (as defined in Section 3(37) of ERISA). The Company and its Subsidiaries have has not entered into contributed to, been required to contribute to, or withdrawn from any employment or employment-related agreements “multiemployer plan” (including change as defined in control agreements and offer letters) to which a named individual is a party, other than those set forth on Section 3.13(a3(37) of the Company Disclosure LetterERISA).
(di) Each Company Benefit Plan that is a “nonqualified deferred compensation plan” within the meaning of (as such term is defined in Section 409A 409A(d)(1) of the Code and related Treasury Department guidance has (iCode) been operated between January 1, 2005 and December 31, 2008, are in good faith material compliance with Section 409A of the Code and Notice 2005-01 and (ii) since January 1, 2009 (or such later date permitted under applicable guidance), been operated in compliancethe regulations thereunder, and is none of the Company Benefit Plans or the Merger will cause a participant in documentary compliance, in all material respects, with such Company Benefit Plans to be subject to the requirements of Tax imposed by Section 409A 409A(a)(1)(B) of the Code.
(ej) Neither Except as set forth in Section 3.22(j) of the Company Disclosure Letter, neither the execution nor delivery of this Agreement, nor the consummation of the transactions contemplated thereby, either alone or together with any Subsidiary has other event, shall (i) entitle any current or former officer, director, manager, employee or consultant of the Company or any of its Subsidiaries or any independent contractor to severance pay or any other payment, (ii) accelerate the time of payment or vesting, result in any forgiveness of indebtedness or trigger any payment of funding (through a binding commitment grantor trust or otherwise) of compensation or benefits under, increase the amount payable pursuant to, any Company Benefit Plan, employment agreement or other arrangement, or (iii) result in any payment (whether in cash or property or the vesting of property) to create any “disqualified individual” (as such term is defined in Treasury Regulation section 1.280G-1) that could reasonably be construed, individually or in combination with any other such payment, to constitute an “excess parachute payment” (as defined in section 280G(b)(1) of the Code). No person is entitled to receive any additional material payment (including any tax gross-up or other payment) from the Company Plan, or any plan, agreement or arrangement that would be of its Subsidiaries as a material Company Plan if adopted, or to modify or terminate result of the imposition of any existing material Company Plan, except as excise taxes required by applicable Lawsection 4999 of the Code.
(fk) The ESOP Each non-U.S. Company Benefit Plan has been maintained in material compliance with its terms and with the requirements prescribed by any and all applicable statutes, orders, rules, and regulations (including any special provisions relating to qualified plans where such non-U.S. Company Benefit Plan was intended to so qualify) and has been maintained in good standing with applicable regulatory authorities. No non-U.S. Company Benefit Plan is an “employee stock ownership plan” a defined benefit plan (within the meaning of Section 4975(e)(73(35) of the Code. Neither the Company nor the ESOP hasERISA, within the three year period immediately preceding the date of this Agreement, received any inquiry whether or notice from the IRS or any other governmental agency the effect of which is not subject to question the qualification or status of the ESOP or any transaction entered into by the ESOP or the Company (with respect to the ESOPERISA). The ESOP and the Company have filed all reports, returns or other documents in respect of the ESOP which are required to be filed pursuant to the applicable provisions of the Code and ERISA and the regulations thereunder. All loans entered into by the ESOP (the “ESOP Loans”) constitute “exempt loans” under Treasury Regulation Section 54.4975-7(b)(1)(iii). The securities held by the ESOP constitute “employer securities” under ERISA Section 407(d)(1) and Section 409(l) of the Code and “qualifying employer securities” under ERISA Section 407(d)(5) and Section 4975(e)(8) of the Code.
Appears in 1 contract
Benefit Plans. (a) Section 3.13(a3.10(a) of the Company Disclosure Letter contains sets forth a true and complete list of each material Company Plan. For purposes of this Agreement, “Company Plan” means each “employee benefit plan” (within the meaning of Section 3(3) other than any employment, termination or severance letter or agreement for non-officer employees of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”)), stock purchase, stock option, severance, employment, change-in-control, fringe benefit, bonus, incentive, deferred compensation, employee loan Company or other employee benefit plan, agreement, program, policy or other arrangement, whether or not subject to ERISA (including any funding mechanism therefor now in effect or required in the future as a result of the transactions contemplated by this Agreement or otherwise), whether written or unwrittenits Subsidiaries and equity award grant notices and agreements, in each case (i) maintained by to the Company or any extent documented on the Company’s standard forms made available to Parent and agreements with consultants entered into in the ordinary course of its Subsidiaries for current or former directors, employees or consultants of the Company or (ii) under which (A) any employee, director or consultant or former employee, director or consultant of the Company or any of its Subsidiaries has any present or future right to benefits and (B) the Company or any of its Subsidiaries has had or has any present or future liability or obligation to contributebusiness. With respect to each material Company Plan, the Company has furnished or made available to Parent a current, accurate and complete copy thereofthereof (or a description of any such unwritten Company Plan), including any amendmentsamendments thereto, and, to the extent applicable: (i) any related trust agreement or other funding instrument, (ii) the most recent determination, opinion determination or advisory letter of the Internal Revenue Service (the “IRS”), if applicable, (iii) any summary plan description or description, summary of material modifications and other material equivalent written communications by the Company or its Subsidiaries to their employees concerning the extent of the benefits provided under a such Company Plan and Plan, (iv) any communications with Government Entities concerning such Company Plan during the three (3) most recent years, (v) the nondiscrimination, coverage and other IRS limit testing reports for the three (3) most recent plan years, (vi) any agreements in effect between the Company or Subsidiary and any third party related to the insurance, funding, administration or operation of such Company Plan, including third party administration or professional employer organization agreements and (vii) if applicable, for the two most recent years (A) the Form 5500 and attached schedules, (B) audited financial statements, statements and (C) actuarial valuation reports. Since January 1, 2021, neither the Company nor its Subsidiaries have received any notice or demand informing the Company or such Subsidiary that it may be liable for an “employer shared responsibility payment” as contemplated by Section 4980H of the Code, the regulations issued thereunder, and the Patient Protection and Affordable Care Act of 2010, as amended, and all regulations issued thereunder and rulings issued with respect thereto (the “Affordable Care Act”).
(b) Except as disclosed in Section 3.13(b) With respect to the Company Plans, except to the extent that the inaccuracy of any of the Company Disclosure Letter and except asrepresentations set forth in this Section 3.10 would not, individually or in the aggregate, has not had, and would not reasonably be expected to have, have a Material Adverse Effect on the Company, with respect to the Company PlansEffect:
(1i) each Company Plan has been established established, maintained, funded, operated and administered in compliance with, its terms and applicable Laws;
(ii) each Company Plan subject to ERISA has been established, funded, and administered in accordance with its terms and in compliance with the applicable provisions of ERISA, the Code and all other applicable Laws, including ERISA and in the six years preceding the date hereof no reportable eventCode, as defined in Section 4043 of ERISA, and no prohibited transaction, as described in Section 406 of ERISA or Section 4975 of the Code, or failure to satisfy the minimum accumulated funding standardsdeficiency, within the meaning of as defined in Section 302 of ERISA and 412 of the Code, has occurred with respect to any Company Plan, and all contributions contributions, premium payments, distributions or other payments required to be made under the terms of any Company Plan have been timely made;
(2iii) each Company Plan intended to be qualified under Section 401(a) of the Code (A) has received a currently effective favorable determination, advisory and/or opinion letter, as applicable, from the IRS that it is so qualified, (B) the trust maintained thereunder has been determined to be exempt from taxation under Section 501(a) of the Code qualified and (C) to the Company’s knowledge, nothing has occurred since the date of such letter that could would reasonably be expected to cause adversely affect the loss of such qualified status of such Company Plan;
(3iv) there is no Action (including any investigation, audit or other administrative proceeding) by the Department of Labor, the Pension Benefit Guaranty CorporationCorporation (the “PBGC”), the IRS or any other Governmental Entity or by any plan participant or beneficiary pending, or to the knowledge of the Company, threatened, relating to the Company Plans, any fiduciaries thereof to which the Company could have an indemnification obligation with respect to their duties to the Company Plans or the assets of any of the trusts under any of the Company Plans (other than routine claims for benefits) nor, to the knowledge of the Company, nor are there facts or circumstances that exist that could would reasonably be expect expected to give rise to any such Actions;; and
(4v) no Company Plan is or, within the preceding six years, has been subject to Title IV of ERISA or subject to Section 412 of the Code and neither the Company nor any Person that is a member of a “controlled group of corporations” with, or is under “common control” with, or is a member of the same “affiliated service group” with the Company, in each case, as defined in Sections 414(b), (c), (m) or (o) of the Code, maintains or contributes to (or has in the past six years maintained or contributed to) a multiemployer plan as defined in Section 3(37) of ERISA or a Title IV Plan;
(5vi) the Company and its Subsidiaries are do not subject to any material liability, including additional contributions, fine, penalties or loss of Tax Deductions as a result of the administration or operation of maintain any Company Plan that is a “group health plan” (as such term is defined in Section 5000(b)(1) of the Code);) that has not been administered and operated in all respects in compliance with the applicable requirements of Section 601 of ERISA and Section 4980B of the Code, similar state Laws and the Affordable Care Act, and the Company and its Subsidiaries are not subject to any material liability, including additional contributions, fines, penalties or loss of tax deduction as a result of such administration and operation; and
(6vii) no payments or benefits under any Company Plan are, or are expected to be, subject to the disallowance of a deduction under Section 162(m) of the Code.
(c) Neither the execution and delivery of this Agreement and any related documents nor the consummation of the Mergers contemplated hereby will, either alone or in combination with any other event: (i) require the Company or any Subsidiary to fund any liabilities or place in trust or otherwise set aside any amounts in respect of any Company Plan, (ii) entitle any current or former Service Provider of the Company to any compensation or benefits due under any plan, program, agreement or arrangement including any Company Plan, (iii) result in the forfeiture of compensation or benefits under any Company Plan, (iv) accelerate the time at which any compensation, benefits or award may become payable, vested or required to be funded in respect of any current or former Service Provider of the Company, or (v) limit or restrict the right of the Company or any Subsidiary to merger, amend or terminate any Company Plan.
(d) None of the Company, any of its Subsidiaries or any entity within the same “controlled group” as the Company or any of its Subsidiaries within the meaning of Section 4001(a)(14) of ERISA or 414 of the Code (an “ERISA Affiliate”) has within the past five (5) years contributed or been obligated to contribute to (i) a multiemployer plan, as defined in Section 4001(a)(3) of ERISA or 3(37) of ERISA, (ii) a multiple employer plan, as defined in Section 413(c) of the Code, (iii) a multiple employer welfare arrangement, as defined in Section 3(40) of ERISA, (iv) any plan or agreement that provides welfare benefitslife, including death health or medical other non-pension benefits (whether or not insured) to any person beyond their retirement or other termination of service, other than coverage mandated solely by COBRA or other applicable Law;Law (and for which the sole expense is borne by such Person) (v) a plan subject to Title IV of ERISA.
(7e) none No event has occurred, and no condition or circumstance exists, that could reasonably be expected to subject the Company, any Subsidiary of the Company Plans provides for payment of an amount or provision of a benefitany Company Plan to penalties or excise taxes under Sections 4980D, the increase of a payment 4980H, 6721, 6722, 6055 or benefit, the payment of a contingent amount or provision of a contingent benefit, or the acceleration of the payment, funding or vesting of an amount or benefit determined or occasioned, in whole or in part, by reason of the execution of this Agreement or the consummation of the transactions contemplated hereby whether alone or together with any other event; and
(8) no amounts payable under the Company Plans will fail to be deductible for federal income tax purposes by virtue of Section 280G 6056 of the Code as a result or under any provision of the occurrence Affordable Care Act. No Company Plan has been the subject of an application or filing under, or is a participant in, an amnesty, voluntary compliance, self-correction or similar program sponsored by any Governmental Entity within the transactions contemplated by this Agreement, either alone or in combination with another eventlast six (6) years.
(cf) The Neither the Company and its Subsidiaries have not entered into nor any employment or employment-related agreements (including change in control agreements and offer letters) to which a named individual is a party, other than those set forth on Section 3.13(a) Subsidiary of the Company Disclosure Letteris required to provide any gross-up, make-whole or other additional payment with respect to taxes, interests or penalties imposed under any Tax provisions, including Section 409A or Section 4999 of the Code.
(dg) Each Company Plan that is a “nonqualified deferred compensation plan” within (as defined in Section 409A(d)(1) of the meaning Code) has at all times been operated in compliance with its terms and the operational and documentary compliance requirements of Section 409A of the Code and related the Treasury Department Regulations and other applicable guidance has (i) been operated between January 1, 2005 and December 31, 2008, in good faith compliance with Section 409A of the Code and Notice 2005-01 and (ii) since January 1, 2009 (or such later date permitted under applicable guidance), been operated in compliance, and is in documentary compliance, in all material respects, with the requirements of Section 409A of the Codethereunder.
(e) Neither the Company nor any Subsidiary has a binding commitment to create any additional material Company Plan, or any plan, agreement or arrangement that would be a material Company Plan if adopted, or to modify or terminate any existing material Company Plan, except as required by applicable Law.
(f) The ESOP is an “employee stock ownership plan” within the meaning of Section 4975(e)(7) of the Code. Neither the Company nor the ESOP has, within the three year period immediately preceding the date of this Agreement, received any inquiry or notice from the IRS or any other governmental agency the effect of which is to question the qualification or status of the ESOP or any transaction entered into by the ESOP or the Company (with respect to the ESOP). The ESOP and the Company have filed all reports, returns or other documents in respect of the ESOP which are required to be filed pursuant to the applicable provisions of the Code and ERISA and the regulations thereunder. All loans entered into by the ESOP (the “ESOP Loans”) constitute “exempt loans” under Treasury Regulation Section 54.4975-7(b)(1)(iii). The securities held by the ESOP constitute “employer securities” under ERISA Section 407(d)(1) and Section 409(l) of the Code and “qualifying employer securities” under ERISA Section 407(d)(5) and Section 4975(e)(8) of the Code.
Appears in 1 contract
Benefit Plans. (a) Section 3.13(a) of the Company Disclosure Letter Schedule 3.1.21 contains a true and complete list of each material Company Benefit Plan and identifies each of the Benefit Plans that is a Pension Plan. For purposes of this AgreementExcept as provided in any Collective Agreement or in Schedule 3.1.21, “neither the Company Plan” means each “employee benefit plan” (within nor the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”)), stock purchase, stock option, severance, employment, change-in-control, fringe benefit, bonus, incentive, deferred compensation, employee loan Subsidiary has a formal plan or other employee benefit plan, agreement, program, policy or other arrangementcommitment, whether legally binding or not subject not, to ERISA (including create any funding mechanism therefor now in effect additional plan that would be a Benefit Plan or required in the future as a result of the transactions contemplated by this Agreement to modify, amend or otherwise), whether written or unwritten, in each case (i) maintained by the Company or change any of its Subsidiaries for current or former directors, employees or consultants of the Company or (ii) under which (A) any employee, director or consultant or former employee, director or consultant of the Company or any of its Subsidiaries has any present or future right to benefits and (B) the Company or any of its Subsidiaries has had or has any present or future liability or obligation to contribute. With respect to each material Company Benefit Plan, the Company has furnished except such modification, amendment or change as may be required by Applicable Laws or be made available to Parent a current, accurate and complete copy thereof, including any amendments, and, to the extent applicable: (i) any related trust agreement or other funding instrument, (ii) the most recent determination, opinion or advisory letter of the Internal Revenue Service (the “IRS”), if applicable, (iii) any summary plan description or other material written communications by the Company or secure its Subsidiaries to their employees concerning the extent of the benefits provided under a Company Plan and (iv) the most recent (A) Form 5500 and attached schedules, (B) audited financial statements, and (C) actuarial valuation reportscontinued registration with each applicable Governmental Authority.
(b) With respect to each of the Benefit Plans, the Seller has made available to the Buyer true and complete copies of each of the following documents:
(i) a copy of the current Benefit Plan (including all amendments thereto and any current plan summaries or employees booklets related thereto);
(ii) a copy of the current trust agreement or insurance contract, as applicable, all investment management, subscription, participation and record keeping agreements related thereto, and the most recent financial statements thereof; and
(iii) in respect of any Pension Plan, a copy of the last annual information return and most recent actuarial report filed with any applicable Governmental Authority, and a copy of the current statement of investment policies and procedures.
(c) Except as disclosed in Section 3.13(b) Schedule 3.1.21, all of the Company Disclosure Letter and except asBenefit Plans have been established, individually or in the aggregate, has not had, and would not reasonably be expected to have, a Material Adverse Effect on the Company, with respect to the Company Plans:
(1) each Company Plan has been established invested and administered in all material respects in accordance with its terms with, and in compliance with the applicable provisions of ERISAare registered where required by, the Code Applicable Law and all material obligations regarding the Benefit Plans (other applicable Laws, and in the six years preceding the date hereof no reportable event, as defined in Section 4043 of ERISA, no prohibited transaction, as described in Section 406 of ERISA or Section 4975 of the Code, or failure to satisfy the minimum funding standards, within the meaning of Section 302 of ERISA and 412 of the Code, has occurred with respect to any Company Plan, and all contributions required to be made under the terms of any Company Plan than benefit payments not yet made) have been timely made;
(2) each Company Plan intended to be qualified under Section 401(a) of the Code (A) has received a favorable determination, advisory and/or opinion letter, as applicable, from the IRS that it is so qualified, (B) the trust maintained thereunder has been determined to be exempt from taxation under Section 501(a) of the Code satisfied and (C) to the Company’s knowledge, nothing has occurred since the date of such letter that could reasonably be expected to cause the loss of such qualified status of such Company Plan;
(3) there is no Action (including any investigation, audit or other administrative proceeding) by the Department of Labor, the Pension Benefit Guaranty Corporation, the IRS or any other Governmental Entity or by any plan participant or beneficiary pending, or to the knowledge of the CompanySeller, threatenedthere are no outstanding material defaults or violations by any party thereto, relating to or Taxes owing under any Benefit Plan.
(d) To the knowledge of the Seller, neither the Company Plans, any fiduciaries thereof to which nor the Company could have an indemnification obligation with respect to their duties to the Company Plans or the assets of Subsidiary has been advised that any of the trusts under Benefit Plans, or any of the Company Plans related funding media, is subject to any pending investigation, examination or other proceeding, action or claim instituted by any applicable Governmental Authority, or by any other party (other than routine claims for benefits) nor), and to the knowledge of the CompanySeller, are there exists no state of facts which after notice or circumstances that exist that lapse of time or both could reasonably be expect expected to give rise to any such Actions;investigation, examination, proceeding, action or claim or to affect the registration of any of the Benefit Plans.
(4e) no All contributions or premiums required to be made by the Company Plan is or, within or the preceding six years, has been subject to Title IV of ERISA or subject to Section 412 Subsidiary under the terms of the Code Benefit Plans or by Applicable Law (other than those not due as of the date hereof) have been made, and neither the Company nor the Subsidiary has, nor will it have, any Person that is liability with respect to benefits or rights provided under any Benefit Plan occurring or arising as a member of a “controlled group of corporations” with, or is under “common control” with, or is a member consequence of the same “affiliated service group” with the Company, in each case, as defined in Sections 414(b), (c), (m) or (o) of the Code, maintains or contributes to (or has in the past six years maintained or contributed to) a multiemployer plan as defined in Section 3(37) of ERISA or a Title IV Plan;
(5) the Company and its Subsidiaries are not subject to any material liability, including additional contributions, fine, penalties or loss of Tax Deductions as a result of the administration or operation of any Company Plan that is a “group health plan” (as such term is defined in Section 5000(b)(1) of the Code);
(6) no Company Plan provides welfare benefits, including death or medical benefits (whether or not insured) beyond retirement or termination of service, other than coverage mandated solely by applicable Law;
(7) none of the Company Plans provides for payment of an amount or provision of a benefit, the increase of a payment or benefit, the payment of a contingent amount or provision of a contingent benefit, or the acceleration of the payment, funding or vesting of an amount or benefit determined or occasioned, in whole or in part, by reason of the execution of this Agreement or the consummation completion of the transactions contemplated hereby whether alone or together with any other event; and
(8) no amounts payable under the Company Plans will fail to be deductible for federal income tax purposes by virtue herein including, without limitation, a change of Section 280G of the Code as a result of the occurrence of the transactions contemplated by this Agreement, either alone or in combination with another event.
(c) The Company and its Subsidiaries have not entered into any employment or employment-related agreements (including change in control agreements and offer letters) to which a named individual is a party, other than those set forth on Section 3.13(a) of the Company Disclosure Letter.
(d) Each Company Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A of the Code and related Treasury Department guidance has (i) been operated between January 1, 2005 and December 31, 2008, in good faith compliance with Section 409A of the Code and Notice 2005-01 and (ii) since January 1, 2009 (or such later date permitted under applicable guidance), been operated in compliance, and is in documentary compliance, in all material respects, with the requirements of Section 409A of the Code.
(e) Neither the Company nor any Subsidiary has a binding commitment to create any additional material Company Plan, or any plan, agreement or arrangement that would be a material Company Plan if adopted, or to modify or terminate any existing material Company Plan, except as required by applicable Law.
(f) The ESOP is an “employee stock ownership plan” within the meaning of Section 4975(e)(7) of the Code. Neither the Company nor the ESOP has, within the three year period immediately preceding the date of this Agreement, received any inquiry or notice from the IRS or any other governmental agency the effect of which is to question the qualification or status of the ESOP or any transaction entered into by the ESOP or the Company (with respect to the ESOP). The ESOP and the Company have filed all reports, returns or other documents in respect of the ESOP which are required to be filed pursuant to the applicable provisions of the Code and ERISA and the regulations thereunder. All loans entered into by the ESOP (the “ESOP Loans”) constitute “exempt loans” under Treasury Regulation Section 54.4975-7(b)(1)(iii). The securities held by the ESOP constitute “employer securities” under ERISA Section 407(d)(1) and Section 409(l) of the Code and “qualifying employer securities” under ERISA Section 407(d)(5) and Section 4975(e)(8) of the CodeSubsidiary.
Appears in 1 contract
Sources: Share Purchase Agreement (Universal American Financial Corp)
Benefit Plans. (a) Set forth on Section 3.13(a6.18(a) of the Company Disclosure Letter contains Schedules is a true and complete list list, as of the date hereof, of each material Company Plan. For purposes Benefit Plan of this Agreementthe Target Companies (each, a “Company Benefit Plan” means each ”). No Target Company maintains, sponsors, contributes to, has any obligation to contribute to, or has any current or contingent Liability on account of an ERISA Affiliate under or with respect to: (1) any “employee benefit multiemployer plan” as defined under Section 3(37) of ERISA, (2) any plan or arrangement subject to Code Sections 412 or 4971, ERISA Section 02 or Title IV of ERISA or similar non-U.S. Laws or (3) a plan that has two or more contributing sponsors at least two of whom are not under common control within the meaning of ERISA Section 3(34063.
(b) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”)), stock purchase, stock option, severance, employment, change-in-control, fringe benefit, bonus, incentive, deferred compensation, employee loan or other employee benefit plan, agreement, program, policy or other arrangement, whether or not subject to ERISA (including any funding mechanism therefor now in effect or required in the future as a result of the transactions contemplated by this Agreement or otherwise), whether written or unwritten, in each case (i) maintained by the Company or any of its Subsidiaries for current or former directors, employees or consultants of the Company or (ii) under which (A) any employee, director or consultant or former employee, director or consultant of the Company or any of its Subsidiaries has any present or future right to benefits and (B) the Company or any of its Subsidiaries has had or has any present or future liability or obligation to contribute. With respect to each material Company Benefit Plan, the Company has furnished or made available to Parent a current, Purchaser accurate and complete copy thereof, including copies of the current plan documents and all material communications in the past three (3) years with any amendments, and, Governmental Authority concerning any matter that is still pending or for which a Target Company has any outstanding material Liability.
(c) With respect to the extent applicableeach material Company Benefit Plan: (i) any related trust agreement or other funding instrument, (ii) the most recent determination, opinion or advisory letter of the Internal Revenue Service (the “IRS”), if applicable, (iii) any summary plan description or other such material written communications by the Company or its Subsidiaries to their employees concerning the extent of the benefits provided under a Company Plan and (iv) the most recent (A) Form 5500 and attached schedules, (B) audited financial statements, and (C) actuarial valuation reports.
(b) Except as disclosed in Section 3.13(b) of the Company Disclosure Letter and except as, individually or in the aggregate, has not had, and would not reasonably be expected to have, a Material Adverse Effect on the Company, with respect to the Company Plans:
(1) each Company Benefit Plan has been established administered and administered enforced in all material respects in accordance with its terms and in compliance with the applicable provisions requirements of ERISA, the Code and all other applicable Laws, and has been maintained, where required, in good standing in all material respects with applicable regulatory authorities and Governmental Authorities, (ii) no breach of fiduciary duty that would result in material Liability to any Target Company has occurred, (iii) no Action that would result in a material Liability to the Target Companies is pending, or to the Company’s Knowledge, threatened (other than routine claims for benefits arising in the six years preceding the date hereof no reportable eventordinary course of administration); and (iv) all contributions, as defined in Section 4043 of ERISApremiums and other payments (including any special contribution, no prohibited transaction, as described in Section 406 of ERISA interest or Section 4975 of the Code, or failure to satisfy the minimum funding standards, within the meaning of Section 302 of ERISA and 412 of the Code, has occurred with respect to any Company Plan, and all contributions penalty) required to be made under the terms of any with respect to such material Company Benefit Plan have been timely made;made or, to the extent not required to be made or paid on or before the date hereof, have been fully reflected on the books and records of the applicable Target Company. All non-U.S. Company Benefit Plans that are required by the applicable Law to be funded or book-reserved are funded or book-reserved, as appropriate, in all material respects in accordance with such applicable Law. No Target Company has incurred any material obligation in connection with the termination of, or withdrawal from, any Company Benefit Plan.
(2d) each Each Company Benefit Plan that is intended to be meet the requirements of a “qualified plan” under Code Section 401(a) of the Code (A) has received a current favorable determination, determination or opinion or advisory and/or opinion letter, as applicable, letter from the IRS that it Internal Revenue Service or is so qualifiedthe subject of a current favorable determination or opinion or advisory letter issued by the Internal Revenue Service with respect to such Company Benefit Plan, (B) and, to the trust maintained thereunder has been determined to be exempt from taxation under Section 501(a) Knowledge of the Code and (C) to the Company’s knowledge, nothing has occurred since the date of such determination, opinion or advisory letter that could would be reasonably be expected likely to cause adversely affect the loss of such qualified status of any such Company Benefit Plan;
(3) there is no Action (including any investigation, audit or other administrative proceeding) by . Each material Company Benefit Plan intended to qualify for special tax status in a jurisdiction outside of the Department of Labor, the Pension Benefit Guaranty Corporation, the IRS or any other Governmental Entity or by any plan participant or beneficiary pending, or United States are registered as such to the knowledge of the Company, threatened, relating to the Company Plans, any fiduciaries thereof to which the Company could have an indemnification obligation with respect to their duties to the Company Plans or the assets of any of the trusts under any of the Company Plans (other than routine claims for benefits) nor, to the knowledge of the Company, are there facts or circumstances that exist that could reasonably be expect to give rise to any such Actions;
(4) no Company Plan is or, within the preceding six years, has been subject to Title IV of ERISA or subject to Section 412 of the Code and neither the Company nor any Person that is a member of a “controlled group of corporations” with, or is under “common control” with, or is a member of the same “affiliated service group” with the Company, in each case, as defined in Sections 414(b), (c), (m) or (o) of the Code, maintains or contributes to (or has in the past six years maintained or contributed to) a multiemployer plan as defined in Section 3(37) of ERISA or a Title IV Plan;
(5) the Company and its Subsidiaries are not subject to any material liability, including additional contributions, fine, penalties or loss of Tax Deductions as a result of the administration or operation of any Company Plan that is a “group health plan” (as such term is defined in Section 5000(b)(1) of the Code);
(6) no Company Plan provides welfare benefits, including death or medical benefits (whether or not insured) beyond retirement or termination of service, other than coverage mandated solely extent required by applicable Law;
(7) none of the Company Plans provides for payment of an amount or provision of a benefit, the increase of a payment or benefit, the payment of a contingent amount or provision of a contingent benefit, or the acceleration of the payment, funding or vesting of an amount or benefit determined or occasioned, in whole or in part, by reason of the execution of this Agreement or the consummation of the transactions contemplated hereby whether alone or together with any other event; and
(8) no amounts payable under the Company Plans will fail to be deductible for federal income tax purposes by virtue of Section 280G of the Code as a result of the occurrence of the transactions contemplated by this Agreement, either alone or in combination with another event.
(c) The Company Law and its Subsidiaries have not entered into any employment or employment-related agreements (including change in control agreements been documented and offer letters) to which a named individual is a party, other than those set forth on Section 3.13(a) of the Company Disclosure Letter.
(d) Each Company Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A of the Code and related Treasury Department guidance has (i) been operated between January 1, 2005 and December 31, 2008, in good faith compliance with Section 409A of the Code and Notice 2005-01 and (ii) since January 1, 2009 (or such later date permitted under applicable guidance), been operated in compliance, and is in documentary compliance, in all material respects, respects in compliance with the all requirements of Section 409A of the Codesuch special tax status.
(e) Neither The consummation of the Transactions will not: (i) entitle any individual to material severance pay, unemployment compensation or other material benefits or compensation whether under a Company nor any Subsidiary has a binding commitment to create any additional material Company PlanBenefit Plan or under applicable Law or otherwise; or (ii) accelerate the time of payment, vesting or funding, or increase the amount of any plan, agreement material compensation or arrangement that would be a material Company Plan if adoptedbenefits, or to modify or terminate any existing material Company Plan, except as required by applicable Law.
(f) The ESOP is an “employee stock ownership plan” within the meaning of Section 4975(e)(7) of the Code. Neither the Company nor the ESOP has, within the three year period immediately preceding the date of this Agreement, received any inquiry or notice from the IRS or any other governmental agency the effect of which is to question the qualification or status of the ESOP or any transaction entered into by the ESOP or the Company (with respect to the ESOP). The ESOP and the Company have filed all reports, returns or other documents in respect of, any director, employee or independent contractor of the ESOP which are required a Target Company or (iii) cause an amount to be filed pursuant received by any director, employee or independent contractor of a Target Company under any Company Benefit Plan or otherwise to fail to be deductible by reason of Code Section 280G or be subject to an excise Tax under Code Section 4999. No Company Benefit Plan provides for the applicable provisions gross-up or reimbursement of the Taxes under Code and ERISA and the regulations thereunder. All loans entered into by the ESOP (the “ESOP Loans”) constitute “exempt loans” under Treasury Regulation Section 54.4975-7(b)(1)(iii). The securities held by the ESOP constitute “employer securities” under ERISA Section 407(d)(1) and Section 409(l) of the Code and “qualifying employer securities” under ERISA Section 407(d)(5) and Section 4975(e)(8) of the CodeSections 409A or 4999.
Appears in 1 contract
Sources: Business Combination Agreement (GoGreen Investments Corp)
Benefit Plans. (a) Section 3.13(a4.14(a) of the Company Seller Disclosure Letter Schedule contains a true and complete list of each material Company Plan. For purposes of this Agreement, “Company Plan” means each all “employee benefit planplans” (within the meaning of as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended 1974 (“ERISA”))) and all other material employment, stock purchaseseverance, consulting, vacation benefits, post-retirement, bonus, stock option, severance, employment, change-in-control, fringe benefit, bonus, incentive, deferred and incentive compensation plans and programs covering employees or former employees of the Company (excluding workers’ compensation, employee loan or unemployment compensation and other employee benefit plan, agreement, program, policy or other arrangement, whether or not subject to ERISA government programs) (including any funding mechanism therefor now in effect or required in the future as a result all of the transactions contemplated foregoing collectively, the “Company Benefit Plans”). The Company does not have any plan or commitment to establish any new Company Benefit Plans, to modify any Company Benefit Plans (except to the extent required by this Agreement law or otherwise), whether written or unwrittento conform any such Company Benefit Plans to the requirements of any Applicable Law, in each case (i) maintained as previously disclosed to Buyer in writing, or as required by this Agreement), or to adopt or enter into any Company Benefit Plans. Except as may be permitted by Section 5.02(c), neither the Seller nor any ERISA Affiliate has any plan or commitment to establish, modify or adopt or enter into any Company or Benefit Plan in any of its Subsidiaries for current or former directors, manner that would provide materially greater benefits to employees or consultants of the Company or (ii) under which (A) any employee, director or consultant or former employee, director or consultant of the Company or any of and its Subsidiaries has any present or future right subsidiaries relative to benefits and (B) the Company or any of its Subsidiaries has had or has any present or future liability or obligation to contribute. With respect to each material Company Plan, the Company has furnished or made available to Parent a current, accurate and complete copy thereof, including any amendments, and, to the extent applicable: (i) any related trust agreement or other funding instrument, (ii) the most recent determination, opinion or advisory letter of the Internal Revenue Service (the “IRS”), if applicable, (iii) any summary plan description or other material written communications by the Company or its Subsidiaries to their employees concerning the extent of the benefits provided to other participants in such plan. Each Company Benefit Plan can be amended, terminated or otherwise discontinued after the Closing Date in accordance with its terms, without liability to Buyer or the Company (other than ordinary administration expenses) other than as specifically contemplated under a Company Plan and (iv) the most recent (A) Form 5500 and attached schedules, (B) audited financial statements, and (C) actuarial valuation reportsArticle IX of this Agreement.
(b) Except as disclosed in Section 3.13(b) of the Each Company Disclosure Letter and except as, individually or in the aggregate, has not had, and would not reasonably be expected to have, a Material Adverse Effect on the Company, with respect to the Company Plans:
(1) each Company Benefit Plan has been established and administered in accordance with its terms and is in compliance in all material respects with the applicable provisions of ERISA, the Code and all other applicable Laws, and in the six years preceding the date hereof no reportable event, as defined in Section 4043 of ERISA, no prohibited transaction, as described in Section 406 of ERISA or Section 4975 of the Code, or failure to satisfy the minimum funding standards, within the meaning of Section 302 of ERISA and 412 of the Code, has occurred with respect to any Company Plan, and all contributions required to be made under the terms of any Company Plan have been timely made;
(2) each Company Plan intended to be qualified under Section 401(a) of the Code (A) has received a favorable determination, advisory and/or opinion letter, as applicable, from the IRS that it is so qualified, (B) the trust maintained thereunder has been determined to be exempt from taxation under Section 501(a) of the Code and (C) to the Company’s knowledge, nothing has occurred since the date of such letter that could reasonably be expected to cause the loss of such qualified status of such Company Plan;
(3) there is no Action (including any investigation, audit or other administrative proceeding) by the Department of Labor, the Pension Benefit Guaranty Corporation, the IRS or any other Governmental Entity or by any plan participant or beneficiary pending, or to the knowledge of the Company, threatened, relating to the Company Plans, any fiduciaries thereof to which the Company could have an indemnification obligation with respect to their duties to the Company Plans or the assets of any of the trusts under any of the Company Plans (other than routine claims for benefits) nor, to the knowledge of the Company, are there facts or circumstances that exist that could reasonably be expect to give rise to any such Actions;
(4) no Company Plan is or, within the preceding six years, has been subject to Title IV of ERISA or subject to Section 412 of the Code and neither Applicable Laws. Neither the Company nor any Person that entity which is a member of considered a “controlled group of corporations” with, or is under “common control” with, or is a member of the same “affiliated service groupsingle employer” with the Company, in each case, as defined in Sections Company under Section 414(b), (c), (m) or (o) of the Code, Code (an “ERISA Affiliate”) maintains or contributes has an obligation to contribute to (or has in the past six years maintained or contributed toi) a “multiemployer plan as defined in Section 3(37) of ERISA or a Title IV Plan;
(5) the Company and its Subsidiaries are not subject to any material liability, including additional contributions, fine, penalties or loss of Tax Deductions as a result of the administration or operation of any Company Plan that is a “group health plan” (as such term is defined in Section 5000(b)(1) of the Code);
(6) no Company Plan provides welfare benefits, including death or medical benefits (whether or not insured) beyond retirement or termination of service, other than coverage mandated solely by applicable Law;
(7) none of the Company Plans provides for payment of an amount or provision of a benefit, the increase of a payment or benefit, the payment of a contingent amount or provision of a contingent benefit, or the acceleration of the payment, funding or vesting of an amount or benefit determined or occasioned, in whole or in part, by reason of the execution of this Agreement or the consummation of the transactions contemplated hereby whether alone or together with any other event; and
(8) no amounts payable under the Company Plans will fail to be deductible for federal income tax purposes by virtue of Section 280G of the Code as a result of the occurrence of the transactions contemplated by this Agreement, either alone or in combination with another event.
(c) The Company and its Subsidiaries have not entered into any employment or employment-related agreements (including change in control agreements and offer letters) to which a named individual is a party, other than those set forth on Section 3.13(a) of the Company Disclosure Letter.
(d) Each Company Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A 3(37) of ERISA, (ii) a plan described in Section 413 of the Code, (iii) a plan subject to Title IV of ERISA or (iv) a plan subject to the minimum funding standards of Section 412 of the Code. As of the date hereof, no actions, suits or claims (other than routine benefit claims) are pending or, to the knowledge of the Company, threatened against or relating to any Company Benefit Plan, or any fiduciary thereof. No Company Benefit Plan provides health benefits that are not fully insured through an insurance contract.
(c) True and correct copies of the following documents, as they have been amended to the date hereof, relating to the Company Benefit Plans, have been made available to Buyer: (i) all Company Benefit Plan documents; (ii) the most recently completed actuarial valuation for each plan (if any); and (iii) the annual report (Form 5500 series) for each Company Benefit Plan for the two most recent plan years (if any).
(d) No Company Benefit Plan provides, or reflects or represents any Company liability to provide, nor has the Company contracted in the last 5 years to provide, post-termination or retiree welfare benefits to any person for any reason, except as may be required by the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended and as codified in Section 4980B of the Code and related Treasury Department guidance has Section 601 et. seq. of ERISA or other applicable statute or in the nature of severance benefits (i) been operated between January 1including severance pay or otherwise, 2005 and December 31acceleration, 2008vesting or increase in benefits or obligation to fund benefits with respect to any employee, in good faith compliance with Section 409A of the Code and Notice 2005-01 and (ii) since January 1, 2009 (consultant or such later date permitted under applicable guidancedirector), been operated in compliance, and is in documentary compliance, in all material respects, with the requirements of Section 409A of the Code.
(e) Neither Pursuant to Treasury Regulation 1.280G-1, Q&A 29, no payment and/or benefits (considered separately or in the Company nor any Subsidiary has a binding commitment to create any additional material Company Plan, aggregate) paid or any plan, agreement or arrangement that would be a material Company Plan if adopted, or to modify or terminate any existing material Company Plan, except as required provided in connection with the transactions contemplated by applicable Law.
(f) The ESOP is an this Agreement shall constitute “employee stock ownership planparachute payments” within the meaning of Section 4975(e)(7) of the Code. Neither the Company nor the ESOP has, within the three year period immediately preceding the date of this Agreement, received any inquiry or notice from the IRS or any other governmental agency the effect of which is to question the qualification or status of the ESOP or any transaction entered into by the ESOP or the Company (with respect to the ESOP). The ESOP and the Company have filed all reports, returns or other documents in respect of the ESOP which are required to be filed pursuant to the applicable provisions of the Code and ERISA and the regulations thereunder. All loans entered into by the ESOP (the “ESOP Loans”) constitute “exempt loans” under Treasury Regulation Section 54.4975-7(b)(1)(iii). The securities held by the ESOP constitute “employer securities” under ERISA Section 407(d)(1) and Section 409(l) of the Code and “qualifying employer securities” under ERISA Section 407(d)(5) and Section 4975(e)(8) 280G of the Code.
Appears in 1 contract
Benefit Plans. (a) Section 3.13(a4.13(a)(i) of the Company Disclosure Letter contains lists all Benefit Plans, in each case, to which the Company, Company LP, any Company Subsidiary or any of their ERISA Affiliates is a true and complete list party, with respect to which the Company, Company LP, any Company Subsidiary or any of each material Company Plan. For purposes of this Agreement, “Company Plan” means each “employee benefit plan” their ERISA Affiliates has or could have any current or future obligation or liability (within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”)), stock purchase, stock option, severance, employment, change-in-control, fringe benefit, bonus, incentive, deferred compensation, employee loan or other employee benefit plan, agreement, program, policy or other arrangement, whether or not subject to ERISA (including any funding mechanism therefor now in effect or required in the future as a result of the transactions contemplated by this Agreement contingent or otherwise), whether written or unwrittenunder which any of the current or former employees, in each case (i) maintained by officers, directors or independent contractors of the Company, Company LP, any Company Subsidiary or any of its Subsidiaries for current or former directors, employees or consultants of the Company or their ERISA Affiliates (ii) under which (A) any employee, director or consultant or former employee, director or consultant of the Company or any of its Subsidiaries their dependents thereof) has any present or future right to compensation or benefits and (B) the Company all such plans, programs, arrangements, contracts or any of its Subsidiaries has had or has any present or future liability or obligation to contribute. With respect to each material Company Planagreements, collectively, the “Plans”). The Company has furnished or made available to Parent a current, accurate and complete copy thereof, including any amendments, andParent, to the extent applicable, copies, which are correct and complete in all material respects, of the following: (i) the Plans to the extent in written form (or to the extent not in written form, an accurate written description of all of the material terms of such Plan), (ii) the annual reports (Form 5500s) filed with the IRS for the last three plan years, (iii) the most recently received IRS determination letter or opinion letter, if any, relating to a Plan, (iv) the most recently prepared actuarial report or financial statement, if any, relating to a Plan, (v) the most recent summary plan description for such Plan and all modifications thereto, (vi) any related trust agreement or other funding instrument, and (iivii) all material correspondence with the most recent determinationDepartment of Labor, opinion the IRS or advisory letter any other governmental entity with respect to any Plan for the last three plan years. Except as set forth in Section 4.13(a)(ii) of the Internal Revenue Service (the “IRS”)Company Disclosure Letter, if applicable, (iii) any summary plan description or other material written communications by the Company sponsors no employee benefits plans for non-U.S. employees. Except as specifically provided in the foregoing documents delivered or its Subsidiaries made available to their employees concerning the extent Parent, there are no amendments to any Plan that have been adopted or approved, nor has the Company, Company LP or any Company Subsidiary undertaken to make any such amendments or to adopt or approve any new Plan and none of the benefits provided under a Company, Company Plan and (iv) the most recent (A) Form 5500 and attached schedulesLP, (B) audited financial statementsany Company Subsidiary or any of their ERISA Affiliates has any commitment to establish any new benefit plan, and (C) actuarial valuation reportsprogram or arrangement.
(b) Each Plan has been established, funded and operated in all material respects in accordance with its terms and the requirements of all applicable Laws, including ERISA and the Code. Except as disclosed in Section 3.13(b) of the Company Disclosure Letter and except as, individually or in the aggregate, has not had, and would not reasonably be expected to have, result in a Material Adverse Effect on material liability to the Company, with respect to the Company Plans:
(1) each LP or any Company Plan has been established and administered in accordance with its terms and in compliance with the applicable provisions of ERISA, the Code and all other applicable Laws, and in the six years preceding the date hereof no reportable event, as defined in Section 4043 of ERISASubsidiary, no non-exempt “prohibited transaction, as described in Section 406 of ERISA or Section 4975 of the Code, or failure to satisfy the minimum funding standards, ,” within the meaning of Section 302 of ERISA and 412 4975 of the CodeCode or Section 406 of ERISA, has occurred with respect to any Company Plan, and all contributions required to be made under the terms of . Each Plan that is in any Company Plan have been timely made;
part a “nonqualified deferred compensation plan” (2) each Company Plan intended to be qualified under as defined in Section 401(a409A(d)(1) of the Code (ACode) has received a favorable determinationbeen operated and maintained since January 1, advisory and/or opinion letter, as applicable, from the IRS that it is so qualified, (B) the trust maintained thereunder has been determined to be exempt from taxation under 2005 in compliance with Section 501(a) 409A of the Code and (Cthe regulations and other administrative guidance promulgated thereunder. Except as set forth on Section 4.13(b) of the Company Disclosure Letter, no individual is entitled to any gross-up, make-whole or other additional payment from the Company’s knowledge, nothing has occurred since Company LP or any Company Subsidiary in respect of any tax (including Federal, state, local or foreign income, excise or other taxes (including taxes imposed under Section 409A or Section 4999 of the date of such letter that could reasonably be expected to cause the loss of such qualified status of such Company Plan;
(3Code)) there is no or interest or penalty related thereto. No Action (including any investigation, audit or other administrative proceeding) by the Department of Laboris pending or, the Pension Benefit Guaranty Corporation, the IRS or any other Governmental Entity or by any plan participant or beneficiary pending, or to the knowledge Knowledge of the Company, threatenedthreatened or anticipated, relating to the Company Plans, any fiduciaries thereof to which the Company could have an indemnification obligation with respect to their duties to the Company Plans or the assets of any of the trusts under any of the Company Plans Plan (other than routine claims for benefitsbenefits in the ordinary course) nor, to the knowledge of the Company, nor are there facts or circumstances that exist that could reasonably be expect to give rise to any such Actions;actions.
(4c) Each Plan that is intended to be qualified under Section 401(a) of the Code has received a favorable determination letter from the IRS that the Company, Company LP and each Company Subsidiary is currently entitled to rely upon, or is entitled to rely on a favorable opinion issued by the IRS, and except as would not reasonably be expected to have a Company Material Adverse Effect, no fact or event has occurred since the date of such determination letter or letters from the IRS that would reasonably be expected to adversely affect the qualified status of any such Plan.
(d) None of the Company Plan is or, within the preceding six yearsnor any ERISA Affiliate, has been ever sponsored, maintained or had any obligation with respect to any employee benefit plan that (i) is subject to the provisions of Section 302 or Title IV of ERISA or subject to Section 412 of the Code and neither the Company nor any Person that is a member of a “controlled group of corporations” with, or is under “common control” with, or is a member of the same “affiliated service group” with the Company, in each case, as defined in Sections 414(b), (c), (m) or (o) of the Code, maintains or contributes to (or has in the past six years maintained or contributed to) a multiemployer plan as defined in Section 3(37) of ERISA or a Title IV Plan;
(5) the Company and its Subsidiaries are not subject to any material liability, including additional contributions, fine, penalties or loss of Tax Deductions as a result of the administration or operation of any Company Plan that is a “group health plan” (as such term is defined in Section 5000(b)(1) of the Code);
(6) no Company Plan provides welfare benefits, including death or medical benefits (whether or not insured) beyond retirement or termination of service, other than coverage mandated solely by applicable Law;
(7) none of the Company Plans provides for payment of an amount or provision of a benefit, the increase of a payment or benefit, the payment of a contingent amount or provision of a contingent benefit, or the acceleration of the payment, funding or vesting of an amount or benefit determined or occasioned, in whole or in part, by reason of the execution of this Agreement or the consummation of the transactions contemplated hereby whether alone or together with any other event; and
(8) no amounts payable under the Company Plans will fail to be deductible for federal income tax purposes by virtue of Section 280G of the Code as a result of the occurrence of the transactions contemplated by this Agreement, either alone or in combination with another event.
(c) The Company and its Subsidiaries have not entered into any employment or employment-related agreements (including change in control agreements and offer letters) to which a named individual is a party, other than those set forth on Section 3.13(a) of the Company Disclosure Letter.
(d) Each Company Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A of the Code and related Treasury Department guidance has (i) been operated between January 1, 2005 and December 31, 2008, in good faith compliance with Section 409A of the Code and Notice 2005-01 and (ii) since January 1, 2009 (or such later date permitted under applicable guidance), been operated in compliance, and is in documentary compliance, in all material respects, with the requirements of Section 409A of the Code.
(e) Neither the Company nor any Subsidiary has a binding commitment to create any additional material Company Plan, or any plan, agreement or arrangement that would be a material Company Plan if adopted, or to modify or terminate any existing material Company Plan, except as required by applicable Law.
(f) The ESOP is an “employee stock ownership plan” plan within the meaning of Section 4975(e)(7) of the Code, (iii) is a voluntary employee beneficiary association, (iv) is a multiemployer plan within the meaning of Section 3(37) of ERISA, (v) is a multiple employer plan as defined in Section 413 of the Code, or (vi) is a “funded welfare plan” within the meaning of Section 419 of the Code. Neither None of the Company nor the ESOP has, within the three year period immediately preceding the date any ERISA Affiliate has ever incurred or reasonably expects to incur any material liability pursuant to Title I or Title IV of this Agreement, received ERISA (including any inquiry or notice from the IRS Controlled Group Liability) or any other governmental agency the effect of which is foreign Law or regulation relating to question the qualification employee benefit plans, whether contingent or status otherwise. Except as set forth on Section 4.13(d) of the ESOP Company Disclosure Letter, neither the Company nor any Company Subsidiary has any obligation with respect to any employee benefit plan that provides for any post-employment or post-retirement health or medical or life insurance benefits for retired, former or current employees of the Company, Company LP or any transaction entered into Company Subsidiary, except as required by Section 4980B of the ESOP Code or similar state Law.
(e) Except as set forth in Section 4.13(e)(i) of the Company (Disclosure Letter or as otherwise specifically contemplated by this Agreement with respect to the ESOPCompany Equity Awards, neither the execution or delivery of this Agreement nor the consummation of the Mergers and the transactions contemplated hereby will (either alone or in conjunction with any other event (whether contingent or otherwise)) result in or cause the vesting, exercisability, funding, acceleration of payment or delivery of, or increase in the amount or value of, any payment, right or other benefit otherwise due to any current or former employee, officer, director or other service provider of the Company or any ERISA Affiliate. Except as set forth in Section 4.13(e)(ii) of the Company Disclosure Letter, neither the execution or delivery of this Agreement nor the consummation of the Mergers and the transactions contemplated hereby will (either alone or in conjunction with any other event (whether contingent or otherwise)) (x) entitle any current or former employee, officer, director or service provider of Company or any ERISA Affiliate to severance pay, unemployment compensation or any other similar termination payment, or (y) result in any amount failing to be deductible by reason of Section 280G of the Code. Except as set forth in Section 4.13(e)(iii) of the Company Disclosure Letter, neither the Company nor any ERISA Affiliate has any indemnity obligation on or after the Effective Time for any Taxes imposed under Section 4999 or 409A of the Code. The ESOP Company has provided Parent with reasonable estimates of the potential excess parachute payments (within the meaning of Section 280G of the Code), if any, paid or payable by the Company, Company LP or any Company Subsidiary in connection with the transactions contemplated by this Agreement, either as a result of the transactions contemplated by this Agreement or in conjunction with any other event.
(f) With respect to each Plan, all contributions (including all employer contributions and employee salary reduction contributions) that are due have been made within the time periods prescribed by ERISA and the Code and applicable Law, and all contributions for any period ending on or before the Closing Date that are not yet due have been made or properly accrued in accordance with GAAP.
(g) Any individual who performs services for the Company, Company have filed all reportsLP or any Company Subsidiary and who is not treated as an employee for federal income tax purposes by the Company or the Company Subsidiaries is not an employee under applicable Law for any purpose including, returns without limitation, for tax withholding purposes or other documents in respect Plan purposes. Each of the ESOP which are required Company, Company LP and each Company Subsidiary has no material liability by reason of an individual who performs or performed services for the Company, Company LP or any Company Subsidiary in any capacity being improperly excluded from participating in any Plan or any person being improperly allowed to be filed pursuant to participate in any Plan.
(h) For purposes of this Section 4.13(h), “Controlled Group Liability” means any and all liabilities (i) under Title IV of ERISA, (ii) under Section 302 of ERISA, (iii) under Sections 412 and 4971 of the applicable provisions Code, (iv) resulting from a violation of the continuation coverage requirements of Section 601 et seq. of ERISA and Section 4980B of the Code or the group health plan requirements of Sections 601 et seq. of the Code and ERISA Section 601 et seq. of ERISA, and the regulations thereunder. All loans entered into by the ESOP (the “ESOP Loans”v) constitute “exempt loans” under Treasury Regulation Section 54.4975-7(b)(1)(iii). The securities held by the ESOP constitute “employer securities” under ERISA Section 407(d)(1) and Section 409(l) corresponding or similar provisions of the Code and “qualifying employer securities” under ERISA Section 407(d)(5) and Section 4975(e)(8) of the Codeforeign Laws or regulations.
Appears in 1 contract
Benefit Plans. (a) Section 3.13(aSchedule 3.19(a) of the Company Disclosure Letter contains a true and complete list of each Schedule sets forth all material Company Plan. For purposes of this Agreement, “Company Plan” means each “employee benefit plan” plans, programs, policies, practices, agreements and arrangements (within the meaning of including, but not limited to, all plans described in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”)), stock purchase, stock option, severance, employment, change-in-control, fringe benefit, bonus, incentive, deferred compensation, employee loan or other employee benefit plan, agreement, program, policy or other arrangement, whether or not subject to ERISA (including any funding mechanism therefor now in effect or required in the future as a result of the transactions contemplated by this Agreement or otherwise), whether written or unwritten, in each case (i) maintained or contributed to by the Company or for the benefit of any of its Subsidiaries for current or former directorsofficers, employees employees, directors or consultants of the Company independent contractors, or (ii) under which (A) any employee, director or consultant or former employee, director or consultant of the Company or any of its Subsidiaries has any present or future right to benefits and (B) the Company or any of its Subsidiaries has had or has any present or future liability or obligation to contribute. With with respect to each material Company Plan, which the Company has furnished (or made available to Parent a current, accurate and complete copy thereof, including any amendments, and, to the extent applicable: (i) any related trust agreement or other funding instrument, (ii) the most recent determination, opinion or advisory letter of the Internal Revenue Service (the “IRS”), if applicable, (iii) any summary plan description or other material written communications by the Company or its Subsidiaries to their employees concerning the extent of the benefits provided under a Company Plan and (iv) the most recent (A) Form 5500 and attached schedules, (B) audited financial statements, and (C) actuarial valuation reports.
(b) Except as disclosed in Section 3.13(b) of the Company Disclosure Letter and except as, individually or in the aggregate, has not had, and would not reasonably could be expected to have) any obligation or liability (including, a Material Adverse Effect on the Companybut not limited to, with respect to the Company Plans:
(1) each Company Plan has been established and administered in accordance with its terms and in compliance with the applicable provisions of ERISA, the Code and all other applicable Laws, and in the six years preceding the date hereof no reportable event, as defined in Section 4043 of ERISA, no prohibited transaction, as described in Section 406 of ERISA or Section 4975 of the Code, or failure to satisfy the minimum funding standards, within the meaning of Section 302 of ERISA and 412 of the Code, has occurred with respect to any Company Plan, and all contributions required to be made under the terms of any Company Plan have been timely made;
(2) each Company Plan intended to be qualified liabilities arising from affiliation under Section 401(a) of the Code (A) has received a favorable determination, advisory and/or opinion letter, as applicable, from the IRS that it is so qualified, (B) the trust maintained thereunder has been determined to be exempt from taxation under Section 501(a) of the Code and (C) to the Company’s knowledge, nothing has occurred since the date of such letter that could reasonably be expected to cause the loss of such qualified status of such Company Plan;
(3) there is no Action (including any investigation, audit or other administrative proceeding) by the Department of Labor, the Pension Benefit Guaranty Corporation, the IRS or any other Governmental Entity or by any plan participant or beneficiary pending, or to the knowledge of the Company, threatened, relating to the Company Plans, any fiduciaries thereof to which the Company could have an indemnification obligation with respect to their duties to the Company Plans or the assets of any of the trusts under any of the Company Plans (other than routine claims for benefits) nor, to the knowledge of the Company, are there facts or circumstances that exist that could reasonably be expect to give rise to any such Actions;
(4) no Company Plan is or, within the preceding six years, has been subject to Title IV of ERISA or subject to Section 412 of the Code and neither the Company nor any Person that is a member of a “controlled group of corporations” with, or is under “common control” with, or is a member of the same “affiliated service group” with the Company, in each case, as defined in Sections 414(b), (c), (m) or (o) of the Code, maintains or contributes Section 4001 of ERISA) (each, a “Benefit Plan” and collectively, the “Benefit Plans”). Except as disclosed on Schedule 3.19 of the Disclosure Schedule, there has been no amendment or announcement (written or oral) by the Company relating to (a change in participation or has coverage under, any Benefit Plan that could reasonably be expected to materially increase the expense of maintaining such Benefit Plan above the level of expense incurred with respect thereto for the most recent fiscal year included in the past six years maintained or contributed to) a multiemployer plan as defined in financial statements provided pursuant to Section 3(37) of ERISA or a Title IV Plan;
(5) 3.7. Each Benefit Plan can be terminated by the Company and its Subsidiaries are not subject to at any time without material liability, including additional contributions, fine, penalties liability or loss expense (other than for any benefits accrued thereunder at the time of Tax Deductions as a result such termination). None of the administration or operation of any Company Plan that is a “group health plan” (as such term is defined in Section 5000(b)(1) of the Code);
(6) no Company Plan provides welfare benefits, including death or medical benefits (whether or not insured) beyond retirement or termination of service, other than coverage mandated solely by applicable Law;
(7) none rights of the Company Plans provides for payment of an amount or provision of a benefit, the increase of a payment or benefit, the payment of a contingent amount or provision of a contingent benefit, or the acceleration of the payment, funding or vesting of an amount or benefit determined or occasioned, under any Benefit Plan will be impaired in whole or in part, any way by reason of the execution of this Agreement or the consummation of the transactions contemplated hereby whether alone or together with any other event; and
(8) no amounts payable under the Company Plans will fail to be deductible for federal income tax purposes by virtue of Section 280G of the Code as a result of the occurrence of the transactions contemplated by this Agreement, either alone or in combination with another event.
(cb) The Company and its Subsidiaries have not entered into any employment or employment-related agreements (including change in control agreements and offer letters) With respect to which a named individual is a partyeach Benefit Plan, other than those set forth on Section 3.13(a) of the Company Disclosure Letter.
has made available to the Buyer (dto the extent applicable to such Benefit Plan) Each Company Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A of the Code true and related Treasury Department guidance has complete copies of: (i) been operated between January 1all documents embodying such Benefit Plan (including all amendments thereto) or, 2005 and December 31if such Benefit Plan is not in writing, 2008, in good faith compliance with Section 409A a written description of the Code and Notice 2005-01 and such Benefit Plan; (ii) since January 1, 2009 the last three annual reports (or such later date permitted under applicable guidance), been operated in compliance, Form 5500 series and is in documentary compliance, in all material respects, with the requirements of Section 409A of the Code.
(eschedules and financial statements attached thereto) Neither the Company nor any Subsidiary has a binding commitment to create any additional material Company Plan, or any plan, agreement or arrangement that would be a material Company Plan if adopted, or to modify or terminate any existing material Company Plan, except as required by applicable Law.
(f) The ESOP is an “employee stock ownership plan” within the meaning of Section 4975(e)(7) of the Code. Neither the Company nor the ESOP has, within the three year period immediately preceding the date of this Agreement, received any inquiry or notice from the IRS or any other governmental agency the effect of which is to question the qualification or status of the ESOP or any transaction entered into by the ESOP or the Company (filed with respect to such Benefit Plan; (iii) the ESOP). The ESOP most recent summary plan description, and the Company have filed all reportssummaries of material modifications related thereto, returns or other documents in distributed with respect of the ESOP which are required to be filed pursuant such Benefit Plan; (iv) all contracts and agreements (and any amendments thereto) relating to the applicable provisions of the Code such Benefit Plan, including, without limitation, all trust agreements, investment management agreements, annuity contracts, insurance contracts, bonds, indemnification agreements and ERISA and the regulations thereunder. All loans entered into by the ESOP (the “ESOP Loans”) constitute “exempt loans” under Treasury Regulation Section 54.4975-7(b)(1)(iii). The securities held by the ESOP constitute “employer securities” under ERISA Section 407(d)(1) and Section 409(l) of the Code and “qualifying employer securities” under ERISA Section 407(d)(5) and Section 4975(e)(8) of the Code.service provider agreements;
Appears in 1 contract
Sources: Stock Purchase Agreement
Benefit Plans. (a) Section 3.13(a) of the Company Seller Disclosure Letter contains sets forth a true and complete list list, as of each material Company Plan. For purposes the date of this Agreement, of each material Benefit Plan and identifies with an asterisk each such Benefit Plan that is an Assumed Benefit Plan and identifies the jurisdiction in which each material Benefit Plan is maintained. With respect to each material Seller Benefit Plan, Seller has delivered or made available to Purchaser, as of the date of this Agreement and to the extent applicable, true and complete copies of (i) the plan document, including any amendment thereto, or in the case of any unwritten material Seller Benefit Plan, a description of the material terms thereof, and (ii) the most recent IRS determination, opinion, or advisory letter. With respect to each material Assumed Benefit Plan, Seller has delivered or made available to Purchaser, as of the date of this Agreement and to the extent applicable, true and complete copies of (A) the plan document, including any amendment thereto, or in the case of any unwritten material Assumed Benefit Plan, a description of the material terms thereof, (B) the most recent IRS determination, opinion, or advisory letter, (C) the three most recently filed annual reports on Form 5500 or similar reports, statements, or information returns required to be filed with or delivered to any Governmental Entity, (D) each related trust, insurance, annuity, or other funding or administrative Contract, (E) the most recent actuarial or other valuation reports, (F) the most recent summary plan description and subsequent summaries of material modifications thereto, (G) annual testing results (including with respect to coverage and nondiscrimination testing) for the three (3) most recently completed plan years, and (H) all non-routine correspondence received from or provided to any Governmental Entity within the past six (6) years, in each case, except to the extent prohibited under applicable Privacy and Security Laws or any other obligations to maintain the confidentiality of such information under applicable Law.
(b) Except as set forth on Section 3.13(b) of the Seller Disclosure Letter, no Benefit Plan is, and neither any Group Company nor Seller or any ERISA Affiliate, has in the past six (6) years maintained, sponsored, contributed to, or been required to contribute to, or has (or has had within the past six (6) years) any Liability with respect to, a plan that is subject to Title IV of ERISA or the minimum funding requirements of Section 412 of the Code or Section 302 of ERISA (each, a “Pension Plan”) or a “multiemployer plan” (as defined in Section 3(37) of ERISA). No Assumed Benefit Plan is a Pension Plan. With respect to each Pension Plan, in the past six (6) years: (i) no proceeding has been initiated to terminate such Pension Plan, (ii) there has been no “reportable event” (as such term is defined in Section 4043(b) of ERISA), (iii) each required installment or any other payment required under Section 412 of the Code or Section 303 of ERISA has been made before the applicable due date, (iv) all amounts due to the Pension Benefit Guaranty Corporation (the “PBGC”) pursuant to Section 4007 of ERISA have been timely paid, (v) neither Seller, any Group Company, nor any ERISA Affiliate has, or has received notice from the PBGC of, any outstanding Liability under Sections 4062, 4063, or 4064 of ERISA to the PBGC or to a trustee appointed under Section 4042 of ERISA, and (vi) there has not been incurred any “accumulated funding deficiency” (as defined in Section 302 of ERISA and Section 412 of the Code). With respect to each Pension Plan, (A) no Liability, including any Liability under Title IV or Section 302 of ERISA, has been incurred by Seller, any Group Company, or any ERISA Affiliate which has been, is, or could reasonably be expected to become, a Liability of any Group Company, (B) no outstanding “withdrawal liability” (as defined in Section 4201 or 4204 of ERISA, as applicable) exists, and (C) the transactions contemplated by the Agreement will not result in the imposition of any such withdrawal liability on Seller, any Group Company, or any ERISA Affiliate.
(c) No Assumed Benefit Plan is or is funded by, and no Group Company Planhas ever maintained, contributed to, been required to contribute to, or had any Liability with respect to, any (i) “multiple employer welfare arrangement” means each (as defined in Section 3(40)(A) of ERISA), (ii) “employee benefit planvoluntary employees’ beneficiary association” (within the meaning of Section 3(3501(c)(9) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”)Code), stock purchase, stock option, severance, employment, change-in-control, fringe benefit, bonus, incentive, deferred compensation, employee loan or other employee benefit plan, agreement, program, policy or other arrangement, whether or not subject to ERISA (including any funding mechanism therefor now in effect or required in the future as a result of the transactions contemplated by this Agreement or otherwise), whether written or unwritten, in each case (i) maintained by the Company or any of its Subsidiaries for current or former directors, employees or consultants of the Company or (ii) under which (A) any employee, director or consultant or former employee, director or consultant of the Company or any of its Subsidiaries has any present or future right to benefits and (B) the Company or any of its Subsidiaries has had or has any present or future liability or obligation to contribute. With respect to each material Company Plan, the Company has furnished or made available to Parent a current, accurate and complete copy thereof, including any amendments, and, to the extent applicable: (i) any related trust agreement or other funding instrument, (ii) the most recent determination, opinion or advisory letter of the Internal Revenue Service (the “IRS”), if applicable, (iii) any summary plan description or other material written communications by the Company or its Subsidiaries to their employees concerning the extent of the benefits provided under a Company Plan and (iv) the most recent (A) Form 5500 and attached schedules, (B) audited financial statements, and (C) actuarial valuation reportsself-insured welfare benefit arrangement.
(bd) Except for any routine, uncontested claim for benefits or as disclosed in Section 3.13(b) of the Company Disclosure Letter and except aswould not, individually or in the aggregate, has not hadreasonably be expected to be material to the Business, and would there is no Proceeding pending or, to the Knowledge of Seller, threatened relating to any Benefit Plan. No Assumed Benefit Plan (or, except as could not reasonably be expected to have, a Material Adverse Effect on the result in Liability to any Group Company, with respect any Seller Benefit Plan) has been the subject of an audit, investigation, inquiry, or examination by any Governmental Entity.
(e) Except as set forth on Section 3.13(e) of the Seller Disclosure Letter, no Benefit Plan provides or is obligated to provide health, medical or other welfare benefits after retirement or other termination of employment (other than for continuation coverage required by COBRA) to any current or former Employee of the Business. Except as would not, individually or in the aggregate, reasonably be expected to be material to the Business, (i) no Group Company Plans:has any Liability on account of a violation of COBRA (including by an ERISA Affiliate), (ii) the Group Companies have complied in all respects with the Patient Protection and Affordable Care Act, including, to the extent applicable, the employer shared responsibility provisions relating to the offer of “affordable” health coverage that provides “minimum essential coverage” to all “full-time” employees (as those terms are defined in Section 4980H of the Code and related regulations) and the applicable employer information reporting requirements under Code Section 6055 and Code Section 6056 and related regulations, and (iii) the Group Companies have complied in all respects with the security requirements of the Health Insurance Portability and Accountability Act of 1996.
(1f) Except as would not, individually or in the aggregate, reasonably be expected to be material to the Business, each Company Benefit Plan and its related trust, insurance contract or other funding vehicle has been established adopted and maintained and administered in all material respects in accordance with its terms and in compliance with the applicable provisions of ERISA, the Code and all other applicable Laws. Except as could not reasonably be expected to result in material Liability to the Business, Seller and its Affiliates are in the six years preceding the date hereof no reportable event, as defined in Section 4043 of compliance with ERISA, no prohibited transaction, as described in Section 406 of ERISA or Section 4975 of the Code, or failure to satisfy the minimum funding standards, within the meaning of Section 302 of ERISA and 412 of the Code, has occurred with respect to any Company Plan, Code and all contributions required other Laws applicable to be made under the terms of any Company Benefit Plans. Each Benefit Plan have been timely made;
(2) each Company Plan that is intended to be qualified under Section 401(a) of the Code (A) is so qualified and has received a currently effective favorable determination, advisory and/or opinion letter, as applicable, determination letter from the IRS IRS, or is entitled to rely on a currently effective opinion or advisory letter from the IRS, to the effect that it such Benefit Plan is so qualified, (B) the trust maintained thereunder has been determined to be exempt from taxation under Section 501(a) of the Code and (C) to the Company’s knowledge, nothing has occurred since the date of such letter that could reasonably be expected to cause the loss of adversely affect such qualified status of such Company status. Each Assumed Benefit Plan (and each Seller Benefit Plan;
(3) there is no Action (including , as it relates to any investigation, audit current or other administrative proceeding) by the Department of Labor, the Pension Benefit Guaranty Corporation, the IRS or any other Governmental Entity or by any plan participant or beneficiary pending, or to the knowledge former Service Provider of the Company, threatened, relating to the Company Plans, any fiduciaries thereof to which the Company could have an indemnification obligation with respect to their duties to the Company Plans or the assets of any of the trusts under any of the Company Plans (other than routine claims for benefitsBusiness) nor, to the knowledge of the Company, are there facts or circumstances that exist that could reasonably be expect to give rise to any such Actions;
(4) no Company Plan is or, within the preceding six years, has been subject to Title IV of ERISA or subject to Section 412 of the Code and neither the Company nor any Person that is a member of a “controlled group of corporations” with, or is under “common control” with, or is a member of the same “affiliated service group” with the Company, in each case, as defined in Sections 414(b), (c), (m) or (o) of the Code, maintains or contributes to (or has in the past six years maintained or contributed to) a multiemployer plan as defined in Section 3(37) of ERISA or a Title IV Plan;
(5) the Company and its Subsidiaries are not subject to any material liability, including additional contributions, fine, penalties or loss of Tax Deductions as a result of the administration or operation of any Company Plan that is a “group health plan” (as such term is defined in Section 5000(b)(1) of the Code);
(6) no Company Plan provides welfare benefits, including death or medical benefits (whether or not insured) beyond retirement or termination of service, other than coverage mandated solely by applicable Law;
(7) none of the Company Plans provides for payment of an amount or provision of a benefit, the increase of a payment or benefit, the payment of a contingent amount or provision of a contingent benefit, or the acceleration of the payment, funding or vesting of an amount or benefit determined or occasioned, in whole or in part, by reason of the execution of this Agreement or the consummation of the transactions contemplated hereby whether alone or together with any other event; and
(8) no amounts payable under the Company Plans will fail to be deductible for federal income tax purposes by virtue of Section 280G of the Code as a result of the occurrence of the transactions contemplated by this Agreement, either alone or in combination with another event.
(c) The Company and its Subsidiaries have not entered into any employment or employment-related agreements (including change in control agreements and offer letters) to which a named individual is a party, other than those set forth on Section 3.13(a) of the Company Disclosure Letter.
(d) Each Company Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A of the Code and related Treasury Department guidance has (i) been operated between January 1administered, 2005 and December 31, 2008, in good faith compliance with Section 409A of the Code and Notice 2005-01 and (ii) since January 1, 2009 (or such later date permitted under applicable guidance), been operated in complianceoperated, and is in documentary compliance, maintained in all material respects, with respects according to the requirements of Section 409A of the Code, and no amount under any such Benefit Plan has been subject to any Tax as a result of a failure to comply with Section 409A of the Code.
(eg) Neither Except as would not, individually or in the Company nor aggregate, reasonably be expected to be material to the Business, (i) all benefits, contributions, premiums, and distributions with respect to each Benefit Plan have been (A) timely paid in accordance with the terms of such Benefit Plan and applicable Law, to the extent required or due under such terms or applicable Law, or (B) paid or appropriately accrued, to the extent required by GAAP and not yet required or due under such terms or applicable Law, (ii) no event has occurred with respect to any Subsidiary has a binding commitment to create any additional material Company Benefit Plan, or any plan, agreement or arrangement that would be a material Company Plan if adoptedhas resulted in, or could reasonably be expected to modify or terminate result in, a Tax imposed on any existing material Group Company Planunder Chapter 43 of the Code , except as required by applicable Law.
and (fiii) The ESOP is an “employee stock ownership plan” to the Knowledge of Seller, no fiduciary (within the meaning of Section 4975(e)(73(21) of ERISA) of any Benefit Plan subject to Part 4 of Subtitle B of Title I of ERISA has committed a breach of fiduciary duty with respect to such Benefit Plan that would reasonably be expected to subject any Group Company to any Liability. There has been no non-exempt “prohibited transaction” (as defined in Section 4975 of the Code) with respect to any Benefit Plan, for which any Group Company would reasonably be expected to have any material Liability.
(h) Each Assumed Benefit Plan and, except as could not reasonably be expected to result in Liability to any Group Company, each Seller Benefit Plan, in each case maintained outside of the United States (each, a “Non-U.S. Benefit Plan”), that is required to be registered has been registered and has been maintained in all material respects in good standing with applicable Governmental Entities. Each Non-U.S. Benefit Plan that is intended to qualify for special tax treatment has been determined to qualify for such treatment in all material respects. All material filings required to be made to any Governmental Entity or instrumentality with respect to any Non-U.S. Benefit Plan have been timely made. Each Non-U.S. Benefit Plan that is intended to be funded or book-reserved is fully funded or book-reserved, as appropriate, based upon reasonable actuarial assumptions, and Seller and its Affiliates have complied with applicable obligations under applicable non-U.S. Law with respect to such Non-U.S. Benefit Plans, except as would not, individually or in the aggregate, reasonably be expected to be material to the Business. No Non-U.S. Benefit Plan is a “registered pension plan”, “retirement compensation arrangement” or “salary deferral arrangement”, as such terms are defined in the Income Tax Act (Canada). No Non-U.S. Benefit Plan provides, or is obligated to provide, health, medical or other welfare benefits after retirement or other termination of employment to any current or former Employee of the Business primarily located in Canada.
(i) Except as set forth on Section 3.13(i) of the CodeSeller Disclosure Letter, neither the execution and delivery of this Agreement nor the consummation of the Transactions will (alone or in combination with any other event), except as expressly contemplated by this Agreement, (i) entitle any current or former Service Provider of the Business to, or require any Group Company to provide, any compensation or benefit under any Benefit Plans, (ii) accelerate the time of payment or vesting, or trigger any payment or funding, of any compensation or benefits in respect of any current or former Service Provider of the Business or under any Benefit Plan, or (iii) result in any breach or violation of, default under, or limit on any Group Company’s right to amend, modify or terminate, any Assumed Benefit Plan. Neither the Company execution and delivery of this Agreement nor the ESOP has, consummation of the Transactions will (alone or in combination with any other event) result in any “excess parachute payment” (within the three year period immediately preceding meaning of Section 280G of the date Code) becoming due to any current or former Service Provider of this Agreement, received the Business or payable by any inquiry Group Company. No current or notice former Service Provider of the Business is entitled to receive from the IRS Seller or any other governmental agency of its Affiliates, and no Group Company has any obligation to provide to any Person, any gross-up or additional payment in respect of any Taxes (including the effect of which is to question the qualification Taxes required under Section 409A or status Section 4999 of the ESOP Code).
(j) No Seller Benefit Plan will transfer, in whole or in part, to any transaction entered into by Group Company in connection with the ESOP Transactions. Upon and following the Principal Closing, Purchaser and its Affiliates will have no Liability under or the Company (with respect to the ESOP). The ESOP and the Company have filed all reports, returns or other documents in respect of the ESOP which are required to be filed pursuant to the applicable provisions of the Code and ERISA and the regulations thereunder. All loans entered into by the ESOP (the “ESOP Loans”) constitute “exempt loans” under Treasury Regulation Section 54.4975-7(b)(1)(iii). The securities held by the ESOP constitute “employer securities” under ERISA Section 407(d)(1) and Section 409(l) of the Code and “qualifying employer securities” under ERISA Section 407(d)(5) and Section 4975(e)(8) of the Codeany Seller Benefit Plan.
Appears in 1 contract
Benefit Plans. (a) Section 3.13(a3.10(a) of the Company Disclosure Letter contains sets forth a true and complete list of each material Company Plan. For purposes of this Agreement, “Company Plan” means each “employee benefit plan” (within the meaning of Section 3(3) other than any employment, termination or severance letter or agreement for non-officer employees of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”)), stock purchase, stock option, severance, employment, change-in-control, fringe benefit, bonus, incentive, deferred compensation, employee loan Company or other employee benefit plan, agreement, program, policy or other arrangement, whether or not subject to ERISA (including any funding mechanism therefor now in effect or required in the future as a result of the transactions contemplated by this Agreement or otherwise), whether written or unwrittenits Subsidiaries and equity award grant notices and agreements, in each case (i) maintained by to the Company or any extent documented on the Company’s standard forms made available to Parent and agreements with consultants entered into in the ordinary course of its Subsidiaries for current or former directors, employees or consultants of the Company or (ii) under which (A) any employee, director or consultant or former employee, director or consultant of the Company or any of its Subsidiaries has any present or future right to benefits and (B) the Company or any of its Subsidiaries has had or has any present or future liability or obligation to contributebusiness. With respect to each material Company Plan, the Company has furnished or made available to Parent a current, accurate and complete copy thereofthereof (or a description of any such unwritten Company Plan), including any amendmentsamendments thereto, and, to the extent applicable: (i) any related trust agreement or other funding instrument, (ii) the most recent determination, opinion determination or advisory letter of the Internal Revenue Service (the “IRS”), if applicable, (iii) any summary plan description or description, summary of material modifications and other material equivalent written communications by the Company or its Subsidiaries to their employees concerning the extent of the benefits provided under a such Company Plan and Plan, (iv) any communications 18 with Government Entities concerning such Company Plan during the three (3) most recent years, (v) the nondiscrimination, coverage and other IRS limit testing reports for the three (3) most recent plan years, (vi) any agreements in effect between the Company or Subsidiary and any third party related to the insurance, funding, administration or operation of such Company Plan, including third party administration or professional employer organization agreements and (vii) if applicable, for the two most recent years (A) the Form 5500 and attached schedules, (B) audited financial statements, statements and (C) actuarial valuation reports. Since January 1, 2021, neither the Company nor its Subsidiaries have received any notice or demand informing the Company or such Subsidiary that it may be liable for an “employer shared responsibility payment” as contemplated by Section 4980H of the Code, the regulations issued thereunder, and the Patient Protection and Affordable Care Act of 2010, as amended, and all regulations issued thereunder and rulings issued with respect thereto (the “Affordable Care Act”).
(b) Except as disclosed in Section 3.13(b) With respect to the Company Plans, except to the extent that the inaccuracy of any of the Company Disclosure Letter and except asrepresentations set forth in this Section 3.10 would not, individually or in the aggregate, has not had, and would not reasonably be expected to have, have a Material Adverse Effect on the Company, with respect to the Company PlansEffect:
(1i) each Company Plan has been established established, maintained, funded, operated and administered in compliance with, its terms and applicable Laws;
(ii) each Company Plan subject to ERISA has been established, funded, and administered in accordance with its terms and in compliance with the applicable provisions of ERISA, the Code and all other applicable Laws, including ERISA and in the six years preceding the date hereof no reportable eventCode, as defined in Section 4043 of ERISA, and no prohibited transaction, as described in Section 406 of ERISA or Section 4975 of the Code, or failure to satisfy the minimum accumulated funding standardsdeficiency, within the meaning of as defined in Section 302 of ERISA and 412 of the Code, has occurred with respect to any Company Plan, and all contributions contributions, premium payments, distributions or other payments required to be made under the terms of any Company Plan have been timely made;
(2iii) each Company Plan intended to be qualified under Section 401(a) of the Code (A) has received a currently effective favorable determination, advisory and/or opinion letter, as applicable, from the IRS that it is so qualified, (B) the trust maintained thereunder has been determined to be exempt from taxation under Section 501(a) of the Code qualified and (C) to the Company’s knowledge, nothing has occurred since the date of such letter that could would reasonably be expected to cause adversely affect the loss of such qualified status of such Company Plan;
(3iv) there is no Action (including any investigation, audit or other administrative proceeding) by the Department of Labor, the Pension Benefit Guaranty CorporationCorporation (the “PBGC”), the IRS or any other Governmental Entity or by any plan participant or beneficiary pending, or to the knowledge of the Company, threatened, relating to the Company Plans, any fiduciaries thereof to which the Company could have an indemnification obligation with respect to their duties to the Company Plans or the assets of any of the trusts under any of the Company Plans (other than routine claims for benefits) nor, to the knowledge of the Company, nor are there facts or circumstances that exist that could would reasonably be expect expected to give rise to any such Actions;; and
(4v) no Company Plan is or, within the preceding six years, has been subject to Title IV of ERISA or subject to Section 412 of the Code and neither the Company nor any Person that is a member of a “controlled group of corporations” with, or is under “common control” with, or is a member of the same “affiliated service group” with the Company, in each case, as defined in Sections 414(b), (c), (m) or (o) of the Code, maintains or contributes to (or has in the past six years maintained or contributed to) a multiemployer plan as defined in Section 3(37) of ERISA or a Title IV Plan;
(5vi) the Company and its Subsidiaries are do not subject to any material liability, including additional contributions, fine, penalties or loss of Tax Deductions as a result of the administration or operation of maintain any Company Plan that is a “group health plan” (as such term is defined in Section 5000(b)(1) of the Code);) that has not been administered and operated in all respects in compliance with the applicable requirements of Section 601 of ERISA and Section 4980B of the Code, similar state Laws and the Affordable Care Act, and the Company and its Subsidiaries are not subject to any material liability, including additional contributions, fines, penalties or loss of tax deduction as a result of such administration and operation; and
(6vii) no payments or benefits under any Company Plan are, or are expected to be, subject to the disallowance of a deduction under Section 162(m) of the Code.
(c) Neither the execution and delivery of this Agreement and any related documents nor the consummation of the Mergers contemplated hereby will, either alone or in combination with any other event: (i) require the Company or any Subsidiary to fund any liabilities or place in trust or otherwise set aside any amounts in respect of any Company Plan, (ii) entitle any current or former Service Provider of the Company to any compensation or benefits due under any plan, program, agreement or arrangement including any Company Plan, (iii) result in the forfeiture of compensation or benefits under any Company Plan, (iv) accelerate the time at which any compensation, benefits or award may become payable, vested or required to be funded in respect of any current or former Service Provider of the Company, or (v) limit or restrict the right of the Company or any Subsidiary to merger, amend or terminate any Company Plan.
(d) None of the Company, any of its Subsidiaries or any entity within the same “controlled group” as the Company or any of its Subsidiaries within the meaning of Section 4001(a)(14) of ERISA or 414 of the Code (an “ERISA Affiliate”) has within the past five (5) years contributed or been obligated to contribute to (i) a multiemployer plan, as defined in Section 4001(a)(3) of ERISA or 3(37) of ERISA, (ii) a multiple employer plan, as defined in Section 413(c) of the Code, (iii) a multiple employer welfare arrangement, as defined in Section 3(40) of ERISA, (iv) any plan or agreement that provides welfare benefitslife, including death health or medical other non-pension benefits (whether or not insured) to any person beyond their retirement or other termination of service, other than coverage mandated solely by COBRA or other applicable Law;Law (and for which the sole expense is borne by such Person) (v) a plan subject to Title IV of ERISA.
(7e) none No event has occurred, and no condition or circumstance exists, that could reasonably be expected to subject the Company, any Subsidiary of the Company Plans provides for payment of an amount or provision of a benefitany Company Plan to penalties or excise taxes under Sections 4980D, the increase of a payment 4980H, 6721, 6722, 6055 or benefit, the payment of a contingent amount or provision of a contingent benefit, or the acceleration of the payment, funding or vesting of an amount or benefit determined or occasioned, in whole or in part, by reason of the execution of this Agreement or the consummation of the transactions contemplated hereby whether alone or together with any other event; and
(8) no amounts payable under the Company Plans will fail to be deductible for federal income tax purposes by virtue of Section 280G 6056 of the Code as a result or under any provision of the occurrence Affordable Care Act. No Company Plan has been the subject of an application or filing under, or is a participant in, an amnesty, voluntary compliance, self-correction or similar program sponsored by any Governmental Entity within the transactions contemplated by this Agreement, either alone or in combination with another eventlast six (6) years.
(cf) The Neither the Company and its Subsidiaries have not entered into nor any employment or employment-related agreements (including change in control agreements and offer letters) to which a named individual is a party, other than those set forth on Section 3.13(a) Subsidiary of the Company Disclosure Letteris required to provide any gross-up, make-whole or other additional payment with respect to taxes, interests or penalties imposed under any Tax provisions, including Section 409A or Section 4999 of the Code.
(dg) Each Company Plan that is a “nonqualified deferred compensation plan” within (as defined in Section 409A(d)(1) of the meaning Code) has at all times been operated in compliance with its terms and the operational and documentary compliance requirements of Section 409A of the Code and related the Treasury Department Regulations and other applicable guidance has (i) been operated between January 1, 2005 and December 31, 2008, in good faith compliance with Section 409A of the Code and Notice 2005-01 and (ii) since January 1, 2009 (or such later date permitted under applicable guidance), been operated in compliance, and is in documentary compliance, in all material respects, with the requirements of Section 409A of the Codethereunder.
(e) Neither the Company nor any Subsidiary has a binding commitment to create any additional material Company Plan, or any plan, agreement or arrangement that would be a material Company Plan if adopted, or to modify or terminate any existing material Company Plan, except as required by applicable Law.
(f) The ESOP is an “employee stock ownership plan” within the meaning of Section 4975(e)(7) of the Code. Neither the Company nor the ESOP has, within the three year period immediately preceding the date of this Agreement, received any inquiry or notice from the IRS or any other governmental agency the effect of which is to question the qualification or status of the ESOP or any transaction entered into by the ESOP or the Company (with respect to the ESOP). The ESOP and the Company have filed all reports, returns or other documents in respect of the ESOP which are required to be filed pursuant to the applicable provisions of the Code and ERISA and the regulations thereunder. All loans entered into by the ESOP (the “ESOP Loans”) constitute “exempt loans” under Treasury Regulation Section 54.4975-7(b)(1)(iii). The securities held by the ESOP constitute “employer securities” under ERISA Section 407(d)(1) and Section 409(l) of the Code and “qualifying employer securities” under ERISA Section 407(d)(5) and Section 4975(e)(8) of the Code.
Appears in 1 contract
Sources: Merger Agreement (Kineta, Inc./De)
Benefit Plans. Schedule 3.1(u) hereto sets forth all stock purchase, stock option, deferred compensation, incentive compensation, severance or termination pay plans, agreements and arrangements and all "employee benefit plans", as defined in Section 3(3) of ERISA and all other employee fringe benefit and employee compensation arrangements, established, sponsored, maintained or offered by the Corporation or to which the Corporation contributed or is obligated to contribute thereunder for current or former employees of the Corporation or which are otherwise sponsored or maintained by third parties in an "affiliated service group" or "controlled group" in which the Corporation is a member as such terms are defined or otherwise utilized in ERISA or the Code (the "Corporation Plans"). Schedule 3.1(u) separately identifies each Corporation Plan which is a "multiemployer plan", as defined in Section 3(37) of ERISA ("Multiemployer Plan"). True, correct and complete copies of the following documents, with respect to each of the Corporation Plans, have been made available or delivered to Purchaser by the Sellers, (a) Section 3.13(aany plans and related trust documents, and amendments thereto; (b) the last three filed Forms 5500; (c) the last Internal Revenue Service determination letter, if applicable; and (d) summary plan descriptions. The Corporation is not and has never been a member of any "affiliated service group" or "controlled group" as such terms are defined or otherwise utilized in ERISA or the Code. With respect to the Corporation Plans and other arrangements of the Company Disclosure Letter contains Corporation pertaining to its employees:
(i) the Corporation Plans intended to qualify under Section 401 of the Code and the trusts maintained pursuant thereto are exempt form federal income taxation under section 501 of the Code, and nothing has occurred with respect to the operation of the Corporation Plans which could cause the loss of such qualification or exemption or the imposition of any liability, penalty or tax under ERISA or the Code which may result in a true material adverse effect on the Corporation or the Business;
(ii) the Corporation Plans have been maintained in accordance with their terms and complete list with all provisions of each the Code and ERISA (including rules and regulations thereunder) and other applicable federal and state laws and regulations, except where the failure to so maintain would not result in a material Company Plan. For purposes adverse effect on the Corporation or the Business;
(iii) no plan or employment arrangement exists that could result in the payment by the Corporation to any current, former, or future director or employee of the Corporation of any money or other property rights or accelerate or provide any other rights or benefits to any such employee or director as a result of transactions contemplated by this Agreement, “Company Plan” means each “employee benefit plan” whether or not such payment, acceleration, or provision would constitute a "parachute payment" (within the meaning of Section 3(3) 280G of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”)), stock purchase, stock option, severance, employment, change-in-control, fringe benefit, bonus, incentive, deferred compensation, employee loan Code) or other employee benefit plan, agreement, program, policy or other arrangement, whether or not subject some other subsequent action or event would be required to ERISA (including any funding mechanism therefor now in effect cause such payment, acceleration or required in the future as a result of the transactions contemplated by this Agreement or otherwise), whether written or unwritten, in each case (i) maintained by the Company or any of its Subsidiaries for current or former directors, employees or consultants of the Company or (ii) under which (A) any employee, director or consultant or former employee, director or consultant of the Company or any of its Subsidiaries has any present or future right provision to benefits and (B) the Company or any of its Subsidiaries has had or has any present or future liability or obligation to contribute. With respect to each material Company Plan, the Company has furnished or made available to Parent a current, accurate and complete copy thereof, including any amendments, and, to the extent applicable: (i) any related trust agreement or other funding instrument, (ii) the most recent determination, opinion or advisory letter of the Internal Revenue Service (the “IRS”), if applicable, (iii) any summary plan description or other material written communications by the Company or its Subsidiaries to their employees concerning the extent of the benefits provided under a Company Plan and be triggered;
(iv) the most recent (A) Form 5500 and attached schedules, (B) audited financial statements, and (C) actuarial valuation reports.
(b) Except as disclosed in Section 3.13(b) of Corporation does not have any employee who cannot be dismissed on not more than the Company Disclosure Letter and except as, individually notice required by common law or in the aggregate, has not had, and would not reasonably be expected to have, a Material Adverse Effect on the Company, with respect to the Company Plans:
(1) each Company Plan has been established and administered in accordance with its terms and in compliance with the applicable provisions of ERISA, the Code and all other applicable Laws, and in the six years preceding the date hereof no reportable event, as defined in Section 4043 of ERISA, no prohibited transaction, as described in Section 406 of ERISA or Section 4975 of the Code, or failure to satisfy the minimum funding standards, within the meaning of Section 302 of ERISA and 412 of the Code, has occurred with respect to any Company Plan, and all contributions required to be made under the terms of any Company Plan have been timely madestatute without further liability;
(2v) each Company no Corporation Plan intended continues any benefit to be qualified under Section 401(a) any employee or former employee of the Code (A) has received a favorable determination, advisory and/or opinion letter, as applicable, from Corporation other than continuation of health coverage to the IRS that it is so qualified, (B) the trust maintained thereunder has been determined to be exempt from taxation under extent required by Section 501(a) 4980B of the Code and Part 6 of Subtitle B of Part I of ERISA (Cand comparable provisions of state law) or continuation of life insurance benefits to the Company’s knowledgeextent required by state law ("Continuation Coverage"), nothing and the Corporation has occurred since complied with all requirements relating to Continuation Coverage is not subject to any liability, penalty or tax in connection therewith;
(vi) no Corporation Plan is a defined benefit pension plan and neither the date Corporation nor any member of any "affiliated service group" or "controlled group" as such letter that could reasonably be expected terms are defined or otherwise utilized in ERISA or the Code has ever maintained or contributed to cause the loss of such qualified status of such Company any defined benefit plan or Multiemployer Plan;
(3vii) there is no Action (including any investigationleased employee, audit or other administrative proceeding) by the Department of Labortemporary employee, the Pension Benefit Guaranty Corporation, the IRS or any other Governmental Entity or by any plan participant or beneficiary pendingcontingent employee, or to the knowledge of the Companyindependent contractor ("Contingent Worker") has a claim for benefits under any Corporation Plan, threatened, relating to the Company Plans, any fiduciaries thereof other than a claim under a Corporation Plan with respect to which the Company could have an indemnification obligation with respect to their duties to Corporation has recognized the Company Plans Contingent Worker as a participant in said Corporation Plan; and
(viii) there are no actions, suits or the assets of any of the trusts under any of the Company Plans claims pending (other than routine claims for benefits) nor, to or threatened against any Corporation Plan or against the knowledge of the Company, are there facts or circumstances that exist that could reasonably be expect to give rise to any such Actions;
(4) no Company Plan is or, within the preceding six years, has been subject to Title IV of ERISA or subject to Section 412 of the Code and neither the Company nor any Person that is a member of a “controlled group of corporations” with, or is under “common control” with, or is a member of the same “affiliated service group” with the Company, in each case, as defined in Sections 414(b), (c), (m) or (o) of the Code, maintains or contributes to (or has in the past six years maintained or contributed to) a multiemployer plan as defined in Section 3(37) of ERISA or a Title IV Plan;
(5) the Company and its Subsidiaries are not subject to any material liability, including additional contributions, fine, penalties or loss of Tax Deductions as a result of the administration or operation of any Company Plan that is a “group health plan” (as such term is defined in Section 5000(b)(1) of the Code);
(6) no Company Plan provides welfare benefits, including death or medical benefits (whether or not insured) beyond retirement or termination of service, other than coverage mandated solely by applicable Law;
(7) none of the Company Plans provides for payment of an amount or provision of a benefit, the increase of a payment or benefit, the payment of a contingent amount or provision of a contingent benefit, or the acceleration of the payment, funding or vesting of an amount or benefit determined or occasioned, in whole or in part, by reason of the execution of this Agreement or the consummation of the transactions contemplated hereby whether alone or together with any other event; and
(8) no amounts payable under the Company Plans will fail to be deductible for federal income tax purposes by virtue of Section 280G of the Code as a result of the occurrence of the transactions contemplated by this Agreement, either alone or in combination with another event.
(c) The Company and its Subsidiaries have not entered into any employment or employment-related agreements (including change in control agreements and offer letters) to which a named individual is a party, other than those set forth on Section 3.13(a) of the Company Disclosure Letter.
(d) Each Company Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A of the Code and related Treasury Department guidance has (i) been operated between January 1, 2005 and December 31, 2008, in good faith compliance with Section 409A of the Code and Notice 2005-01 and (ii) since January 1, 2009 (or such later date permitted under applicable guidance), been operated in compliance, and is in documentary compliance, in all material respects, with the requirements of Section 409A of the Code.
(e) Neither the Company nor any Subsidiary has a binding commitment to create any additional material Company Plan, Corporation or any plan, agreement individual or arrangement other entity that would be may have a material Company Plan if adopted, or to modify or terminate any existing material Company Plan, except as required by applicable Law.
(f) The ESOP is an “employee stock ownership plan” within claim for indemnification against the meaning of Section 4975(e)(7) of the Code. Neither the Company nor the ESOP has, within the three year period immediately preceding the date of this Agreement, received any inquiry or notice from the IRS or any other governmental agency the effect of which is to question the qualification or status of the ESOP or any transaction entered into by the ESOP or the Company (Corporation with respect to the ESOP). The ESOP and the Company have filed all reports, returns any Corporation Plan or other documents in respect of the ESOP which are required to be filed pursuant to the applicable provisions of the Code and ERISA and the regulations thereunder. All loans entered into by the ESOP (the “ESOP Loans”) constitute “exempt loans” under Treasury Regulation Section 54.4975-7(b)(1)(iii). The securities held by the ESOP constitute “employer securities” under ERISA Section 407(d)(1) and Section 409(l) of the Code and “qualifying employer securities” under ERISA Section 407(d)(5) and Section 4975(e)(8) of the Codeits assets.
Appears in 1 contract
Sources: Agreement for Sale of Shares (Computer Network Technology Corp)
Benefit Plans. (a) Section 3.13(a) of the The Company Disclosure Letter contains a true and complete list of each material Company Plan. For purposes of this Agreement, does not maintain any “Company PlanEmployee Benefit Plans” means each “employee benefit plan” (within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), including, without limitation, multiemployer plans within the meaning of ERISA Section 3(37), ). Schedule 2.17(a) contains a true and complete list of each stock purchase, stock option, severance, employment, change-in-control, fringe benefit, collective bargaining, bonus, incentive, deferred compensation, employee loan or retention and all other employee benefit planplans, agreementagreements, programprograms, policy policies or other arrangementarrangements maintained by the Company, whether or not subject to ERISA (including any funding mechanism therefor now in effect effect), oral or required in the future as a result written, under which any of the transactions contemplated by this Agreement or otherwise), whether written or unwritten, in each case (i) maintained by the Company or any of its Subsidiaries for current or former directors, employees or consultants of the Company or (ii) under which (A) any employee, director or consultant or former employee, director or consultant of the Company or any of its Subsidiaries Employees has any present or future right to benefits benefits. All such plans, agreements, programs, policies and (B) arrangements are collectively referred to herein as the “Company Plans.” Except as disclosed on Schedule 2.17(a), the Company has no express or implied commitment to (i) create, incur liability with respect to, or cause to exist any of its Subsidiaries has had “employee benefit plan” or has (ii) to enter into any present contract or future liability agreement to provide compensation or obligation benefits to contribute. any individual.
(b) With respect to each material Company Plan, the Company has furnished delivered or made available to Parent ATMI a current, accurate and complete copy thereof(or, including any amendmentsto the extent no such copy exists, an accurate description) thereof and, to the extent applicable: (i) any related trust agreement or other funding instrument, ; (ii) the most recent determination, opinion or advisory letter of the Internal Revenue Service (the “IRS”)determination letter, if applicable, ; (iii) any summary plan description or and other material written communications (or a description of any oral communications) by the Company or its Subsidiaries to their employees the Employees concerning the extent of the benefits provided under a any Company Plan Plan; and (iv) for the three most recent years (A) Form 5500 and attached schedules, (B) audited financial statements, (B) actuarial valuation reports and (C) actuarial valuation reportsattorney’s response to any auditor’s request for information.
(bc) Except as disclosed in Section 3.13(b) set forth on Schedule 2.17(c), the consummation of the Company Disclosure Letter and except astransactions contemplated by this Agreement will not, individually or in the aggregate, has not had, and would not reasonably be expected to have, a Material Adverse Effect on the Company, with respect to the Company Plans:
(1) each Company Plan has been established and administered in accordance with its terms and in compliance with the applicable provisions of ERISA, the Code and all other applicable Laws, and in the six years preceding the date hereof no reportable event, as defined in Section 4043 of ERISA, no prohibited transaction, as described in Section 406 of ERISA or Section 4975 of the Code, or failure to satisfy the minimum funding standards, within the meaning of Section 302 of ERISA and 412 of the Code, has occurred with respect to any Company Plan, and all contributions required to be made under the terms of any Company Plan have been timely made;
(2) each Plan, result in the payment by the Company Plan intended or any of ATMI or ATMI Sub to be qualified under Section 401(a) any Employee of the Code (A) has received a favorable determination, advisory and/or opinion letter, as applicable, from the IRS that it is so qualified, (B) the trust maintained thereunder has been determined to be exempt from taxation under Section 501(a) of the Code and (C) to the Company’s knowledge, nothing has occurred since the date of such letter that could reasonably be expected to cause the loss of such qualified status of such Company Plan;
(3) there is no Action (including any investigation, audit money or other administrative proceeding) by the Department of Laborproperty, the Pension Benefit Guaranty Corporation, the IRS or accelerate or provide any other Governmental Entity rights or by any plan participant or beneficiary pending, or to the knowledge of the Company, threatened, relating to the Company Plans, any fiduciaries thereof to which the Company could have an indemnification obligation with respect to their duties to the Company Plans or the assets of any of the trusts under any of the Company Plans (other than routine claims for benefits) nor, to the knowledge of the Company, are there facts or circumstances that exist that could reasonably be expect to give rise benefits to any such Actions;
(4) no Company Plan is orEmployee, within the preceding six years, has been subject to Title IV of ERISA or subject to Section 412 of the Code and neither the Company nor any Person that is a member of a “controlled group of corporations” with, or is under “common control” with, or is a member of the same “affiliated service group” with the Company, in each case, as defined in Sections 414(b), (c), (m) or (o) of the Code, maintains or contributes to (or has in the past six years maintained or contributed to) a multiemployer plan as defined in Section 3(37) of ERISA or a Title IV Plan;
(5) the Company and its Subsidiaries are not subject to any material liability, including additional contributions, fine, penalties or loss of Tax Deductions as a result of the administration or operation of any Company Plan that is a “group health plan” (as such term is defined in Section 5000(b)(1) of the Code);
(6) no Company Plan provides welfare benefits, including death or medical benefits (whether or not insured) beyond retirement or termination of service, other than coverage mandated solely by applicable Law;
(7) none of the Company Plans provides for such payment of an amount or provision of would constitute “a benefit, the increase of a payment or benefit, the payment of a contingent amount or provision of a contingent benefit, or the acceleration of the parachute payment, funding or vesting of an amount or benefit determined or occasioned, in whole or in part, by reason of the execution of this Agreement or the consummation of the transactions contemplated hereby whether alone or together with any other event; and
(8) no amounts payable under the Company Plans will fail to be deductible for federal income tax purposes by virtue of Section 280G of the Code as a result of the occurrence of the transactions contemplated by this Agreement, either alone or in combination with another event.
(c) The Company and its Subsidiaries have not entered into any employment or employment-related agreements (including change in control agreements and offer letters) to which a named individual is a party, other than those set forth on Section 3.13(a) of the Company Disclosure Letter.
(d) Each Company Plan that is a “nonqualified deferred compensation plan” within the meaning of Code (as defined in Article 6) Section 409A of the Code and related Treasury Department guidance has (i) been operated between January 1, 2005 and December 31, 2008, in good faith compliance with Section 409A of the Code and Notice 2005-01 and (ii) since January 1, 2009 (or such later date permitted under applicable guidance), been operated in compliance, and is in documentary compliance, in all material respects, with the requirements of Section 409A of the Code.
(e) Neither the Company nor any Subsidiary has a binding commitment to create any additional material Company Plan, or any plan, agreement or arrangement that would be a material Company Plan if adopted, or to modify or terminate any existing material Company Plan, except as required by applicable Law.
(f) The ESOP is an “employee stock ownership plan” within the meaning of Section 4975(e)(7) of the Code. Neither the Company nor the ESOP has, within the three year period immediately preceding the date of this Agreement, received any inquiry or notice from the IRS or any other governmental agency the effect of which is to question the qualification or status of the ESOP or any transaction entered into by the ESOP or the Company (with respect to the ESOP). The ESOP and the Company have filed all reports, returns or other documents in respect of the ESOP which are required to be filed pursuant to the applicable provisions of the Code and ERISA and the regulations thereunder. All loans entered into by the ESOP (the “ESOP Loans”) constitute “exempt loans” under Treasury Regulation Section 54.4975-7(b)(1)(iii). The securities held by the ESOP constitute “employer securities” under ERISA Section 407(d)(1) and Section 409(l) of the Code and “qualifying employer securities” under ERISA Section 407(d)(5) and Section 4975(e)(8) of the Code.280G.
Appears in 1 contract
Sources: Merger Agreement (Atmi Inc)
Benefit Plans. (ai) Section 3.13(aDisclosure Schedule 4.2(j)(i) of the Company Disclosure Letter contains sets forth a true and complete list of each material Company Plan. For purposes of this Agreement, “Company Plan” means each all “employee benefit plan” (within the meaning of plans”, as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974ERISA, as amended (“ERISA”)), whether or not subject to ERISA and all stock purchase, stock option, severance, employment, change-in-control, educational assistance, adoption assistance, fringe benefit, collective bargaining, bonus, incentive, deferred compensation, employee loan or compensation and other employee benefit planplans, agreementagreements, programprograms, policy policies or other arrangementarrangements, whether or not subject to ERISA ERISA, whether formal or informal, oral or written, legally binding or not (including any funding mechanism therefor now in effect or required in all the future as a result of the transactions contemplated by this Agreement or otherwiseforegoing being herein called “Benefit Plans”), whether written or unwritten, in each case (i) maintained by the Company or any of its Subsidiaries for current or former directors, employees or consultants of the Company or (ii) under which (A) any employee, director or consultant director, independent contractor or former employee, director or consultant independent contractor of the Company Company, or any spouse or dependent of its Subsidiaries any such employee or director, has any present or future right to benefits benefits, and which is (Bor was prior to its termination) the sponsored, maintained or contributed to by Company or any of its Subsidiaries has had or under which Company has any present or future liability or obligation to contribute. With respect to each material (“Company PlanBenefit Plans”), the Company has furnished provided or made available to Parent a currenttrue, accurate correct and complete copy thereofof (A) such Company Benefit Plan and all related amendments thereto, including (B) each trust agreement, summaries, employee booklets or handbooks, annuity contracts, insurance policies or any amendments, and, to the extent applicable: (i) any related trust agreement or other funding instrumentinstruments (“Funding Arrangements”) relating to such Company Benefit Plan and all related amendments thereto, (iiC) the most recent determination, opinion or advisory letter of the Internal Revenue Service (the “IRS”), if applicable, (iii) any summary plan description for each Company Benefit Plan for which a summary plan description is required by ERISA, for Benefit Plans not subject to ERISA or other material written communications by the Company or its Subsidiaries to their employees concerning the extent of the benefits provided under a Company Plan and that are unwritten, any relevant summaries, (ivD) the most recent annual report (AForm 5500) Form 5500 and attached schedulesfiled with the IRS and, where applicable, the related audited financial statements thereof, (BE) audited financial statementsany contracts with independent contractors (including actuaries, investment managers, etc.) that relate to any Company Benefit Plan, and (CF) actuarial valuation reports.
the most recent determination letter (bor equivalent) Except as disclosed in Section 3.13(b) of issued by the Company Disclosure Letter and except as, individually or in the aggregate, has not had, and would not reasonably be expected to have, a Material Adverse Effect on the Company, with respect to the Company Plans:
(1) each Company Plan has been established and administered in accordance with its terms and in compliance with the applicable provisions of ERISA, the Code and all other applicable Laws, and in the six years preceding the date hereof no reportable event, as defined in Section 4043 of ERISA, no prohibited transaction, as described in Section 406 of ERISA or Section 4975 of the Code, or failure to satisfy the minimum funding standards, within the meaning of Section 302 of ERISA and 412 of the Code, has occurred IRS with respect to any Company Plan, and all contributions required Benefit Plan qualified under Section 401(a) of the Code. There are no unwritten amendments to be made under the terms of any Company Plan have been timely made;Benefit Plan.
(2ii) each Each Company Benefit Plan intended that is represented to be qualified under Section 401(a) of the Code (A) either has received a favorable determinationdetermination letter that covers all existing amendments up to and including EGTRRA or is an adoption of a prototype or volume submitter plan for which a favorable opinion letter has been issued up to and including EGTRRA, advisory and/or opinion on which Company is entitled to reliance equivalent to a determination letter, and, in either case, Company has no obligation to adopt any amendments for which the remedial amendment period under Section 401(b) of the Code has expired, and Company is not aware of any circumstances likely to result in revocation of any such favorable determination or inability to rely on any opinion letter except as applicable, from the IRS that it is so qualified, (B) the trust maintained thereunder disclosed on Disclosure Schedule 4.2(j)(ii). Each Company Benefit Plan has been determined to be operated in compliance, in all material respects, with applicable law or in accordance with its terms and any related trust is exempt from taxation federal income tax under Section 501(a) of the Code and, except as disclosed on Disclosure Schedule 4.2(j)(ii), all reports, descriptions and (C) filings required by the Code, ERISA or any government agency with respect to the Company’s knowledge, nothing has occurred since the date of such letter that could reasonably be expected to cause the loss of such qualified status of such each Company Plan;Benefit Plan have been timely and completely filed or distributed.
(3iii) there is no Action (including any investigation, audit or other administrative proceeding) by To the Department of Labor, the Pension Benefit Guaranty Corporation, the IRS or any other Governmental Entity or by any plan participant or beneficiary pending, or to the knowledge Knowledge of the Company, threatened, relating to the Company Plans, any fiduciaries thereof to which the Company could have an indemnification obligation with respect to their duties to the Company Plans or the assets of any of the trusts under any of the Company Plans (other than routine claims for benefits) nor, to the knowledge of the Company, are there facts or circumstances that exist that could reasonably be expect to give rise to any such Actions;
(4) no Company Benefit Plan is or, within the preceding six years, has been subject to Title IV of ERISA or is a defined benefit plan within the meaning of Section 3(35) of ERISA or, without limitation, either a multiple employer plan (including plans sponsored by an employee leasing or professional employer organization), or “multi-employer plan” (as either such term is defined in the Code or ERISA) and Company has not at any time during the last six (6) years, sponsored, maintained, contributed to or been obligated to contribute to any plan subject to Section Title IV of ERISA. No Company Benefit Plan is subject to the funding standards of Sections 412 or 436 of the Code or Section 302 of ERISA.
(iv) All contributions (including, without limitations, all employer contributions, employee salary reduction contributions and neither all premiums or other payments (other than claims)) that are due and payable on or before the Closing Date have been timely paid to or made with respect to each Company nor any Person that is a member of a “controlled group of corporations” withBenefit Plan and, or is under “common control” withto the extent not presently payable, or is a member appropriate reserves have been established for the payment and properly accrued in accordance with customary accounting practices. Pro-rata annual 401k and performance bonuses shall be paid based on amounts accrued at the end of the same “affiliated service group” with month prior to the Company, Closing from Company accruals.
(v) all obligations required to be performed by Company under any Company Benefit Plan have been performed by them in each case, as defined all material respects and they are not in Sections 414(b), default under or in violation of any material provision of any Company Benefit Plan. There have been no prohibited transactions (c), (m) described under Section 406 of ERISA or (oSection 4975(c) of the Code), maintains breaches of fiduciary duty or contributes any other breaches or violations of any law applicable to (or has in the past six years maintained or contributed to) a multiemployer plan as defined in Section 3(37) of ERISA or a Title IV Plan;
(5) the Company and its Subsidiaries are not Benefit Plans that would directly or indirectly subject Parent or Company to any material liability, including additional contributions, finetaxes, penalties or loss other liabilities, including any liability arising through indemnification.
(vi) Except as disclosed in Disclosure Schedule 4.2(j)(vi), no Company Benefit Plan is invested in or provides the opportunity for the purchase of Tax Deductions any employer security or employer real property (within the meaning of Section 407(d) of ERISA), other than the Company Stock Incentive Plans.
(vii) With respect to the Company Benefit Plans, Company has provided Parent a true, correct and complete copy of each form of award agreement, including amendments, under which the grant, sale or issuance of Company Common Stock, or the payment of cash based on the value of Company Common Stock have been granted, and a schedule showing the name of each grantee, the date of grant and all other material terms of each grant. No stock option or other right to acquire Company Common Stock or other equity of Company, or the payment of cash based on the value of Company Common Stock (A) has an exercise price that was less than the fair market value of the underlying equity as of the date such stock option or right was granted, as determined by Company in good faith and in compliance with the relevant IRS guidance in effect on the date of grant (including, IRS Notice 2005-1 and Treasury Regulations Section 1.409A-1(b)(5)(iv)), (B) has any feature for the deferral of compensation other than the deferral of recognition of income until the later of exercise or disposition of such option or right, or (C) has been granted after December 31, 2004, with respect to any class of stock of Company that is not “service recipient stock” (within the meaning of applicable regulations under Section 409A).
(viii) There are no pending claims, lawsuits or actions relating to any Company Benefit Plan (other than ordinary course claims for benefits) and, to the Knowledge of Company none are threatened. Except as disclosed on Disclosure Schedule 4.2(j)(viii), neither the Merger, nor subsequent events where consequences result solely as a result of both the occurrence of the subsequent event and the occurrence of the Merger, shall accelerate the time of payment or vesting, or increase the amount, of compensation due to any employee, officer, former employee or former officer of Company.
(ix) Except as required by the continuation coverage requirements of Section 601 et seq. of ERISA and Section 4980B of the Code or comparable state law, to the Knowledge of Company, Company has no liability to provide post-retirement health or life benefits to any employee or former employee. No written or oral representations have been made to any employee or former employee of Company promising or guaranteeing any employer payment or funding for the continuation of medical, dental, life or disability coverage for such individual, their dependents, or any beneficiaries for any period of time beyond the end of the current plan year or beyond termination of employment, except as required by law and at no expense to Company.
(x) Except as set forth in Disclosure Schedule 4.2(j)(x), no Company Benefit Plan, Company Stock Plan or other contract or arrangement exists that could result in the payment to any present or former employee or director of Company of any money or other property or accelerate or provide any other rights or benefits to any present or former employee of Company or any Subsidiary of Company as a result of the administration transactions contemplated by this Agreement. Unless specifically disclosed on such schedule, no such payment will be nondeductible or operation subject to excise tax under Sections 4999 or 280G of the Code, nor will Parent be required to “gross up” or otherwise compensate any Person because of the limits contained in such Code sections.
(xi) Except as set forth in Disclosure Schedule 4.2(j)(xi), there are no surrender charges, penalties, or other costs or fees that would be imposed by any Person against Company, any Company Benefit Plan, or any other Person, including without limitation, any Company Benefit Plan that participant or beneficiary as a result of the consummation of the transactions contemplated by this Agreement with respect to any insurance, annuity or investment contracts or other similar investment held by any Company Benefit Plan.
(xii) Each Company Benefit Plan which is a “group health plan” (as such term is defined in Section 5000(b)(1the Code and ERISA) has been operated in compliance, in all material respects, with Part 6 of Subtitle B of Title 1 of ERISA and Sections 4980B and 4980D of the Code and any analogous state law. No failure has occurred that would subject Parent or any of its Subsidiaries to tax under Sections 4980B or 4980D of the Code);
(6) no . Each such plan is in compliance, in all material respects, with, and the operation of each such plan will not result in the incurrence of any material penalty to Company Plan provides welfare benefits, including death or medical benefits (whether or not insured) beyond retirement or termination of service, other than coverage mandated solely by applicable Law;
(7) none of the Company Plans provides for payment of an amount or provision of a benefitSurviving Bank under, the increase of a payment or benefitPatient Protection and Affordable Care Act and its companion b▇▇▇, the payment Health Care and Education Reconciliation Act of a contingent amount or provision of a contingent benefit2010, or to the acceleration of the payment, funding or vesting of an amount or benefit determined or occasioned, in whole or in part, by reason of the execution of this Agreement or the consummation of the transactions contemplated hereby whether alone or together with any other event; and
(8) no amounts payable under the Company Plans will fail to be deductible for federal income tax purposes by virtue of Section 280G of the Code as a result of the occurrence of the transactions contemplated by this Agreement, either alone or in combination with another eventextent applicable.
(cxiii) The Except as described in Disclosure Schedule 4.2(j)(xiii), Company is insured by one or more insurance company(ies) for all health, dental, vision, life disability or similar claims relating to any Company Benefit Plan and its Subsidiaries have Company does not entered into self-insure against such claims.
(xiv) Company may, at any employment time, amend or employment-related agreements (including change in control agreements terminate any Company Benefit Plan that it sponsors or maintains and offer letters) may withdraw from any Company Benefit Plan to which a named individual is a it contributes (but does not sponsor or maintain), without obtaining the consent of any third party, other than those set forth on Section 3.13(a) an insurance company in the case of any benefit underwritten by an insurance company, and without incurring liability except for unpaid premiums or contributions due for the Company Disclosure Letterpay period that includes the effective date of such amendment, withdrawal or termination.
(dxv) Each To the Knowledge of the Company, each Company Benefit Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A(d)(1) of the Code (a “Nonqualified Deferred Compensation Plan”) subject to Section 409A of the Code and related Treasury Department guidance has (i) been maintained and operated between since January 1, 2005 and December 31(or, 2008if later, from its inception) in good faith compliance with Section 409A of the Code and all applicable Treasury Regulations promulgated thereunder and, as to any such plan in existence prior to January 1, 2005, has not been “materially modified” (within the meaning of IRS Notice 2005-01 and (ii1) since January 1at any time after October 3, 2009 (2004, or such later date permitted under applicable guidance), has been operated amended in compliance, and is in documentary compliance, in all material respects, a manner that conforms with the requirements of Section 409A of the Code.
, and (eii) since January 1, 2009, been in documentary and operational compliance with Section 409A of the Code and all applicable IRS guidance promulgated thereunder. No additional tax under Section 409A(a)(1)(B) of the Code has been or is reasonably expected to be incurred by a participant in any such Company Benefit Plan or other contract, plan, program, agreement, or arrangement. Neither the Company nor any Subsidiary has is a binding commitment to create any additional material Company Planparty to, or otherwise obligated under, any plancontract, agreement agreement, plan or arrangement that would be a material Company Plan if adopted, or to modify or terminate any existing material Company Plan, except as required provides for the gross-up of taxes imposed by applicable Law.
(f) The ESOP is an “employee stock ownership plan” within the meaning of Section 4975(e)(7) of the Code. Neither the Company nor the ESOP has, within the three year period immediately preceding the date of this Agreement, received any inquiry or notice from the IRS or any other governmental agency the effect of which is to question the qualification or status of the ESOP or any transaction entered into by the ESOP or the Company (with respect to the ESOP). The ESOP and the Company have filed all reports, returns or other documents in respect of the ESOP which are required to be filed pursuant to the applicable provisions of the Code and ERISA and the regulations thereunder. All loans entered into by the ESOP (the “ESOP Loans”) constitute “exempt loans” under Treasury Regulation Section 54.4975-7(b)(1)(iii). The securities held by the ESOP constitute “employer securities” under ERISA Section 407(d)(1) and Section 409(l) of the Code and “qualifying employer securities” under ERISA Section 407(d)(5) and Section 4975(e)(8409A(a)(1)(B) of the Code.
Appears in 1 contract
Benefit Plans. (a) Section 3.13(a2.12(a) of the Company Seller Disclosure Letter contains a true and complete list of each material Company Benefit Plan. For purposes of this Agreement, “Company Plan” means each “employee benefit plan” .
(within the meaning of Section 3(3b) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”)), stock purchase, stock option, severance, employment, change-in-control, fringe benefit, bonus, incentive, deferred compensation, employee loan or other employee benefit plan, agreement, program, policy or other arrangement, whether or not subject to ERISA (including any funding mechanism therefor now in effect or required in the future as a result of the transactions contemplated by this Agreement or otherwise), whether written or unwritten, in each case (i) maintained by the Company or any of its Subsidiaries for current or former directors, employees or consultants of the Company or (ii) under which (A) any employee, director or consultant or former employee, director or consultant of the Company or any of its Subsidiaries has any present or future right to benefits and (B) the Company or any of its Subsidiaries has had or has any present or future liability or obligation to contribute. With respect to each material Company Benefit Plan, the Company has furnished or made available to Parent Buyer a current, accurate true and complete copy thereofcurrent copy, including any amendmentsamendments thereto (or, to the extent no such copy exists, a description of key terms) thereof and, to the extent applicable: (i) any related trust agreement agreement, insurance contract or other funding instrument, arrangements currently in effect; (ii) the most recent determinationIRS determination letter, opinion or advisory letter of the Internal Revenue Service (the “IRS”), if applicable, similar documentation for non-U.S. jurisdictions; (iii) any summary plan description or other material written communications by the Company or its Subsidiaries to their employees concerning the extent of the benefits provided under a Company Plan and (iv) the most recent summary plan description; (iv) for the most recent plan year (A) the most recent actuarial report and annual report on Form 5500 and attached schedules, or similar documentation for non-U.S. jurisdictions and (B) audited financial statements, ; and (Cv) actuarial valuation reportsall material non-routine communications with the IRS, Department of Labor or other Governmental Authority.
(bc) Except Neither the Company nor any of its Subsidiaries nor any of their respective ERISA Affiliates contributes to or is obligated to contribute to, or within the past six (6) years contributed to or was obligated to contribute to, nor has any Liability under, any “multiemployer plan” as disclosed defined in Section 3.13(b3(37) of ERISA (a “Multiemployer Plan”). Neither the Company Disclosure Letter and except as, individually nor any of its Subsidiaries contributes to or in is required to contribute to a “multiple employer plan” within the aggregate, has not had, and would not reasonably be expected to have, a Material Adverse Effect on the Company, with respect to the Company Plans:meaning of section 4063 or 4064 of ERISA.
(1d) each Company (i) Each Benefit Plan has been established established, operated, maintained, funded and administered in accordance with its terms terms, and in compliance with the applicable provisions of ERISA, the Code and all other applicable Laws, and except as would not, individually or in the six years preceding aggregate, reasonably be expected to be material to the date hereof no reportable eventCompany and its Subsidiaries, taken as defined in Section 4043 a whole; (ii) all contributions and premiums required to have been paid by the Company or any of ERISAits Subsidiaries to or by the terms of any Benefit Plan or its related trust, no prohibited transaction, as described in Section 406 of ERISA insurance contract or Section 4975 of the Codeother funding arrangement, or failure pursuant to satisfy any applicable Law have been paid in all material respects within the minimum funding standards, time prescribed by any such Benefit Plan or applicable Law; (iii) each Benefit Plan that is intended to be qualified within the meaning of Code Section 302 401(a) is so qualified; and (iv) all amendments and actions required to bring each Benefit Plan into conformity in all material respects with applicable provisions of all applicable Laws, including ERISA and the Code, have been made or taken.
(e) Neither the Company nor any of its Subsidiaries has any obligation or commitment to “gross up” or otherwise compensate, indemnify or reimburse any Person with respect to Taxes under Section 409A or 4999 of the Code or any similar provision under applicable local Law.
(f) None of the Benefit Plans are subject to Title IV of ERISA and 412 neither the Company nor any of its Subsidiaries has in the Codepast six (6) years sponsored, maintained or contributed to, any pension plan subject to Title IV of ERISA. Neither the Company nor any of its Subsidiaries has occurred with respect to any Company Plan, and all contributions required to be made under the terms of any Company Plan have been timely made;
(2) each Company Plan intended to be qualified under Section 401(a) of the Code (A) has received a favorable determination, advisory and/or opinion letter, as applicable, from the IRS that it is so qualified, (B) the trust maintained thereunder has been determined to be exempt from taxation under Section 501(a) of the Code and (C) to the Company’s knowledge, nothing has occurred since the date of such letter that could incurred or would reasonably be expected to cause incur, including on account of an ERISA Affiliate, Liability to the loss Pension Benefit Guarantee Corporation or otherwise under Title IV of such qualified status of such Company Plan;
(3) there is no Action ERISA (including any investigation, audit or other administrative proceedingwithdrawal Liability).
(g) by the Department of Labor, the Pension Benefit Guaranty Corporation, the IRS or any other Governmental Entity or by any plan participant or beneficiary pending, or to the knowledge None of the Company, threatened, relating Benefit Plans provide benefits to employees located outside the Company Plans, any fiduciaries thereof to which the Company could have an indemnification obligation with United States.
(h) With respect to their duties to the Company Plans or the assets of any of the trusts under any of the Company Plans Benefit Plan, no Actions (other than routine claims for benefitsbenefits in the ordinary course) norare pending or, to the knowledge of the Company, are there facts threatened in writing, except, in each case, as would not, individually or in the aggregate, reasonably result in material Liability to the Company and its Subsidiaries, taken as a whole, and to the knowledge of the Company, no fact or circumstances that exist that could would reasonably be expect expected to give rise to any such Actions;Action.
(4i) no Neither the Company nor any of its Subsidiaries has any Liability in respect of post-retirement health, medical or life insurance benefits for retired, former or current employees of the Company or any of its Subsidiaries except as required to avoid the excise tax under Section 4980B of the Code or other applicable Law.
(j) Each Benefit Plan that is or, within the preceding six years, has been subject to Title IV of ERISA or subject to a “nonqualified deferred compensation plan” as defined in Section 412 409A(d)(1) of the Code and neither the Company nor any Person that is a member subject to (and not exempt from) the requirements of a “controlled group of corporations” with, or is under “common control” with, or is a member of the same “affiliated service group” with the Company, in each case, as defined in Sections 414(b), (c), (m) or (oSection 409A(a)(2) of the Code, maintains or contributes to (or has been maintained in good faith material compliance in all material respects with the past six years maintained or contributed to) a multiemployer plan as defined in requirements of Section 3(37) of ERISA or a Title IV Plan;
(5) the Company and its Subsidiaries are not subject to any material liability, including additional contributions, fine, penalties or loss of Tax Deductions as a result of the administration or operation of any Company Plan that is a “group health plan” (as such term is defined in Section 5000(b)(1409A(a)(2) of the Code);Code and all applicable IRS and U.S. Treasury Department guidance issued thereunder in both operation and documentation.
(6k) no Company Plan provides welfare benefitsExcept as set forth in Section 2.12(k) of the Seller Disclosure Letter, including death or medical benefits (whether or not insured) beyond retirement or termination of service, other than coverage mandated solely by applicable Law;
(7) none of the Company Plans provides for payment of an amount execution, delivery or provision of a benefit, the increase of a payment or benefit, the payment of a contingent amount or provision of a contingent benefit, or the acceleration of the payment, funding or vesting of an amount or benefit determined or occasioned, in whole or in part, by reason of the execution performance of this Agreement or the consummation of the transactions contemplated hereby by this Agreement (whether alone or together in conjunction with any other event; and
, including any termination of employment on or following the date hereof) (8) no amounts payable under i) entitles any current or former employee, officer, director or independent contractor of the Company Plans will or any of its Subsidiaries to any transaction or retention bonuses, severance pay, unemployment compensation or any other payment or benefit, (ii) accelerates the time of payment or vesting, enhances or increases the amount or type of compensation or benefits due or that may become due to any such individual or require any contributions or payments to fund any obligations under any Benefit Plan, (iii) requires any contributions or payments to fund any obligations under any Benefit Plan, or causes the Company or any of its Subsidiaries to transfer or set aside any assets to fund any Benefit Plan, (iv) limits or restricts the right to amend, terminate or transfer the assets of any Benefit Plan, (v) results in any forgiveness of indebtedness under any Benefit Plan or (vi) causes any payment or benefit to fail to be deductible for federal income tax purposes by virtue of Section 280G of the Code as a result of Code; provided that the occurrence of the transactions contemplated by this Agreement, either alone or in combination with another event.
(c) The Company and its Subsidiaries have foregoing shall not entered into apply to any employment or employment-related agreements (including change in control agreements and offer letters) to which a named individual is a party, other than those set forth on Section 3.13(a) of the Company Disclosure Letter.
(d) Each Company Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A of the Code and related Treasury Department guidance has (i) been operated between January 1, 2005 and December 31, 2008, in good faith compliance with Section 409A of the Code and Notice 2005-01 and (ii) since January 1, 2009 (or such later date permitted under applicable guidance), been operated in compliance, and is in documentary compliance, in all material respects, with the requirements of Section 409A of the Code.
(e) Neither the Company nor any Subsidiary has a binding commitment to create any additional material Company Plan, or any plan, agreement or arrangement that would be a material Company Plan if adopted, or to modify or terminate any existing material Company Plan, except as required by applicable Law.
(f) The ESOP is an “employee stock ownership plan” within the meaning of Section 4975(e)(7) of the Code. Neither the Company nor the ESOP has, within the three year period immediately preceding the date of this Agreement, received any inquiry or notice from the IRS or any other governmental agency the effect of which is to question the qualification or status of the ESOP or any transaction new arrangements entered into by or at the ESOP or the Company (with respect to the ESOP). The ESOP and the Company have filed all reports, returns or other documents in respect direction of the ESOP which are required to be filed pursuant to the applicable provisions of the Code and ERISA and the regulations thereunder. All loans entered into by the ESOP (the “ESOP Loans”) constitute “exempt loans” under Treasury Regulation Section 54.4975-7(b)(1)(iii). The securities held by the ESOP constitute “employer securities” under ERISA Section 407(d)(1) and Section 409(l) of the Code and “qualifying employer securities” under ERISA Section 407(d)(5) and Section 4975(e)(8) of the CodeBuyer.
Appears in 1 contract
Sources: Stock Purchase Agreement (America Movil Sab De Cv/)
Benefit Plans. (a) Section 3.13(a) of the Company Disclosure Letter contains a true and complete list of each material Company Plan. For purposes of this Agreement, “Company Plan” means each “employee benefit plan” (within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”)), stock purchase, stock option, severance, employment, change-in-control, fringe benefit, bonus, incentive, deferred compensation, employee loan or other employee benefit plan, agreement, program, policy or other arrangement, whether or not subject to ERISA (including any funding mechanism therefor now in effect or required in the future as a result of the transactions contemplated by this Agreement or otherwise), whether written or unwritten, in each case (i) maintained by the Company or any of its Subsidiaries for current or former directors, employees or consultants of the Company or (ii) under which (A) any employee, director or consultant or former employee, director or consultant of the Company or any of its Subsidiaries has any present or future right to benefits and (B) the Company or any of its Subsidiaries has had or has any present or future liability or obligation to contribute. With respect to each material Company Copper Benefit Plan, the Company Copper has furnished or made available to Parent a current, Steel complete and accurate and complete copy thereof, including any amendments, andcopies of the following documents, to the extent applicable: (iA) such Copper Benefit Plan document (or, with respect to any related trust agreement or other funding instrumentsuch arrangement that is not in writing, (ii) a written description of the material terms thereof), including any amendment thereto, and to the extent applicable, the most recent determination, opinion or advisory letter of the Internal Revenue Service (the “IRS”), if applicable, (iii) any summary plan description or other material written communications by the Company or its Subsidiaries to their employees concerning the extent of the benefits provided under a Company Plan and (iv) the most recent (A) Form 5500 and attached schedulesthereof, (B) audited financial statementseach trust, insurance, annuity or other funding arrangement, and all amendments related thereto, (C) the two (2) most recent audited financial statements and actuarial or other valuation reportsreports prepared with respect thereto, (D) the two (2) most recent Forms 5500 and all related schedules required to be filed with the IRS with respect thereto, (E) the most recently received IRS determination letter or opinion letter and (F) all material or non-routine correspondence with a Governmental Entity over the past three (3) years.
(b) Except as disclosed in Section 3.13(b) of the Company Disclosure Letter and except as, individually or in the aggregate, has not had, and would not reasonably be expected to have, have a Material Adverse Effect on the CompanyCopper, with respect to the Company Plans:
(1A) each Company Plan of the Copper Benefit Plans has been established established, operated and administered in accordance compliance with its terms and in compliance accordance with the applicable provisions of Applicable Laws, including ERISA, the Code and all other applicable Laws, and in each case the six years preceding the date hereof no reportable event, as defined in Section 4043 of ERISA, no prohibited transaction, as described in Section 406 of ERISA or Section 4975 of the Code, or failure to satisfy the minimum funding standards, within the meaning of Section 302 of ERISA and 412 of the Code, has occurred with respect to any Company Plan, and all contributions required to be made under the terms of any Company Plan have been timely made;
(2) each Company Plan intended to be qualified under Section 401(a) of the Code (A) has received a favorable determination, advisory and/or opinion letter, as applicable, from the IRS that it is so qualified, regulations thereunder; (B) the trust maintained thereunder has been determined to be exempt from taxation under Section 501(a) of the Code and (C) to the Company’s knowledge, nothing has occurred since the date of such letter that could reasonably be expected to cause the loss of such qualified status of such Company Plan;
(3) there is no Action (including any investigation, audit or other administrative proceeding) by the Department of Labor, the Pension Copper Benefit Guaranty Corporation, the IRS or any other Governmental Entity or by any plan participant or beneficiary pending, or to the knowledge of the Company, threatened, relating to the Company Plans, any fiduciaries thereof to which the Company could have an indemnification obligation with respect to their duties to the Company Plans or the assets of any of the trusts under any of the Company Plans (other than routine claims for benefits) nor, to the knowledge of the Company, are there facts or circumstances that exist that could reasonably be expect to give rise to any such Actions;
(4) no Company Plan is or, within the preceding six years, has been subject to Title IV of ERISA or subject to Section 412 of the Code and neither the Company nor any Person that is a member of a “controlled group of corporations” with, or is under “common control” with, or is a member of the same “affiliated service group” with the Company, in each case, as defined in Sections 414(b), (c), (m) or (o) of the Code, maintains or contributes to (or has in the past six years maintained or contributed to) a multiemployer plan as defined in Section 3(37) of ERISA or a Title IV Plan;
(5) the Company and its Subsidiaries are not subject to any material liability, including additional contributions, fine, penalties or loss of Tax Deductions as a result of the administration or operation of any Company Plan that is a “group health plan” (as such term is defined in Section 5000(b)(1) of the Code);
(6) no Company Plan provides welfare benefits, including death or medical benefits (whether or not insured) ), with respect to current or former employees or directors of Copper or its Subsidiaries beyond their retirement or other termination of service, other than coverage mandated solely by COBRA, or comparable U.S. state or foreign law; (C) all required contributions or other amounts payable by Copper or its Subsidiaries as of the Closing Effective Time pursuant to each Copper Benefit Plan in respect of current or prior plan years have been timely paid or, to the extent not yet due, have been accrued in accordance with GAAP; (D) neither Copper nor any of its Subsidiaries has engaged in a breach of fiduciary duty (as determined under ERISA) or a non-exempt prohibited transaction in connection with which Copper or its Subsidiaries could be subject to either a civil penalty assessed pursuant to Section 409 or 502 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 Copper, threatened or anticipated claims, Actions, investigations or audits (other than routine claims for benefits) by, on behalf of or against any of the Copper Benefit Plans, any trusts related thereto, the applicable Law;plan sponsor or administrator, or against any fiduciary of any Copper Benefit Plan with respect to the operation thereof.
(7c) Section 5.10(c) of the Copper Disclosure Letter sets forth each Multiemployer Plan or Multiple Employer Plan to which Copper, any of its Subsidiaries or any of their respective ERISA Affiliates contributes or is obligated to contribute, or within the six (6) years preceding the date of this Agreement, contributed, or was obligated to contribute or under or with respect to which Copper otherwise has any current or contingent liability or obligation and separately identifies which Multiemployer Plans are in “endangered,” “critical,” or “critical and declining” status (within the meaning of Section 432 of the Code or Section 305 of ERISA). Except as set forth on Section 5.10(c) of the Copper Disclosure Letter and as, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect on Copper, none of Copper, any of its Subsidiaries or any of their respective ERISA Affiliates sponsors, maintains, contributes to or is obligated to contribute to, or within the six years preceding the date of this Agreement sponsored, maintained, contributed to, or was obligated to contribute to, or otherwise has any current or contingent liability or obligation under or with respect to: a Multiemployer Plan or Multiple Employer Plan, and none of Copper, any of its Subsidiaries or any of their respective ERISA Affiliates has, within the preceding six (6) years, withdrawn in a complete or partial withdrawal from any Multiemployer Plan or incurred any liability under Section 4202, 4204 or 4212(c) of ERISA or has been notified that any Multiemployer Plan listed in Section 5.10(c) has undergone or is expected to undergo a mass withdrawal or termination (or treatment of a plan amendment as termination).
(d) Except as, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect on Copper, each of the Copper Benefit Plans intended to be “qualified” within the meaning of Section 401(a) of the Code, has received a favorable determination letter or opinion letter as to its qualification or may rely upon a current advisory letter from the IRS and there are no existing circumstances or any events that have occurred that would reasonably be expected to adversely affect the qualified status of any such plan.
(e) Section 5.10(e) of the Copper Disclosure Letter sets forth each Copper Benefit Plan that is subject to Section 302 or Title IV of ERISA or Section 412, 430 or 4971 of the Code (each, a “Copper Title IV Plan”). With respect to each Copper Title IV Plan, except for matters that, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect on Copper, (A) there does not exist any accumulated funding deficiency within the meaning of Section 412 of the Code and all contributions required under Section 302 of ERISA have been timely made, whether or not waived, (B) no such Copper Title IV Plan is currently in “at risk” status within the meaning of Section 430 of the Code or Section 303(i) of ERISA, (C) no reportable event within the meaning of Section 4043(c) of ERISA for which the 30-day notice requirement has been waived, has occurred or is reasonably expected to result, (D) none of Copper, any of its Subsidiaries or any of their respective ERISA Affiliates has engaged in any transaction described in Section 4069 of ERISA, (E) all premiums to the Company Plans provides PBGC have been timely paid in full, (F) no liability (other than for payment premiums to the PBGC) has been or, to the Knowledge of an amount Copper, is expected to be incurred by Copper or provision any of a benefitits Subsidiaries and (G) the PBGC has not instituted proceedings to terminate any such Copper Title IV Plan. Except for matters that, the increase of a payment or benefit, the payment of a contingent amount or provision of a contingent benefit, or the acceleration of the payment, funding or vesting of an amount or benefit determined or occasioned, in whole individually or in partthe aggregate, would not reasonably be expected to have a Material Adverse Effect on Copper, there does not now exist, nor do any circumstances exist that could result in, any Controlled Group Liability that would be a liability following the Closing Effective Time, of Copper, any of its Subsidiaries or any of their respective ERISA Affiliates.
(f) Except as provided by reason of this Agreement, neither the execution and delivery of this Agreement or nor the consummation of the transactions contemplated hereby whether (either alone or together in conjunction with any other event; and
) will (8) no amounts payable under A) cause or result in any payment (including severance, unemployment compensation, “excess parachute payment” (within the Company Plans will fail to be deductible for federal income tax purposes by virtue meaning of Section 280G of the Code Code), forgiveness of indebtedness or otherwise) becoming due to any current or former director or any employee of Copper or its Subsidiaries under any Copper Benefit Plan, (B) increase any compensation or benefits otherwise payable under any Copper Benefit Plan or (C) result in any acceleration of the time of payment, funding or vesting of any such benefits.
(g) No Person is entitled to receive any additional payment (including any Tax gross-up or other payment) from Copper or any of its Subsidiaries as a result of the occurrence imposition of the excise Taxes required by Section 4999 of the Code or any Taxes required by Section 409A of the Code. No Copper Benefit Plan provides for payments or benefits in connection with the transactions contemplated by this AgreementAgreement that, either alone individually or in combination with another event.
(c) The Company and its Subsidiaries have not entered into the aggregate, would reasonably be expected to give rise to the payment of any employment or employment-related agreements (including change amount that would result in control agreements and offer letters) a loss of Tax deductions pursuant to which a named individual is a party, other than those set forth on Section 3.13(a) of the Company Disclosure Letter.
(d) Each Company Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A of the Code and related Treasury Department guidance has (i) been operated between January 1, 2005 and December 31, 2008, in good faith compliance with Section 409A of the Code and Notice 2005-01 and (ii) since January 1, 2009 (or such later date permitted under applicable guidance), been operated in compliance, and is in documentary compliance, in all material respects, with the requirements of Section 409A 280G of the Code.
(eh) Neither Except as, individually or in the Company nor aggregate, would not reasonably be expected to have a Material Adverse Effect on Copper, all Copper Benefit Plans subject to the laws of any Subsidiary has a binding commitment to create any additional material Company Plan, or any plan, agreement or arrangement that would be a material Company Plan if adopted, or to modify or terminate any existing material Company Plan, except as required by applicable Law.
(f) The ESOP is an “employee stock ownership plan” within the meaning of Section 4975(e)(7) jurisdiction outside of the Code. Neither the Company nor the ESOP hasUnited States (A) have been maintained in accordance with its terms, within the three year period immediately preceding the date of this AgreementApplicable Laws and all other applicable requirements, received any inquiry (B) that are intended to qualify for special Tax treatment meet all requirements for such treatment, (C) that are intended to be funded or notice from the IRS book-reserved are fully funded or any other governmental agency the effect of which is to question the qualification or status of the ESOP or any transaction entered into by the ESOP or the Company book reserved, as appropriate, based upon reasonable actuarial assumptions, and (with respect to the ESOP). The ESOP and the Company have filed all reports, returns or other documents in respect of the ESOP which are D) if required to be filed pursuant registered, has been registered and has been maintained in good standing with applicable regulatory authorities. No Copper Benefit Plan subject to the applicable provisions laws of any jurisdiction outside of the Code and ERISA and the regulations thereunder. All loans entered into by the ESOP United States is a “defined benefit plan” (the “ESOP Loans”) constitute “exempt loans” under Treasury Regulation Section 54.4975-7(b)(1)(iiias defined in ERISA, whether or not subject to ERISA). The securities held by the ESOP constitute “employer securities” under ERISA Section 407(d)(1) and Section 409(l) of the Code and “qualifying employer securities” under ERISA Section 407(d)(5) and Section 4975(e)(8) of the Code.
Appears in 1 contract
Sources: Merger Agreement (Cedar Fair L P)
Benefit Plans. (a) Section 3.13(a4.13(a)(i) of the Company Disclosure Letter contains Schedule sets forth a true and complete list of each material Company PlanBenefit Plan as of the date of this Agreement. For purposes Section 4.13(a)(ii) of the Company Disclosure Schedule sets forth a true and complete list of each material Company Benefit Agreement in effect as of the date of this Agreement, “Company Plan” means each “employee benefit plan” other than any agreement or arrangement mandated by (within and the meaning terms of Section 3(3which are governed substantially by) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”)), stock purchase, stock option, severance, employment, change-in-control, fringe benefit, bonus, incentive, deferred compensation, employee loan or other employee benefit plan, agreement, program, policy or other arrangement, whether or not subject to ERISA (including any funding mechanism therefor now in effect or required in the future as a result of the transactions contemplated by this Agreement or otherwise), whether written or unwritten, in each case (i) maintained by the Company or any of its Subsidiaries for current or former directors, employees or consultants of the Company or (ii) under which (A) any employee, director or consultant or former employee, director or consultant of the Company or any of its Subsidiaries has any present or future right to benefits and (B) the Company or any of its Subsidiaries has had or has any present or future liability or obligation to contributeApplicable Law. With respect to each material Company PlanBenefit Plan and material Company Benefit Agreement, the Company has furnished or made available to Parent a current, complete, and accurate and complete copy thereof(or to the extent no copy exists, an accurate summary) of (i) each such Company Benefit Plan or Company Benefit Agreement, including any amendments, and, to the extent applicable: (i) any related trust agreement or other funding instrumentmaterial amendments thereto, (ii) the most recent determinationany trust, opinion insurance, annuity or advisory letter of the Internal Revenue Service (the “IRS”), if applicableother funding instrument related thereto, (iii) any summary plan description or and other material written communications (or a description of any oral communications) by the Company or its Subsidiaries a Company Subsidiary to their employees Company Employees concerning the extent of the benefits provided under a Company Benefit Plan or Company Benefit Agreement and (iv) for the two most recent years and to the extent applicable, (A) audited financial statements, (B) actuarial or other valuation reports prepared with respect thereto (where such statements or reports are required to be prepared under Applicable Law or otherwise reasonably available), and (C) Form 5500 and attached schedules, (B) audited financial statements, and (C) actuarial valuation reports.
(b) Except as disclosed in Each Company Benefit Plan intended to be “qualified” or registered within the meaning of Section 3.13(b401(a) of the Company Disclosure Letter and except asCode (or any comparable provision under applicable non-U.S. laws) has received a favorable determination letter as to such qualification or registration from the IRS (or any comparable Governmental Entity), individually and, to the Knowledge of the Company, nothing has occurred, whether by action or in the aggregatefailure to act, has not had, and would not that could reasonably be expected to have, cause a Material Adverse Effect on the Company, with respect loss of such qualification. The most recent favorable determination plan for each Company Benefit Plan intended to be so “qualified” has been made available by the Company Plans:to Parent.
(1c) each Each Company Benefit Plan and Company Benefit Agreement has been established and administered in accordance material compliance with its terms and in compliance with the applicable provisions of ERISA, the Code and all other applicable Lawslaws, rules and regulations. Neither the Company nor any of the Company Subsidiaries has any Controlled Group Liability, and no circumstance exists that would reasonably be expected to result in any Controlled Group Liability for the six years preceding Company, Parent or any of their respective Subsidiaries after the Closing. As of the date hereof and, except as would not reasonably be expected to have a Material Adverse Effect as of the Closing, (i) there are no pending or threatened investigations, claims or lawsuits in respect of any Company Benefit Plan or Company Benefit Agreement, (ii) no facts or circumstances exist that could give rise to any such actions, suits, or claims, (iii) no written or oral communication has been received from the Pension Benefit Guaranty Corporation (“PBGC”) in respect of any Company Benefit Plan subject to Title IV of ERISA concerning the funded status of any such plan or any transfer of assets and liabilities from any such plan in connection with the transaction contemplated herein during the past two years, and (iv) no administrative investigation, audit, or other administrative proceedings by the PBGC, the Internal Revenue Service, or other governmental agencies are pending, threatened, or in progress (including any routine requests for information from the PBGC). For each Company Benefit Plan with respect to which a Form 5500 has been filed, no material change has occurred with respect to the matters covered by the most recent Form the last day of the period covered thereby. Except as would not reasonably be expected to result in any material liability to the Company or any of the Company Subsidiaries, no “reportable event, ” (as such term is defined in Section 4043 of ERISA, ) and no non-exempt “prohibited transaction, ” (as described such term is defined in Section 406 of ERISA or and Section 4975 of the Code, or failure to satisfy the minimum funding standards, within the meaning of Section 302 of ERISA and 412 of the Code, ) has occurred with respect to any Company Benefit Plan, and all contributions required to be made under the terms of any Company Plan have been timely made;
(2) each Company Plan intended to be qualified under Section 401(a) of the Code (A) has received a favorable determination, advisory and/or opinion letter, . Except as applicable, from the IRS that it is so qualified, (B) the trust maintained thereunder has been determined to be exempt from taxation under Section 501(a) of the Code and (C) to the Company’s knowledge, nothing has occurred since the date of such letter that could would not reasonably be expected to cause the loss of such qualified status of such Company Plan;
(3) there is no Action (including any investigation, audit or other administrative proceeding) by the Department of Labor, the Pension Benefit Guaranty Corporation, the IRS or any other Governmental Entity or by any plan participant or beneficiary pending, or to the knowledge have a Material Adverse Effect as of the CompanyClosing, threatened, relating no Company Benefit Plan has failed to meet the minimum funding standards (as determined under Section 303 of ERISA and Section 430 of the Code) applicable to such plan. Neither the Company Plans, any fiduciaries thereof to which the Company could have an indemnification obligation with respect to their duties to the Company Plans or the assets of nor any of the trusts Company Subsidiaries has incurred any current or projected liability in respect of post-employment or post-retirement health, medical or life insurance or other benefits for Company Employees, except for continuation coverage under Section 4980B of the Code or otherwise except as may be required pursuant to any other Applicable Law.
(d) No Company Benefit Plan or Company Benefit Agreement exists that would reasonably be expected to (i) entitle any Company Employee to any payment, benefit or right, or increase in payment, benefit or right, (ii) accelerate the time of payment or vesting or result in any payment or funding (through a grantor trust or otherwise) of compensation or benefits under, increase the amount payable or result in any other material obligation pursuant to, any of the Company Benefit Plans or Company Benefit Agreements, (iii) limit or restrict the right of the Company to merge, amend or terminate any of the Company Benefit Plans or Company Benefit Agreements or (iv) result in payments under any of the Company Benefit Plans or Company Benefit Agreements which would not be deductible under Section 280G of the Code, in each case as a result of the execution of this Agreement, Stockholder Approval, or the consummation of the transactions contemplated hereby (other than routine claims for benefitswhether alone or in connection with any subsequent event(s)).
(e) nor, to the knowledge No Company Benefit Plan is a “multiemployer plan” (as defined in Section 4001(a)(3) of ERISA) and neither the Company, are there facts or circumstances that exist that could reasonably be expect to give rise to any such Actions;
(4) no Company Plan is or, within the preceding six years, has been subject to Title IV of ERISA or subject to Section 412 of the Code and neither the Company nor any Person that Company Subsidiary, nor any organization which is a member of a “controlled group of corporations” with, or is under “common control” with, or is a member of the same “affiliated service group” organizations with the Company, in each case, as defined in Company or any Company Subsidiary within the meaning of Sections 414(b), (c), (m) or (o) of the Code, maintains or contributes to (or Code has in the past six years maintained at any time sponsored or contributed to) a multiemployer plan as defined in Section 3(37) of ERISA or a Title IV Plan;
(5) the Company and its Subsidiaries are not subject to any material liability, including additional contributions, fine, penalties or loss of Tax Deductions as a result of the administration or operation of any Company Plan that is a “group health plan” (as such term is defined in Section 5000(b)(1) of the Code);
(6) no Company Plan provides welfare benefits, including death or medical benefits (whether or not insured) beyond retirement or termination of service, other than coverage mandated solely by applicable Law;
(7) none of the Company Plans provides for payment of an amount or provision of a benefit, the increase of a payment or benefit, the payment of a contingent amount or provision of a contingent benefit, or the acceleration of the paymenthas or had any liability or obligation in respect of, funding or vesting of an amount or benefit determined or occasioned, in whole or in part, by reason of the execution of this Agreement or the consummation of the transactions contemplated hereby whether alone or together with any other event; and
(8) no amounts payable under the Company Plans will fail to be deductible for federal income tax purposes by virtue of Section 280G of the Code as a result of the occurrence of the transactions contemplated by this Agreement, either alone or in combination with another eventsuch multiemployer plan.
(cf) The Company and its Subsidiaries have not entered into any employment or employment-related agreements (including change in control agreements and offer letters) to which a named individual is a party, other than those Except as set forth on in Section 3.13(a4.13(f) of the Company Disclosure Letter.
(d) Each Schedule, no material Company Benefit Plan that is a “nonqualified deferred compensation plan” within maintained outside the meaning of Section 409A jurisdiction of the Code and related Treasury Department guidance has United States, or covers any employee residing or working primarily outside the United States (any such material Company Benefit Plan set forth in Section 4.13(f) of the Company Disclosure Schedule, “Foreign Benefit Plans”). With respect to any Foreign Benefit Plans, (i) all Foreign Benefit Plans have been operated between January 1established, 2005 maintained and December 31, 2008, administered in good faith material compliance with Section 409A their terms and all applicable statutes, laws, ordinances, rules, orders, decrees, judgments, writs, and regulations of the Code and Notice 2005-01 any controlling governmental authority or instrumentality and (ii) since January 1, 2009 (or such later date permitted under applicable guidance), been operated in compliance, and is in documentary compliance, in all material respects, with the requirements of Section 409A of the Code.
(e) Neither the Company nor any Subsidiary has a binding commitment to create any additional material Company Plan, or any plan, agreement or arrangement Foreign Benefit Plans that would be a material Company Plan if adopted, or to modify or terminate any existing material Company Plan, except as required by applicable Law.
(f) The ESOP is an “employee stock ownership plan” within the meaning of Section 4975(e)(7) of the Code. Neither the Company nor the ESOP has, within the three year period immediately preceding the date of this Agreement, received any inquiry or notice from the IRS or any other governmental agency the effect of which is to question the qualification or status of the ESOP or any transaction entered into by the ESOP or the Company (with respect to the ESOP). The ESOP and the Company have filed all reports, returns or other documents in respect of the ESOP which are required to be filed pursuant to funded are funded in accordance with the applicable provisions of the Code and ERISA and the regulations thereunder. All loans entered into by the ESOP (the “ESOP Loans”) constitute “exempt loans” under Treasury Regulation Section 54.4975-7(b)(1)(iii). The securities held by the ESOP constitute “employer securities” under ERISA Section 407(d)(1) and Section 409(l) of the Code and “qualifying employer securities” under ERISA Section 407(d)(5) and Section 4975(e)(8) of the Codefunding requirements.
Appears in 1 contract
Sources: Merger Agreement (Polymer Group Inc)
Benefit Plans. (ai) Section 3.13(a) of the No Company Disclosure Letter contains a true and complete list of each material Company Plan. For purposes of this Agreementhas ever maintained or contributed to, “Company Plan” means each “or now maintains or contributes to, any "employee pension benefit plan” " (within the meaning of as defined in Section 3(33(2) of the Employee Retirement Income Security Act of 1974, as amended (“"ERISA”")) (referred to herein as a "Pension Plan") or "employee welfare benefit plan" (as defined in Section 3(1) of ERISA) (referred to herein as a "Welfare Plan") except such Welfare Plans disclosed on Schedule 4(l)(i). Schedule 4(l)(i) also discloses any deferred compensation plan, bonus plan, incentive plan, disability or other group insurance plan, stock purchase, stock option, severance, employment, change-in-control, fringe benefit, bonus, incentive, deferred compensationoption plan, employee loan stock purchase plan, vacation plan, severance plan, sick leave plan or policy, holiday plan or policy, maternity leave plan or policy or any other employee benefit plan, agreement, program, policy or other arrangement, whether or not subject to ERISA agreement (including any funding mechanism therefor now in effect employment agreement or required in the future as a result of the transactions contemplated by this Agreement or otherwiseunion contracts), whether written arrangements or unwrittencommitments of any kind, in each case (i) maintained by the Company any Company, that is not a Pension Plan or any Welfare Plan. Seller has delivered to Buyer true, complete and correct copies of its Subsidiaries for current or former directors, employees or consultants of the Company or (ii) under which (A) each plan disclosed on Schedule 4(l)(i) (a "Company Plan") (or, in the case of any employeeunwritten Company Plans, director or consultant or former employeedescriptions thereof), director or consultant of the Company or any of its Subsidiaries has any present or future right to benefits and (B) the Company or any of its Subsidiaries has had or has any present or future liability or obligation to contribute. With most recent annual report on Form 5500 filed with the Internal Revenue Service with respect to each material Company Plan, the Company has furnished or made available to Parent a current, accurate and complete copy thereof, including Plan (if any amendments, and, to the extent applicable: (i) any related trust agreement or other funding instrumentsuch report was required by applicable law), (iiC) the most recent determinationsummary plan description for each Company Plan for which a summary plan description is required by applicable law and (4) each trust agreement and insurance or annuity contract relating to any Company Plan.
(ii) Each Company Plan has been administered in all material respects in accordance with its terms, opinion or advisory letter except as disclosed in Schedule 4(l)(ii). Each Company, its subsidiaries and all Company Plans are in compliance in all material respects with the applicable provisions of ERISA and the Internal Revenue Service Code of 1986, as amended (the “IRS”"Code"), if applicable, (iii) any summary plan description or other material written communications by the Company or its Subsidiaries to their employees concerning the extent of the benefits provided under a Company Plan and (iv) the most recent (A) Form 5500 and attached schedules, (B) audited financial statements, and (C) actuarial valuation reports.
(b) except as disclosed in Schedule 4(l)(ii). Except as disclosed in Section 3.13(b) of the Company Disclosure Letter Schedule 4(l)(ii), all reports, returns and except as, individually or in the aggregate, has not had, and would not reasonably be expected to have, a Material Adverse Effect on the Company, similar documents with respect to the Company Plans required to be filed with any governmental agency or distributed to any Company Plan participant have been duly and timely filed or distributed. Except as disclosed in Schedule 4(l)(ii), there are no investigations by any governmental agency, termination proceedings or other claims (except claims for benefits payable in the normal operation of the Company Plans:), suits or proceedings against or involving any Company Plan or asserting any rights or claims to benefits under any Company Plan that could give rise to any material liability, and there are not any facts that could give rise to any material liability in the event of any such investigation, claim, suit or proceeding.
(1iii) Schedule 4(l)(iii) discloses whether each Company Welfare Plan has been established and administered in accordance with its terms and in compliance with the applicable provisions of ERISAis (i) unfunded, the Code and all other applicable Laws, and in the six years preceding the date hereof no reportable event(ii) funded through a "welfare benefit fund", as such term is defined in Section 4043 of ERISA, no prohibited transaction, as described in Section 406 of ERISA or Section 4975 419(e) of the Code, or failure to satisfy the minimum other funding standards, within the meaning of Section 302 of ERISA and 412 of the Code, has occurred with respect mechanism or (iii) insured. Each Welfare Plan (including any Welfare Plan covering retirees or other former employees) may be amended or terminated without material liability to any Company Plan, on or at any time after the Closing Date. The Companies and all contributions required to be made under its subsidiaries comply with the terms applicable requirements of any Company Plan have been timely made;
(2) each Company Plan intended to be qualified under Section 401(a4980B(f) of the Code (A) has received with respect to each Company Plan that is a favorable determination, advisory and/or opinion lettergroup health plan, as applicable, from the IRS that it such term is so qualified, (B) the trust maintained thereunder has been determined to be exempt from taxation under defined in Section 501(a5000(b)(1) of the Code and (C) to the Company’s knowledge, nothing has occurred since the date of such letter that could reasonably be expected to cause the loss of such qualified status of such Company Plan;Code.
(3iv) there is no Action (including any investigation, audit or other administrative proceedingSeller has listed on Schedule 4(l)(iv) by the Department of Labor, the each Pension Benefit Guaranty Corporation, the IRS or any other Governmental Entity or by any plan participant or beneficiary pending, or to the knowledge of the Company, threatened, relating to the Company Plans, any fiduciaries thereof to which the Company could have an indemnification obligation with respect to their duties to the Company Plans or the assets of any of the trusts under any of the Company Plans (other than routine claims for benefits) nor, to the knowledge of the Company, are there facts or circumstances that exist that could reasonably be expect to give rise to any such Actions;
(4) no Company Plan is or, within the preceding six years, has been subject to Title IV of ERISA or subject to Section 412 of the Code and neither the Company nor (a "Seller Pension Plan") maintained or contributed to by any Person that person or entity that, together with Seller, is treated as a member of a “controlled group of corporations” with, or is single employer under “common control” with, or is a member of the same “affiliated service group” with the Company, in each case, as defined in Sections Section 414(b), (c), (m) or (o) of the CodeCode (each a "Commonly Controlled Entity"). Except as disclosed in Schedule 4(l)(iv), maintains (A) all contributions to each Seller Pension Plan that may have been required to be made in accordance with Section 302 of ERISA or contributes Section 412 of the Code have been timely made, (B) there has been no application for or waiver of the minimum funding standards imposed by Section 412 of the Code with respect to any Seller Pension Plan and (or C) no Seller Pension Plan has an "accumulated funding deficiency" within the meaning of Section 412(a) of the Code as of the most recent plan year.
(v) Except as disclosed in the past six years maintained or contributed to) a multiemployer plan Schedule 4(l)(v), no Seller Pension Plan has been terminated nor have there been any reportable events" (as defined in Section 3(374043 of ERISA and the regulations thereunder) with respect thereto.
(vi) With respect to any Seller Pension Plan subject to Title IV of ERISA, no Commonly Controlled Entity has incurred any material liability to such Seller Pension Plan or to the Pension Benefit Guaranty Corporation other than for the payment of premiums, all of which have been paid when due.
(vii) Except as disclosed in Schedule 4(l)(vii), at no time within the five years preceding the Closing Date has Seller or any Commonly Controlled Entity been required to contribute to any "multiemployer plan" (as defined in Section 4001(a)(3) of ERISA ERISA), and neither Seller nor any Commonly Controlled Entity has incurred any withdrawal liability, within the meaning of Section 4201 of ERISA, which liability has not been fully paid as of the date hereof, or announced an intention to withdraw, but not yet completed such withdrawal, from any multiemployer plan. Except as disclosed on Schedule 4(l)(vii), no action has been taken and no circumstances exist that, alone or with the passage of time, could result in either a Title IV Plan;partial or complete withdrawal from any multiemployer plan. Schedule 4(l)(vii) lists for each multiemployer plan, Seller's best estimate of the amount of withdrawal liability that would be incurred if each Commonly Controlled Entity were to make a complete withdrawal from such plan as of the Closing Date. The aggregate amount of withdrawal liability from such complete withdrawal from all such plans will not exceed $10,000.
(5viii) Schedule 4(l)(viii) sets forth and identifies all agreements to which any Company is a party, whether oral or in writing, with present or former officers, directors or employees of, or consultants to, any Company which (A) obligate any Company to pay, on any date or dates during the remaining term of such agreement, an aggregate amount in excess of $10,000, or (B) cannot be terminated on 60 days' notice.
(ix) Neither any Company and its Subsidiaries are not subject nor any related person (within the meaning of section 9701(c)(2) of the Code) has any liability under subtitle J of the Code (Coal Industry Health Benefits).
(x) Except as set forth in Schedule 4(l)(x), no employee or former employee with any Company or any beneficiary thereof will become entitled to any material liabilitybonus, including additional contributionsretirement, fineseverance, penalties job security or loss of Tax Deductions similar benefits or any enhanced benefits as a result of the administration or operation of any Company Plan that is a “group health plan” (as such term is defined in Section 5000(b)(1) of the Code);
(6) no Company Plan provides welfare benefits, including death or medical benefits (whether or not insured) beyond retirement or termination of service, other than coverage mandated solely by applicable Law;
(7) none of the Company Plans provides for payment of an amount or provision of a benefit, the increase of a payment or benefit, the payment of a contingent amount or provision of a contingent benefit, or the acceleration of the payment, funding or vesting of an amount or benefit determined or occasioned, in whole or in part, by reason of the execution of this Agreement or the consummation of the transactions contemplated hereby whether alone or together with that will constitute post closing obligation of any other event; and
(8) no amounts payable under the Company Plans will fail to be deductible for federal income tax purposes by virtue of Section 280G of the Code as a result of the occurrence of the transactions contemplated by this Agreement, either alone or in combination with another eventCompanies.
(c) The Company and its Subsidiaries have not entered into any employment or employment-related agreements (including change in control agreements and offer letters) to which a named individual is a party, other than those set forth on Section 3.13(a) of the Company Disclosure Letter.
(d) Each Company Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A of the Code and related Treasury Department guidance has (i) been operated between January 1, 2005 and December 31, 2008, in good faith compliance with Section 409A of the Code and Notice 2005-01 and (ii) since January 1, 2009 (or such later date permitted under applicable guidance), been operated in compliance, and is in documentary compliance, in all material respects, with the requirements of Section 409A of the Code.
(e) Neither the Company nor any Subsidiary has a binding commitment to create any additional material Company Plan, or any plan, agreement or arrangement that would be a material Company Plan if adopted, or to modify or terminate any existing material Company Plan, except as required by applicable Law.
(f) The ESOP is an “employee stock ownership plan” within the meaning of Section 4975(e)(7) of the Code. Neither the Company nor the ESOP has, within the three year period immediately preceding the date of this Agreement, received any inquiry or notice from the IRS or any other governmental agency the effect of which is to question the qualification or status of the ESOP or any transaction entered into by the ESOP or the Company (with respect to the ESOP). The ESOP and the Company have filed all reports, returns or other documents in respect of the ESOP which are required to be filed pursuant to the applicable provisions of the Code and ERISA and the regulations thereunder. All loans entered into by the ESOP (the “ESOP Loans”) constitute “exempt loans” under Treasury Regulation Section 54.4975-7(b)(1)(iii). The securities held by the ESOP constitute “employer securities” under ERISA Section 407(d)(1) and Section 409(l) of the Code and “qualifying employer securities” under ERISA Section 407(d)(5) and Section 4975(e)(8) of the Code.
Appears in 1 contract
Benefit Plans. (a) Section 3.13(a3.18(a) of the Company Seller Disclosure Letter contains Schedules sets forth a true and complete list list, as of each material Company Plan. For purposes the date of this Agreement, “Company Plan” means each “employee benefit plan” (within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”)), stock purchase, stock option, severance, employment, change-in-control, fringe benefit, bonus, incentive, deferred compensation, employee loan or other employee benefit plan, agreement, program, policy or other arrangement, whether or not subject to ERISA (including any funding mechanism therefor now in effect or required in the future as a result of the transactions contemplated by this Agreement or otherwise), whether written or unwritten, in each case (i) maintained by the Company each material Benefit Plan, (ii) any Benefit Plan that is an employment contract that cannot be terminated at will, (iii) any Benefit Plan that is a Multiple Employer Plan and (iv) any Multiemployer Plan to which Seller or any of its Subsidiaries for current or former directors, employees or consultants of the Company or contributes.
(iib) under which (A) any employee, director or consultant or former employee, director or consultant of the Company or any of its Subsidiaries has any present or future right to benefits and (B) the Company or any of its Subsidiaries has had or has any present or future liability or obligation to contribute. With respect to each material Company Benefit Plan, the Company Seller has furnished or made available to Parent a current, accurate and complete copy thereof, including any amendments, and, to the extent applicable: Purchaser (i) the summary plan description (or the plan document if there is not a summary plan description for any related trust agreement such plan); (ii) all insurance Contracts and similar instruments with respect to each such funded or other insured Benefit Plan; and (iii) copies of the most recently issued favorable determination or opinion letters with respect to each such Benefit Plan that is intended to be qualified under Code Section 401(a).
(c) With respect to any Benefit Plan that is subject to Title IV of ERISA, (i) there does not exist any failure to meet the “minimum funding instrumentstandard” of Section 412 of the Code or Section 302 of ERISA (whether or not waived), (ii) the most recent determination, opinion or advisory letter such plan is not in “at-risk” status for purposes of Section 430 of the Internal Revenue Service (the “IRS”), if applicable, Code and (iii) the PBGC has not instituted proceedings to terminate any summary plan description or other material written communications by the Company or its Subsidiaries to their employees concerning the extent of the benefits provided under a Company Plan and (iv) the most recent (A) Form 5500 and attached schedules, (B) audited financial statements, and (C) actuarial valuation reports.
(b) such plan. Except as disclosed in Section 3.13(b) of the Company Disclosure Letter and except as, individually or in the aggregate, has not had, and would not reasonably be expected to havebe material to the Business, taken as a Material Adverse Effect on whole, or adversely affect the Companyqualified status of each such Benefit Plan, with respect to the Company Plans:
(1) each Company any Benefit Plan has been established and administered in accordance with its terms and in compliance with the applicable provisions that is subject to Title IV of ERISA, the Code and all other applicable Laws, and in the six years preceding the date hereof (i) no reportable event, as defined in Section 4043 of ERISA, no prohibited transaction, as described in Section 406 of ERISA or Section 4975 of the Code, or failure to satisfy the minimum funding standards, event within the meaning of Section 302 4043(c) of ERISA and 412 of the Code, has occurred in the two (2) years prior to the date hereof and (ii) all premiums to the Pension Benefit Guaranty Corporation (the “PBGC”) have been timely paid in full.
(d) Neither the Seller nor any of its ERISA Affiliates contributes to or is obligated to contribute to, or within the six (6) years preceding this Agreement contributed to, or was obligated to contribute to, a Multiemployer Plan or a Multiple Employer Plan. Except as would not reasonably be expected to be material to the Business, taken as a whole, neither Seller nor any ERISA Affiliate has incurred, or is reasonably expected to incur, any liability to a Multiemployer Plan or Multiple Employer Plan as a result of a complete or partial withdrawal (as those terms are defined in Part I of Subtitle E of Title IV of ERISA) from any such plan, and Seller and its ERISA Affiliates have timely satisfied all of their respective contribution obligations with respect to any Company Plansuch Multiemployer Plan and Multiple Employer Plan under any such plan, and all contributions required to be made under the terms of any Company Plan have been timely made;applicable collective bargaining agreement or applicable Law.
(2e) each Company Each Benefit Plan that is intended to be qualified under Section 401(a) of the Code (A) has received is the subject of a favorable determination, advisory and/or determination letter or opinion letter, as applicable, letter from the IRS IRS, and there are no existing circumstances or events that it is so qualified, (B) the trust maintained thereunder has been determined to be exempt from taxation under Section 501(a) of the Code and (C) to the Company’s knowledge, nothing has occurred since the date of such letter that could would reasonably be expected to cause the a loss of such qualified status of each such Company Benefit Plan;
(3) there is . All Benefit Plans comply and have been operated in all material respects in accordance with their terms and the requirements of Law applicable thereto. There are no Action (including any investigationmaterial actions, audit suits or other administrative proceeding) by the Department of Labor, the Pension Benefit Guaranty Corporation, the IRS or any other Governmental Entity or by any plan participant or beneficiary pending, or to the knowledge of the Company, threatened, relating to the Company Plans, any fiduciaries thereof to which the Company could have an indemnification obligation with respect to their duties to the Company Plans or the assets of any of the trusts under any of the Company Plans claims (other than routine claims for benefits) norpending or, to the knowledge Knowledge of Seller and except as would not reasonably be expected to be material to the Business, taken as a whole, threatened, involving both (a) any Benefit Plan, and (b) a Business Employee’s benefits. Except as would not reasonably be expected to be material to the Business, taken as a whole, to the Knowledge of Seller, all contributions, premiums and other payments required to be made by Seller to the Benefit Plans have been made or are accrued in the Business Financial Information.
(f) Section 3.18(f) of the CompanySeller Disclosure Schedules sets forth each Benefit Plan that provides for post-retirement health, are there facts or circumstances that exist that could reasonably be expect to give rise to any such Actions;
medical and life insurance benefits for Business Employees (4) no Company Plan is or, within the preceding six years, has been subject to other than statutory liability for providing group health plan continuation coverage under Part 6 of Subtitle B of Title IV I of ERISA or subject to and Section 412 4980B of the Code and neither the Company nor any Person that is a member of a “controlled group of corporations” with, or is under “common control” with, or is a member of the same “affiliated service group” with the Company, in each case, as defined in Sections 414(bapplicable Law), (c), (m) or (o) of the Code, maintains or contributes to (or has in the past six years maintained or contributed to) a multiemployer plan as defined in Section 3(37) of ERISA or a Title IV Plan;.
(5g) the Company and its Subsidiaries are not subject to any material liability, including additional contributions, fine, penalties or loss of Tax Deductions as a result of the administration or operation of any Company Plan that is a “group health plan” (as such term is defined in Section 5000(b)(1) of the Code);
(6) no Company Plan provides welfare benefits, including death or medical benefits (whether or not insured) beyond retirement or termination of service, other than coverage mandated solely by applicable Law;
(7) none of the Company Plans provides for payment of an amount or provision of a benefit, the increase of a payment or benefit, the payment of a contingent amount or provision of a contingent benefit, or the acceleration of the payment, funding or vesting of an amount or benefit determined or occasioned, in whole or in part, by reason of Neither the execution of this Agreement or nor the consummation of the transactions contemplated hereby whether alone or together with any other event; and
(8) no amounts payable under the Company Plans Transaction will fail to be deductible for federal income tax purposes by virtue of Section 280G of the Code as a result of the occurrence of the transactions contemplated by this Agreement, either alone or in combination with another event.
(c) The Company and its Subsidiaries have not entered into any employment or employment-related agreements (including change in control agreements and offer letters) to which a named individual is a party, other than those set forth on Section 3.13(a) of the Company Disclosure Letter.
(d) Each Company Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A of the Code and related Treasury Department guidance has (i) been operated between January 1result in any material payment becoming due to a Business Employee under a Benefit Plan, 2005 and December 31, 2008, in good faith compliance with Section 409A of the Code and Notice 2005-01 and (ii) since January 1, 2009 materially increase any benefits payable to a Business Employee under a Benefit Plan or (or such later date permitted under applicable guidance), been operated iii) result in compliance, and is in documentary compliance, in all material respects, with the requirements of Section 409A acceleration of the Codetime of payment or vesting of benefits of a Business Employee under a Benefit Plan.
(e) Neither the Company nor any Subsidiary has a binding commitment to create any additional material Company Plan, or any plan, agreement or arrangement that would be a material Company Plan if adopted, or to modify or terminate any existing material Company Plan, except as required by applicable Law.
(f) The ESOP is an “employee stock ownership plan” within the meaning of Section 4975(e)(7) of the Code. Neither the Company nor the ESOP has, within the three year period immediately preceding the date of this Agreement, received any inquiry or notice from the IRS or any other governmental agency the effect of which is to question the qualification or status of the ESOP or any transaction entered into by the ESOP or the Company (with respect to the ESOP). The ESOP and the Company have filed all reports, returns or other documents in respect of the ESOP which are required to be filed pursuant to the applicable provisions of the Code and ERISA and the regulations thereunder. All loans entered into by the ESOP (the “ESOP Loans”) constitute “exempt loans” under Treasury Regulation Section 54.4975-7(b)(1)(iii). The securities held by the ESOP constitute “employer securities” under ERISA Section 407(d)(1) and Section 409(l) of the Code and “qualifying employer securities” under ERISA Section 407(d)(5) and Section 4975(e)(8) of the Code.
Appears in 1 contract
Benefit Plans. (a) Section 3.13(a4.10(a) of the Company Parent Disclosure Letter contains Schedule includes a true and complete list of each material Company of the following (collectively referred to as the “Parent Benefit Plans,” and each individually referred to as a “Parent Benefit Plan. For purposes ”) that is sponsored, maintained or contributed to or by Parent or any of this Agreementits Subsidiaries or with respect to which Parent could have any liability, “Company Plan” means or has been so sponsored, maintained or contributed to within the last six (6) years by Parent or any of its Subsidiaries:
(i) each “employee benefit plan,” (within the meaning of as such term is defined in Section 3(3) of ERISA, (including employee benefit plans, such as foreign plans, which are not subject to the Employee Retirement Income Security Act provisions of 1974ERISA); and
(ii) each material equity option plan, as amended (“ERISA”))equity appreciation rights plan, stock purchaserestricted equity plan, stock optionphantom equity plan, severanceequity based compensation arrangement, employmentcollective bargaining agreement, change-in-controlbonus plan or arrangement, fringe benefitincentive award plan or arrangement, bonusvacation policy, incentiveseverance pay plan, policy or agreement, deferred compensationcompensation agreement or arrangement, employee loan executive compensation or supplemental income arrangement, change in control plan or agreement, retention plan, agreement or arrangement, consulting agreement, employment agreement and each other employee benefit plan, agreement, arrangement, program, policy policy, practice or other arrangementunderstanding that is not described in Section 4.10(a)(i).
(b) Parent has made available to the Company, whether or not subject to ERISA (including any funding mechanism therefor now in effect or required in the future as a result upon request, true, correct and complete copies of each of the transactions contemplated by this Agreement or otherwise)Parent Benefit Plans, whether written or unwrittenincluding all amendments thereto. Parent has also made available to Company, in each case (i) maintained by the Company or any of its Subsidiaries for current or former directors, employees or consultants of the Company or (ii) under which (A) any employee, director or consultant or former employee, director or consultant of the Company or any of its Subsidiaries has any present or future right to benefits and (B) the Company or any of its Subsidiaries has had or has any present or future liability or obligation to contribute. With with respect to each material Company Plan, the Company has furnished or made available to Parent a current, accurate Benefit Plan and complete copy thereof, including any amendments, and, to the extent applicable, true, correct and complete copies of: (i) any related trust agreement the most recent annual or other funding instrumentreports filed with each Governmental Body and all schedules thereto, (ii) the most recent determinationinsurance contract and other funding agreement, opinion or advisory letter of the Internal Revenue Service (the “IRS”), if applicableand all amendments thereto, (iii) any summary plan description the most recent determination letter or other material written communications opinion letter issued by the Company or its Subsidiaries to their employees concerning the extent of the benefits provided under a Company Plan IRS, and (iv) the most recent (A) Form 5500 and attached schedulesall material notices, (B) audited financial statements, and (C) actuarial valuation reportsletters or other correspondence from any Governmental Body.
(bc) Neither Parent nor any of Parent’s ERISA Affiliates contributes to or has any obligation to contribute to, or has at any time within six years prior to the Closing Date contributed to or had an obligation to contribute to, and no Parent Benefit Plan is (i) a multiemployer plan within the meaning of Section 3(37) of ERISA or (ii) a plan subject to Title IV of ERISA, Section 302 of ERISA or Section 412 of the Code. No Parent Benefit Plan is funded through a trust that is intended to be exempt from U.S. federal income taxation pursuant to Section 501(c)(9) of the Code.
(d) Except as disclosed in Section 3.13(b) of the Company Disclosure Letter and except as, individually or in the aggregate, has not had, and would not reasonably be expected to have, a Material Adverse Effect on the Company, with respect result in material liability to the Company PlansParent or any of its Subsidiaries:
(1i) Parent and its Subsidiaries have performed all material obligations, whether arising by operation of any Legal Requirement or by contract, required to be performed by it or them in connection with the Parent Benefit Plans, and there have been no defaults or violations by any other party to the Parent Benefit Plans;
(ii) (A) all material reports and disclosures relating to the Parent Benefit Plans required to be filed with or furnished to Governmental Bodies, Parent Benefit Plan participants or Parent Benefit Plan beneficiaries have been filed or furnished in accordance with applicable Legal Requirements in a timely manner, (B) each Company Parent Benefit Plan has been established documented, operated and administered in accordance substantial compliance with its terms governing documents and applicable Legal Requirements, and (C) each Parent Benefit Plan that could be a “nonqualified deferred compensation” arrangement under Section 409A of the Code is in compliance with the applicable provisions of ERISA, the Code and all other applicable Laws, and in the six years preceding the date hereof no reportable event, as defined in Section 4043 of ERISA, no prohibited transaction, as described in Section 406 of ERISA or Section 4975 409A of the Code, and no service provider is entitled to a Tax gross-up or failure to satisfy the minimum funding standards, within the meaning of similar payment for any Tax or interest that may be due under Section 302 of ERISA and 412 409A of the Code, has occurred with respect to any Company Plan, and all contributions required to be made under the terms of any Company Plan have been timely made;
(2iii) each Company Plan of the Parent Benefit Plans intended to be qualified under Section 401(a) of the Code (A) satisfies the requirements of Section 401(a) of the Code, (B) is maintained pursuant to a prototype document approved by the IRS, and is entitled to rely on a favorable opinion letter issued by the IRS with respect to such prototype document, or has received a favorable determination, advisory and/or opinion letter, as applicable, determination letter from the IRS that it is so qualifiedregarding such qualified status, (B) the trust maintained thereunder has been determined to be exempt from taxation under Section 501(a) of the Code and (C) has been amended as required by applicable Legal Requirements to the Company’s knowledgemaintain qualified status, nothing and (D) has occurred since the date of such letter not been amended or operated in a way that could reasonably be expected to cause the loss of would adversely affect such qualified status of such Company Planstatus;
(3iv) there is are no Action (including any investigation, audit or other administrative proceeding) by the Department of Labor, the Pension Benefit Guaranty Corporation, the IRS or any other Governmental Entity or by any plan participant or beneficiary pending, or to the knowledge of the Company, threatened, relating to the Company Plans, any fiduciaries thereof to which the Company could have an indemnification obligation with respect to their duties to the Company Plans or the assets of any of the trusts under any of the Company Plans claims pending (other than routine claims for benefits) noror, to the knowledge Knowledge of Parent, threatened against, or with respect to, any of the Company, are there facts Parent Benefit Plans or circumstances that exist that could reasonably be expect to give rise to any such Actionstheir assets;
(4v) no Company all contributions required to be made to the Parent Benefit Plans pursuant to their terms and provisions or pursuant to applicable Legal Requirements have been timely made and all benefits accrued under any unfunded Parent Benefit Plan is orhave been paid, within accrued or otherwise adequately reserved to the preceding six yearsextent required by, has been subject to Title IV of ERISA or subject to Section 412 of the Code and neither the Company nor any Person that is a member of a “controlled group of corporations” in accordance with, or is GAAP;
(vi) as to any Parent Benefit Plan intended to be qualified under “common control” with, or is a member of the same “affiliated service group” with the Company, in each case, as defined in Sections 414(b), (c), (m) or (oSection 401(a) of the Code, maintains there has been no termination or contributes to partial termination of the Parent Benefit Plan within the meaning of Section 411(d)(3) of the Code;
(vii) no act, omission or transaction has occurred which would result in the past six years maintained imposition on Parent, directly or contributed toindirectly, of (A) breach of fiduciary duty liability damages under Section 409 of ERISA, (B) a multiemployer plan as defined in penalty assessed pursuant to Section 3(37) 502 of ERISA or (C) a Title IV PlanTax imposed pursuant to Chapter 43 of Subtitle D of the Code;
(5viii) there is no matter pending (other than routine qualification determination filings) with respect to any of the Parent Benefit Plans before any Governmental Body; and
(ix) the Company execution and delivery of this Agreement and the consummation of the Transactions will not (A) require Parent or any of its Subsidiaries are to make a larger contribution to, or pay greater compensation, payments or benefits under, any Parent Benefit Plan or under any Contract than it otherwise would, whether or not subject some other subsequent action or event would be required to cause such payment or provision to be triggered, or (B) create or give rise to any material liabilityadditional vested rights or service credits under any Parent Benefit Plan or under any Contract.
(e) Neither Parent nor any of its Subsidiaries is a party to any Contract, including additional contributionsnor has Parent or any of its Subsidiaries established any policy or practice, fine, penalties requiring it to make a payment or loss provide any other form of Tax Deductions as a result compensation or benefit to any Person performing services for Parent or any of its Subsidiaries upon termination of such services that would not be payable or provided in the absence of the administration consummation of the Transactions.
(f) In connection with the consummation of the Transactions, no payments of money or operation property, acceleration of benefits, or provisions of other rights have or will be made under this Agreement, under any Company agreement, plan or other program contemplated in this Agreement, under the Parent Benefit Plans or under any Contract that, in the aggregate, would be reasonably likely to result in imposition of the sanctions imposed under Sections 280G and 4999 of the Code, whether or not some other subsequent action or event would be required to cause such payment, acceleration or provision to be triggered.
(g) Neither Parent nor any of its Subsidiaries has any commitment, intention or understanding to create, modify or terminate any Parent Benefit Plan. Each Parent Benefit Plan that is a an “group health employee benefit plan,” (as such term is defined in Section 5000(b)(13(3) of the Code);
(6) no Company Plan provides welfare benefitsERISA, including death may be unilaterally amended or medical terminated in its entirety without liability except as to benefits (whether accrued thereunder prior to such amendment or not insured) beyond retirement or termination of service, other than coverage mandated solely by applicable Law;
(7) none of the Company Plans provides for payment of an amount or provision of a benefit, the increase of a payment or benefit, the payment of a contingent amount or provision of a contingent benefit, or the acceleration of the payment, funding or vesting of an amount or benefit determined or occasioned, in whole or in part, by reason of the execution of this Agreement or the consummation of the transactions contemplated hereby whether alone or together with any other event; and
(8) no amounts payable under the Company Plans will fail to be deductible for federal income tax purposes by virtue of Section 280G of the Code as a result of the occurrence of the transactions contemplated by this Agreement, either alone or in combination with another eventtermination.
(ch) The Company and its Subsidiaries have not entered into any employment or employment-related agreements (including change in control agreements and offer letters) to which a named individual is a party, other than those set forth on Section 3.13(a) of the Company Disclosure Letter.
(d) Each Company Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A of the Code and related Treasury Department guidance has (i) been operated between January 1, 2005 and December 31, 2008, in good faith compliance with Section 409A of the Code and Notice 2005-01 and (ii) since January 1, 2009 (or such later date permitted under applicable guidance), been operated in compliance, and is in documentary compliance, in all material respects, with the requirements of Section 409A of the Code.
(e) Neither the Company nor any Subsidiary has a binding commitment to create any additional material Company Plan, or any plan, agreement or arrangement that would be a material Company Plan if adopted, or to modify or terminate any existing material Company Plan, except as required by applicable Law.
(f) The ESOP is an “employee stock ownership plan” within the meaning of Section 4975(e)(7) of the Code. Neither the Company nor the ESOP has, within the three year period immediately preceding the date of this Agreement, received any inquiry or notice from the IRS or any other governmental agency the effect of which is to question the qualification or status of the ESOP or any transaction entered into by the ESOP or the Company (with respect Except to the ESOP). The ESOP and the Company have filed all reports, returns or other documents in respect of the ESOP which are extent required to be filed pursuant to the applicable provisions of the Code and ERISA and the regulations thereunder. All loans entered into by the ESOP (the “ESOP Loans”) constitute “exempt loans” under Treasury Regulation Section 54.4975-7(b)(1)(iii). The securities held by the ESOP constitute “employer securities” under ERISA Section 407(d)(1) and Section 409(l4980B(f) of the Code and “qualifying employer securities” under the corresponding provisions of ERISA Section 407(d)(5or other applicable Legal Requirements, no Parent Benefit Plan or Contract provides retiree medical or retiree life insurance benefits to any Person, and Parent is not contractually or otherwise obligated (whether or not in writing) to, and Section 4975(e)(8) Parent has never represented that it will, provide any Person with life insurance or medical benefits upon retirement or termination of the Codeemployment.
Appears in 1 contract
Benefit Plans. (a) Section 3.13(a2.17(a) of the Company Disclosure Letter contains a true Schedule sets forth an accurate and complete list of each material all Employee Plans (other than equity grant notices with respect to awards disclosed on Section 2.3(d) of the Company PlanDisclosure Schedule and that do not deviate from the forms delivered or made available to Parent). For purposes To the extent applicable, the Company has either delivered or made available to Parent, prior to the execution of this Agreement, “Company with respect to each Employee Plan” means each “employee benefit plan” (within , accurate and complete copies of: the meaning of Section 3(3) following in existence as of the Employee Retirement Income Security Act of 1974date hereof: (A) all current plan documents and all amendments thereto, as amended (“ERISA”))and all current, stock purchaserelated trust, stock optioninsurance, severance, employment, change-in-control, fringe benefit, bonus, incentive, deferred compensation, employee loan annuity or other employee benefit planfunding documents, agreement, program, policy or other arrangement, whether or not subject to ERISA (including any funding mechanism therefor now in effect or required and in the future as a result case of unwritten Employee Plans, written descriptions thereof, (B) the transactions contemplated by this Agreement or otherwiseannual actuarial valuation, if any, and the annual reports (Form Series 5500 and all schedules and financial statements attached thereto), whether written or unwritten, in each case for each of the last three complete plan years, (iC) maintained all material correspondence to or from the IRS, the United States Department of Labor or any other Governmental Body with respect to an Employee Plan, (D) all determination letters, rulings, opinion letters, information letters or advisory opinions issued by the Company IRS, the United States Department of Labor, or any of its Subsidiaries other Governmental Body, (E) nondiscrimination and coverage testing results for current or former directors, employees or consultants each of the Company or (ii) under which (A) any employeethree most recent plan years, director or consultant or former employee, director or consultant of the Company or any of its Subsidiaries has any present or future right to benefits and (B) the Company or any of its Subsidiaries has had or has any present or future liability or obligation to contribute. With respect to each material Company Plan, the Company has furnished or made available to Parent a current, accurate and complete copy thereof, including any amendments, and, to the extent applicable: (i) any related trust agreement or other funding instrument, (iiF) the most recent determination, opinion or advisory letter of the Internal Revenue Service (the “IRS”), if applicable, (iii) any summary plan description or other descriptions and any material written communications by the Company or its Subsidiaries to their employees concerning the extent of the benefits provided under a Company Plan and (iv) the most recent (A) Form 5500 and attached schedules, (B) audited financial statements, and (C) actuarial valuation reportsmodifications thereto.
(b) Except as disclosed in Neither the Company nor any ERISA Affiliate sponsors, contributes to or is required to contribute or has ever sponsored, maintained, contributed to, been required to contribute to, or otherwise has incurred or may incur any liability (contingent or otherwise) with respect to, (i) a plan subject to Title IV or Section 3.13(b) 302 of ERISA or Section 412 or 4971 of the Company Disclosure Letter and except asCode, individually including any “single employer” defined benefit plan or in the aggregate, has not had, and would not reasonably be expected to have, a Material Adverse Effect on the Company, with respect to the Company Plans:
(1) any “multiemployer plan,” each Company Plan has been established and administered in accordance with its terms and in compliance with the applicable provisions of ERISA, the Code and all other applicable Laws, and in the six years preceding the date hereof no reportable event, as defined in Section 4043 4001 of ERISA, no prohibited transaction, as described in Section 406 or (ii) a plan that has two or more contributing sponsors at least two of ERISA or Section 4975 of the Code, or failure to satisfy the minimum funding standardswhom are not under common control, within the meaning of Section 302 4063 of ERISA. Neither the Company nor any ERISA and 412 Affiliate has incurred any Controlled Group Liability that has not been paid in full, nor to the knowledge of the CodeCompany, has occurred with respect do any circumstances exist that could reasonably be expected to result in any Company Plan, and all contributions required to be made under Controlled Group Liability becoming a liability of Parent or Merger Sub or any of their respective Affiliates. No Employee Plan holds or invests in any “qualifying employer securities” within the terms meaning of any Company Plan have been timely made;Section 407(d)(5) of ERISA.
(2c) each Company Each Employee Plan that is intended to be qualified under Section 401(a) of the Code (A) has received obtained a favorable determination, advisory and/or determination letter (or opinion letter, if applicable) as applicable, from to its qualified status under the IRS that it Code or is so qualified, (B) entitled to rely upon a favorable opinion letter issued by the trust maintained thereunder IRS. No such determination letter or opinion letter has been determined to be exempt from taxation under Section 501(a) of the Code and (C) revoked, and, to the Company’s knowledge, nothing no Governmental Body has threatened to revoke any such determination or opinion letter. Each such Employee Plan has timely adopted all currently effective amendments to the Code, and, to the knowledge of the Company, there are no existing circumstances or any events that have occurred since the date of such letter that could would reasonably be expected to cause affect the loss of such qualified status of any such Company Employee Plan;.
(3d) there Each Employee Plan has at all times been established, operated and funded in compliance, in all material respects, with its terms and all applicable Legal Requirements, including ERISA and the Code.
(e) There are no pending or, to the Company’s knowledge, threatened claims (other than routine claims for benefits) or Legal Proceedings, and, to the knowledge of the Company, no set of circumstances exists that would reasonably be expected to give rise to a claim or Legal Proceeding, against the Employee Plans, any fiduciaries or any service provider thereof or the assets of any related trusts. No Employee Plan is no Action (including any investigationunder audit or, audit or other administrative proceeding) to the Company’s knowledge, the subject of an investigation by the IRS, the U.S. Department of Labor, the Pension Benefit Guaranty Corporation, the IRS SEC or any other Governmental Entity Body, nor is any such audit or by any plan participant or beneficiary pendinginvestigation pending against the Company or, or to the knowledge of the Company, threatened, relating to . Neither the Company PlansCompany, any fiduciaries thereof to which the Company could have an indemnification obligation with respect to their duties to the Company Plans or the assets of any of the trusts under any of the Company Plans (other than routine claims for benefits) Employee Plan, nor, to the knowledge of the Company’s knowledge, are there facts any Company Associate is or circumstances that exist that could would reasonably be expect expected to give rise to any such Actions;
(4) no Company Plan is or, within the preceding six years, has been be subject to Title IV of ERISA or subject either a material liability pursuant to Section 412 of the Code and neither the Company nor any Person that is a member of a “controlled group of corporations” with, or is under “common control” with, or is a member of the same “affiliated service group” with the Company, in each case, as defined in Sections 414(b), (c), (m) or (o) of the Code, maintains or contributes to (or has in the past six years maintained or contributed to) a multiemployer plan as defined in Section 3(37) 502 of ERISA or a Title IV Plan;material Tax imposed pursuant to Section 4975 or 4976 of the Code.
(5f) the Company and its Subsidiaries are not subject to any material liability, including additional contributions, fine, penalties or loss of Tax Deductions as a result of the administration or operation of any Company Each Employee Plan that is a “group health plan” (as such term is defined in Section 5000(b)(1) of the Code);
(6) no Company Plan provides welfare benefits, including death or medical benefits (whether or not insured) beyond retirement or termination of service, other than coverage mandated solely by applicable Law;
(7) none of the Company Plans provides for payment of an amount or provision of a benefit, the increase of a payment or benefit, the payment of a contingent amount or provision of a contingent benefit, or the acceleration of the payment, funding or vesting of an amount or benefit determined or occasioned, in whole or in part, by reason of the execution of this Agreement or the consummation of the transactions contemplated hereby whether alone or together with any other event; and
(8) no amounts payable under the Company Plans will fail to be deductible for federal income tax purposes by virtue of Section 280G of the Code as a result of the occurrence of the transactions contemplated by this Agreement, either alone or in combination with another event.
(c) The Company and its Subsidiaries have not entered into any employment or employment-related agreements (including change in control agreements and offer letters) to which a named individual is a party, other than those set forth on Section 3.13(a) of the Company Disclosure Letter.
(d) Each Company Plan that is part a “nonqualified deferred compensation plan” within the meaning of subject to Section 409A of the Code complies both in form and related Treasury Department guidance has (i) been operated between January 1, 2005 and December 31, 2008, in good faith compliance with Section 409A of the Code and Notice 2005-01 and (ii) since January 1, 2009 (or such later date permitted under applicable guidance), been operated in compliance, and is in documentary compliance, in all material respects, operation with the requirements of Section 409A of the CodeCode in all material respects.
(eg) All contributions, premiums, and payments required to be made or paid with respect to any Employee Plan by applicable Legal Requirements have been timely made or paid in full or, to the extent not required to be made or paid on or before the date hereof, have been fully reflected on the financial statements of the Company in accordance with GAAP.
(h) Neither the Company Company, any ERISA Affiliate nor any Subsidiary Employee Plan has a binding commitment any current or future obligation to create provide post-employment health or welfare benefits to or to make any additional material Company Planpayment in lieu thereof to, or with respect to, any planCompany Associate or other service provider of the Company (or any of their eligible dependents or beneficiaries), agreement other than (i) required under Section 601 et seq. of ERISA or arrangement that would be a material Company Plan if adopted, 4980B of the Code (or to modify any other similar state or terminate local Legal Requirement) and (ii) where the full cost of which is borne by the recipient (or any existing material Company Plan, except as required by applicable Lawof their eligible dependents or beneficiaries).
(fi) The ESOP is Except as provided in Section 1.8, the consummation of the Transactions (whether alone or upon the occurrence or existence of any addition or subsequent event) will not (i) entitle any Company Associate or other service provider of the Company to severance pay, unemployment compensation or any other material payment under any Employee Plan or otherwise by the Company, (ii) accelerate the time of payment or vesting, or increase the amount of, compensation or benefits due to any Company Associate or other service provider of the Company under any Employee Plan or otherwise by the Company, (iii) directly or indirectly cause the Company to transfer or set aside any material assets to fund any payments or benefits under any Employee Plan, (iv) result in any limitation on the right of the Company to amend, merge, terminate or receive a reversion of assets from any Employee Plan or related trust, or (v) result in the payment of an “employee stock ownership planexcess parachute payment” within the meaning of Section 4975(e)(7) of the Code. Neither the Company nor the ESOP has, within the three year period immediately preceding the date of this Agreement, received any inquiry or notice from the IRS or any other governmental agency the effect of which is to question the qualification or status of the ESOP or any transaction entered into by the ESOP or the Company (with respect to the ESOP). The ESOP and the Company have filed all reports, returns or other documents in respect of the ESOP which are required to be filed pursuant to the applicable provisions of the Code and ERISA and the regulations thereunder. All loans entered into by the ESOP (the “ESOP Loans”) constitute “exempt loans” under Treasury Regulation Section 54.4975-7(b)(1)(iii). The securities held by the ESOP constitute “employer securities” under ERISA Section 407(d)(1) and Section 409(l) of the Code and “qualifying employer securities” under ERISA Section 407(d)(5) and Section 4975(e)(8) 280G of the Code.
(j) The Company is not a party to, and is not otherwise obligated under, any Contract or Employee Plan that provides for the gross-up or reimbursement of Taxes under Section 4999 or 409A of the Code (or any corresponding provisions of state or local Legal Requirement), or otherwise.
(k) No Employee Plan is subject to the Legal Requirements of a jurisdiction other than the United States (whether or not United States Legal Requirements also apply) or covers Company Associates or other service providers of the Company working primarily outside the United States.
Appears in 1 contract
Benefit Plans. (a) Section 3.13(a) of the Company Disclosure Letter contains a true and complete list of each material Company Plan. For purposes of this Agreement, “Company Plan” means each “Each employee benefit plan” (plan within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974ERISA and any other bonus, as amended (“ERISA”))incentive, stock purchaseequity, stock optiondeferred compensation, severancemedical, employmentlife insurance, change-in-controldisability, accident, fringe benefit, bonusloan, incentiveseverance, deferred compensation, employee loan employment or other employee benefit plan, agreement, program, policy arrangement maintained by the Company and/or any of its Subsidiaries or other arrangement, whether to which the Company or not subject any such Subsidiary contributes (or has any obligation to ERISA (including any funding mechanism therefor now in effect or required in the future as a result of the transactions contemplated by this Agreement or otherwisecontribute), whether written is a party or unwritten, in each case (i) maintained with respect to which any potential liability may be borne by the Company or any of its Subsidiaries for current (collectively, the “Benefit Plans”) is listed on Schedule 4.18 of the Disclosure Schedule. No Benefit Plan is an “employee pension benefit plan” within the meaning of ERISA. In the past six years, none of the Company, any of its Subsidiaries, or former directors, employees or consultants any ERISA Affiliate of the Company or (ii) under which (A) of any employeesuch Subsidiary, director has maintained, contributed to or consultant or former employee, director or consultant of the Company or had any of its Subsidiaries has any present or future right to benefits and (B) the Company or any of its Subsidiaries has had or has any present or future liability or obligation to contribute. With with respect to each material Company Plan, the Company has furnished or made available to Parent a current, accurate and complete copy thereof, including any amendments, and, to the extent applicable: (i) any related trust agreement or other funding instrumenta plan subject to Title IV of ERISA, (ii) the most recent determination, opinion or advisory letter any “multiemployer plan” (as defined in Section 4001(a)(3) of the Internal Revenue Service (the “IRS”ERISA), if applicable, or (iii) any summary single plan description or other material written communications maintained by the Company or its Subsidiaries to their employees concerning the extent of the benefits provided under a Company Plan and (iv) the most recent (A) Form 5500 and attached schedules, (B) audited financial statements, and (C) actuarial valuation reports.
(b) Except as disclosed in Section 3.13(b) of the Company Disclosure Letter and except as, individually or in the aggregate, has not had, and would not reasonably be expected to have, a Material Adverse Effect on the Company, with respect to the Company Plans:
(1) each Company more than one employer. Each Benefit Plan has been established operated in compliance with applicable Law and has been administered and operated in accordance with its terms and in compliance with terms. There are no actions, suits, claims or disputes pending, or, to the applicable provisions Knowledge of ERISASellers, the Code and all other applicable Lawsthreatened, and in the six years preceding the date hereof no reportable event, as defined in Section 4043 of ERISA, no prohibited transaction, as described in Section 406 of ERISA anticipated or Section 4975 of the Code, expected to be asserted against or failure to satisfy the minimum funding standards, within the meaning of Section 302 of ERISA and 412 of the Code, has occurred with respect to any Company Plan, and all contributions required to be made under the terms of any Company Benefit Plan have been timely made;
(2) each Company Plan intended to be qualified under Section 401(a) of the Code (A) has received a favorable determination, advisory and/or opinion letter, as applicable, from the IRS that it is so qualified, (B) the trust maintained thereunder has been determined to be exempt from taxation under Section 501(a) of the Code and (C) to the Company’s knowledge, nothing has occurred since the date of such letter that could reasonably be expected to cause the loss of such qualified status of such Company Plan;
(3) there is no Action (including any investigation, audit or other administrative proceeding) by the Department of Labor, the Pension Benefit Guaranty Corporation, the IRS or any other Governmental Entity or by any plan participant or beneficiary pending, or to the knowledge of the Company, threatened, relating to the Company Plans, any fiduciaries thereof to which the Company could have an indemnification obligation with respect to their duties to the Company Plans or the assets of any of the trusts under any of the Company Plans such plan (other than routine claims for benefits) norbenefits and appeals of denied routine claims). True and complete copies of all Benefit Plans and, to the knowledge of the Company, are there facts or circumstances that exist that could reasonably be expect to give rise if applicable with respect to any such Actions;
Benefit Plans, any trust instruments or other funding arrangements, insurance contracts, most recent determination or opinion letters, summary plan descriptions, Forms 5500 for the three (43) no Company Plan is or, within the preceding six years, has been subject to Title IV of ERISA or subject to Section 412 of the Code most recent plan years and neither the Company nor any Person that is a member of a “controlled group of corporations” with, or is under “common control” with, or is a member of the same “affiliated service group” with the Company, in each case, as defined in Sections 414(b), (c), (m) or (o) of the Code, maintains or contributes to (or has in the past six years maintained or contributed to) a multiemployer plan as defined in Section 3(37) of ERISA or a Title IV Plan;
(5) the Company and its Subsidiaries are not subject to any material liability, including additional contributions, fine, penalties or loss of Tax Deductions as a result of the administration or operation descriptions of any Company Plan that is a “group health plan” (as such term is defined in Section 5000(b)(1) of the Code);
(6) no Company Plan provides welfare benefits, including death non-written Benefit Plans have been made available to Purchaser or medical benefits (whether or not insured) beyond retirement or termination of service, other than coverage mandated solely by applicable Law;
(7) none of the Company Plans provides for payment of an amount or provision of a benefit, the increase of a payment or benefit, the payment of a contingent amount or provision of a contingent benefit, or the acceleration of the payment, funding or vesting of an amount or benefit determined or occasioned, in whole or in part, by reason of the execution of this Agreement or the its counsel. The consummation of the transactions contemplated hereby whether alone or together with any other event; and
(8) no amounts payable under the Company Plans Contemplated Transactions will fail to be deductible for federal income tax purposes by virtue of Section 280G of the Code as a result of the occurrence of the transactions contemplated by this Agreementnot, either alone or in combination with another any other event.
(c) The Company and its Subsidiaries have not entered into , result in any employment compensation becoming due, increase the amount of compensation or employment-related agreements (including change in control agreements and offer letters) benefits due, or accelerate the time of payment or vesting of any compensation or benefits, to which a named individual is a partyany current or former employee, other than those set forth on Section 3.13(a) manager or director of the Company, any Subsidiary of the Company, or any ERISA Affiliate of the Company Disclosure Letter.
(d) Each Company Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A of the Code and related Treasury Department guidance has (i) been operated between January 1, 2005 and December 31, 2008, in good faith compliance with Section 409A of the Code and Notice 2005-01 and (ii) since January 1, 2009 (or such later date permitted under applicable guidance), been operated in compliance, and is in documentary compliance, in all material respects, with the requirements of Section 409A of the Code.
(e) Neither the Company nor any Subsidiary has a binding commitment to create any additional material Company Plan, or any plan, agreement or arrangement that would be a material Company Plan if adopted, or to modify or terminate any existing material Company Plan, except as required by applicable Lawsuch Subsidiary.
(f) The ESOP is an “employee stock ownership plan” within the meaning of Section 4975(e)(7) of the Code. Neither the Company nor the ESOP has, within the three year period immediately preceding the date of this Agreement, received any inquiry or notice from the IRS or any other governmental agency the effect of which is to question the qualification or status of the ESOP or any transaction entered into by the ESOP or the Company (with respect to the ESOP). The ESOP and the Company have filed all reports, returns or other documents in respect of the ESOP which are required to be filed pursuant to the applicable provisions of the Code and ERISA and the regulations thereunder. All loans entered into by the ESOP (the “ESOP Loans”) constitute “exempt loans” under Treasury Regulation Section 54.4975-7(b)(1)(iii). The securities held by the ESOP constitute “employer securities” under ERISA Section 407(d)(1) and Section 409(l) of the Code and “qualifying employer securities” under ERISA Section 407(d)(5) and Section 4975(e)(8) of the Code.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Fortune Brands Home & Security, Inc.)
Benefit Plans. (a) Section 3.13(a) of the The Company Disclosure Letter contains has provided to Parent a true and complete list of each material Company Plan. For purposes of this Agreement, “Company Plan” means each “employee benefit plan” (within the meaning of Section section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”, whether or not subject to ERISA)), “multiemployer plan” (within the meaning of ERISA section 3(37)), and all other material stock purchase, stock optionoption or other equity-based, severance, employment, individual consulting, change-in-control, fringe benefit, bonus, incentive, deferred compensationcompensation and all other material employee benefit plans, employee loan agreements, programs, policies or other employee benefit plan, agreement, program, policy or other arrangementarrangements, whether or not subject to ERISA (including any funding mechanism therefor now in effect or required in the future as a result of the transactions contemplated by this Agreement or otherwise), whether written formal or unwritteninformal, in each case (i) maintained by the Company written, legally binding or any of its Subsidiaries for current or former directorsnot, employees or consultants of the Company or (ii) under which (A) any employee, director or consultant current or former employee, director or consultant individual independent contractor of the Company or any of its Subsidiaries has any present or future right to benefits and (B) or the Company or any of its Subsidiaries has had or has any present or future liability or obligation liability. All such plans, agreements, programs, policies and arrangements shall be collectively referred to contribute. as the “Company Plans.” With respect to each material Company Plan, the Company has furnished or made available to Parent a current, accurate and complete copy thereof, including any amendments, thereof and, to the extent applicable: (i) any related trust agreement or other funding instrument, (ii) the most recent determination, opinion or advisory determination letter of the Internal Revenue Service (the “IRS”), if applicable, (iii) any summary plan description or and other material equivalent written communications by the Company or its Subsidiaries to their employees concerning the extent of the benefits provided under a Company Plan and (iv) if applicable, for the two most recent years (A) the Form 5500 and attached schedules, (B) audited financial statements, and (C) actuarial valuation reportsreports and (D) attorney’s response to an auditor’s request for information. Except as set forth on Section 3.10(a) of the Company Disclosure Letter, each Company Plan is either exempt from or has been established, documented, maintained and operated in all material respects in compliance with Section 409A of the Code and the applicable guidance issued thereunder.
(b) None of the Company, its Subsidiaries or any other entity that is, or at any relevant time was, required to be treated as a single employer with the Company under Section 4001(b)(1) of ERISA or Sections 414(b), (c), (m) or (o) of the Code maintains, contributes to, or has any liability, whether contingent or otherwise, with respect to, and has not within the preceding six (6) years maintained, contributed to or had any liability, whether contingent or otherwise, with respect to any employee benefit plan (as defined in Section 3(3) of ERISA) that is or has been (i) subject to Title IV of ERISA or Section 412 of the Code or subject to Section 4063 or 4064 of ERISA, or (ii) a “multiemployer plan” (within the meaning of ERISA section 3(37).
(c) No Company Plan provides welfare benefits or coverage beyond termination of employment except to the extent required under Part 6 of Subtitle B of Title I of ERISA or any similar state law.
(d) Except as disclosed in set forth on Section 3.13(b3.10(d) of the Company Disclosure Letter and Letter, none of the Company Plans provides for payment of a benefit, the increase of a benefit amount, the payment of a contingent benefit or the acceleration of the payment or vesting of a benefit determined or occasioned, directly or in combination with any subsequent event, by reason of the execution of this Agreement or the consummation of the transactions contemplated hereby. The consummation of the transactions contemplated by this Agreement will not, alone or when considered in conjunction with any other event, result in the payment of any “excess parachute payment” as that term is defined in Section 280G of the Code.
(e) With respect to the Company Plans, except asto the extent that the inaccuracy of any of the representations set forth in this Section 3.10(e) would not, individually or in the aggregate, has not had, and would not reasonably be expected to have, have a Company Material Adverse Effect on the Company, with respect to the Company PlansEffect:
(1i) each Company Plan subject to ERISA has been established and administered in accordance with its terms and in compliance with the applicable provisions of ERISA, ERISA and the Code and all other applicable LawsCode, and in the six years preceding the date hereof no reportable event, as defined in Section 4043 of ERISA, no prohibited transaction, as described in Section 406 of ERISA or Section 4975 of the Code, or failure to satisfy the minimum funding standards, within the meaning of Section 302 of ERISA and 412 of the Code, Code has occurred with respect to any Company Plan, and all contributions required to be made under the terms of any Company Plan have been timely made;
(2ii) each Company Plan intended to be qualified under Section 401(a) of the Code (A) has received a favorable determination, advisory and/or or opinion letter, as applicable, from the IRS that it is so qualified, qualified (B) or the trust maintained thereunder deadline for obtaining such a letter has been determined to be exempt from taxation under Section 501(a) not expired as of the Code date of this Agreement) and (C) to the Company’s knowledge, nothing has occurred since the date of such letter that could would reasonably be expected to cause the loss of such qualified status of such Company Plan;
(3iii) there is no Action (including any investigation, audit or other administrative proceeding) by the Department of Labor, the Pension Benefit Guaranty CorporationCorporation (the “PBGC”), the IRS or any other Governmental Entity or by any plan participant or beneficiary pending, or to the knowledge of the Company, threatened, relating to the Company Plans, any fiduciaries thereof to which the Company could have an indemnification obligation with respect to their duties to the Company Plans or the assets of any of the trusts under any of the Company Plans (other than routine claims for benefits) nor, to the knowledge of the Company, nor are there facts or circumstances that exist that could would reasonably be expect expected to give rise to any such Actions;; and
(4) no Company Plan is or, within the preceding six years, has been subject to Title IV of ERISA or subject to Section 412 of the Code and neither the Company nor any Person that is a member of a “controlled group of corporations” with, or is under “common control” with, or is a member of the same “affiliated service group” with the Company, in each case, as defined in Sections 414(b), (c), (m) or (o) of the Code, maintains or contributes to (or has in the past six years maintained or contributed to) a multiemployer plan as defined in Section 3(37) of ERISA or a Title IV Plan;
(5iv) the Company and its Subsidiaries are do not subject to any material liability, including additional contributions, fine, penalties or loss of Tax Deductions as a result of the administration or operation of maintain any Company Plan that is a “group health plan” (as such term is defined in Section 5000(b)(1) of the Code);
(6) no that has not been administered and operated in all respects in compliance with the applicable requirements of Section 601 of ERISA and Section 4980B(b) of the Code, and the Company Plan provides welfare benefitsand its Subsidiaries are not subject to any material liability, including death additional contributions, fines, penalties or medical benefits (whether or not insured) beyond retirement or termination loss of service, other than coverage mandated solely by applicable Law;
(7) none of the Company Plans provides for payment of an amount or provision of a benefit, the increase of a payment or benefit, the payment of a contingent amount or provision of a contingent benefit, or the acceleration of the payment, funding or vesting of an amount or benefit determined or occasioned, in whole or in part, by reason of the execution of this Agreement or the consummation of the transactions contemplated hereby whether alone or together with any other event; and
(8) no amounts payable under the Company Plans will fail to be deductible for federal income tax purposes by virtue of Section 280G of the Code deduction as a result of the occurrence of the transactions contemplated by this Agreement, either alone or in combination with another eventsuch administration and operation.
(c) The Company and its Subsidiaries have not entered into any employment or employment-related agreements (including change in control agreements and offer letters) to which a named individual is a party, other than those set forth on Section 3.13(a) of the Company Disclosure Letter.
(d) Each Company Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A of the Code and related Treasury Department guidance has (i) been operated between January 1, 2005 and December 31, 2008, in good faith compliance with Section 409A of the Code and Notice 2005-01 and (ii) since January 1, 2009 (or such later date permitted under applicable guidance), been operated in compliance, and is in documentary compliance, in all material respects, with the requirements of Section 409A of the Code.
(e) Neither the Company nor any Subsidiary has a binding commitment to create any additional material Company Plan, or any plan, agreement or arrangement that would be a material Company Plan if adopted, or to modify or terminate any existing material Company Plan, except as required by applicable Law.
(f) The ESOP is an “employee stock ownership plan” within the meaning of Section 4975(e)(7) of the Code. Neither the Company nor the ESOP has, within the three year period immediately preceding the date of this Agreement, received any inquiry or notice from the IRS or any other governmental agency the effect of which is to question the qualification or status of the ESOP or any transaction entered into by the ESOP or the Company (with respect to the ESOP). The ESOP and the Company have filed all reports, returns or other documents in respect of the ESOP which are required to be filed pursuant to the applicable provisions of the Code and ERISA and the regulations thereunder. All loans entered into by the ESOP (the “ESOP Loans”) constitute “exempt loans” under Treasury Regulation Section 54.4975-7(b)(1)(iii). The securities held by the ESOP constitute “employer securities” under ERISA Section 407(d)(1) and Section 409(l) of the Code and “qualifying employer securities” under ERISA Section 407(d)(5) and Section 4975(e)(8) of the Code.
Appears in 1 contract
Sources: Merger Agreement (TNS Inc)
Benefit Plans. (a) Section 3.13(aNeither Seller nor any member of a group of trades or businesses under common control ("ERISA Affiliate") of the Company Disclosure Letter contains a true and complete list of each material Company Plan. For purposes of this Agreement, “Company Plan” means each “employee benefit plan” (within the meaning of Section 3(3as defined in Sections 4001(a)(14) or 4001(b)(1) of the Employee Retirement Income Security Act of 1974, as amended (“"ERISA”"))) with Seller have at any time sponsored, stock purchasecontributed to, stock option, severance, employment, change-in-control, fringe benefit, bonus, incentive, deferred compensation, employee loan or other employee been obligated under Title I or IV of ERISA to contribute to a "defined benefit plan, agreement, program, policy or other arrangement, whether or not subject to ERISA (including any funding mechanism therefor now in effect or required in the future as a result of the transactions contemplated by this Agreement or otherwise), whether written or unwritten, in each case (i) maintained by the Company or any of its Subsidiaries for current or former directors, employees or consultants of the Company or (ii) under which (A) any employee, director or consultant or former employee, director or consultant of the Company or any of its Subsidiaries has any present or future right to benefits and (B) the Company or any of its Subsidiaries has had or has any present or future liability or obligation to contribute. With respect to each material Company Plan, the Company has furnished or made available to Parent a current, accurate and complete copy thereof, including any amendments, and, to the extent applicable: (i) any related trust agreement or other funding instrument, (ii) the most recent determination, opinion or advisory letter of the Internal Revenue Service (the “IRS”), if applicable, (iii) any summary plan description or other material written communications by the Company or its Subsidiaries to their employees concerning the extent of the benefits provided under a Company Plan and (iv) the most recent (A) Form 5500 and attached schedules, (B) audited financial statements, and (C) actuarial valuation reports.
(b) Except as disclosed in Section 3.13(b) of the Company Disclosure Letter and except as, individually or in the aggregate, has not had, and would not reasonably be expected to have, a Material Adverse Effect on the Company, with respect to the Company Plans:
(1) each Company Plan has been established and administered in accordance with its terms and in compliance with the applicable provisions of ERISA, the Code and all other applicable Laws, and in the six years preceding the date hereof no reportable event, " as defined in ERISA Section 4043 of ERISA3(35) other than The News Printing Company, no prohibited transaction, as described in Section 406 of ERISA or Section 4975 of Inc. Retirement Plan (the Code"Pension Plan"), or failure to satisfy the minimum funding standards, within the meaning of Section 302 of ERISA and 412 of the Code, has occurred with respect to any Company Plan"multiemployer plan" as defined in ERISA Section 3(37). Neither Seller nor any ERISA Affiliate of Seller has at any time sponsored, and all contributions required contributed to, or been obligated to be made under the terms of contribute to any Company Employee Benefit Plan have which is or has been timely made;
(2) each Company Plan intended to be qualified under Section 401(a) of the Internal Revenue Code other than the Pension Plan.
(Ab) Schedule 3.17 lists every Employee Benefit Plan that affects or is available to employees performing duties in connection with the Business.
(c) Seller has received a favorable determinationdelivered to Purchaser (i) copies of the Pension Plan including any amendments, advisory and/or opinion letter, as applicable, from the IRS that it is so qualified, (B) and the trust maintained thereunder has been determined to be exempt from taxation under Section 501(athereto; (ii) of all determination letters, rulings, opinion letters, information letters or advisory opinions issued by the Code and (C) to the Company’s knowledgeIRS, nothing has occurred since the date of such letter that could reasonably be expected to cause the loss of such qualified status of such Company Plan;
(3) there is no Action (including any investigation, audit or other administrative proceeding) by the Department of Labor, Labor or the Pension Benefit Guaranty CorporationCorporation after December 31, 1988; (iii) annual reports or returns, audited or unaudited financial statements, actuarial valuations and reports, and summary annual reports prepared for the IRS or any other Governmental Entity or by any plan participant or beneficiary pending, or to the knowledge of the Company, threatened, relating to the Company Plans, any fiduciaries thereof to which the Company could have an indemnification obligation Pension Plan with respect to their duties the most recent three plan years; (iv) the most recent summary plan description and any material modifications thereto; and (v) such other information and documents as Purchaser has requested.
(d) The Pension Plan has been maintained in compliance with the applicable terms of ERISA, the Code and any other applicable Law. The Pension Plan has been administered in accordance with its written terms except to the Company Plans extent inconsistent with applicable Law. No oral or written representation or communication with respect to any aspect of the Pension Plan has been made to employees of the Seller prior to the Closing which is not in accordance with the written or otherwise preexisting terms and provisions of such Pension Plan. There are no unresolved claims or disputes under the terms of, or in connection with, the Pension Plan other than claims for benefits which are payable in the ordinary course of business, and no action, proceeding, prosecution, inquiry, hearing or investigation has been commenced with respect to the Pension Plan. The Pension Plan has received a determination letter from the IRS with respect to currently applicable tax laws, and the Seller is not aware of any circumstances which could result in revocation of any such favorable determination letter.
(e) Based on the actuarial report dated January 1, 1998, the Pension Plan did not have, and to the Knowledge of Seller, the Shareholder or ▇▇▇▇ ▇▇▇▇▇▇, the Pension Plan does not have, any "unfunded current liability," as that term is defined in Section 302(d)(8)(A) of ERISA, and the fair market value of the assets of any such plan exceeds the plan's "benefit liabilities," as that term is defined in Section 4001(a)(16) of ERISA, when determined under actuarial factors that would apply if the plan terminated in accordance with all applicable legal requirements. Since the date of the trusts under any most recent actuarial valuation, there has been (i) no material change in the financial position of the Company Plans Pension Plan, (other than routine claims for benefitsii) nor, no change in the actuarial assumptions with respect to the knowledge of the CompanyPension Plan, are there facts or circumstances that exist that could reasonably be expect to give rise to any such Actions;
and (4iii) no Company increase in benefits under the Pension Plan is or, as a result of plan amendments or changes in applicable Law. The Pension Plan does not have an "accumulated funding deficiency" within the preceding six years, has been subject to Title IV meaning of ERISA or subject to Section 412 of the Code and neither or Section 302 of ERISA. The Seller has not provided, nor is it required to provide, security to the Company nor any Person that is a member of a “controlled group of corporations” with, or is under “common control” with, or is a member of the same “affiliated service group” with the Company, in each case, as defined in Sections 414(b), (c), (mPension Plan pursuant to Section 401(a)(29) or (o) of the Code, maintains or contributes to (or has in the past six years maintained or contributed to) a multiemployer plan as defined in Section 3(37) of ERISA or a Title IV Plan;
(5) the Company and its Subsidiaries are not subject to any material liability, including additional contributions, fine, penalties or loss of Tax Deductions as a result of the administration or operation of any Company Plan that is a “group health plan” (as such term is defined in Section 5000(b)(1) of the Code);
(6) no Company Plan provides welfare benefits, including death or medical benefits (whether or not insured) beyond retirement or termination of service, other than coverage mandated solely by applicable Law;
(7) none of the Company Plans provides for payment of an amount or provision of a benefit, the increase of a payment or benefit, the payment of a contingent amount or provision of a contingent benefit, or the acceleration of the payment, funding or vesting of an amount or benefit determined or occasioned, in whole or in part, by reason of the execution of this Agreement or the consummation of the transactions contemplated hereby whether alone or together with any other event; and
(8) no amounts payable under the Company Plans will fail to be deductible for federal income tax purposes by virtue of Section 280G of the Code as a result of the occurrence of the transactions contemplated by this Agreement, either alone or in combination with another event.
(c) The Company and its Subsidiaries have not entered into any employment or employment-related agreements (including change in control agreements and offer letters) to which a named individual is a party, other than those set forth on Section 3.13(a) of the Company Disclosure Letter.
(d) Each Company Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A of the Code and related Treasury Department guidance has (i) been operated between January 1, 2005 and December 31, 2008, in good faith compliance with Section 409A of the Code and Notice 2005-01 and (ii) since January 1, 2009 (or such later date permitted under applicable guidance), been operated in compliance, and is in documentary compliance, in all material respects, with the requirements of Section 409A of the Code.
(e) Neither the Company nor any Subsidiary has a binding commitment to create any additional material Company Plan, or any plan, agreement or arrangement that would be a material Company Plan if adopted, or to modify or terminate any existing material Company Plan, except as required by applicable Law.
(f) The ESOP Within the six-year period preceding the Closing, no Liability under Subtitle C or D of Title IV of ERISA has been or is an “employee stock ownership plan” expected to be incurred by the Seller with respect to the Pension Plan. No notice of a "reportable event," within the meaning of Section 4975(e)(74043 of ERISA for which the 30-day requirement has not been waived, has been required to be filed for the Pension Plan.
(g) There are no restrictions on the rights of the Code. Neither Seller to amend or terminate the Company nor the ESOP has, within the three year period immediately preceding the date of this Agreement, received Pension Plan without incurring any inquiry Liability thereunder.
(h) All contributions or notice from the IRS premium payments due or any other governmental agency the effect of which is to question the qualification or status of the ESOP or any transaction entered into by the ESOP or the Company (accrued with respect to the ESOP). The ESOP and Pension Plan through the Company Closing have filed been paid by the Seller to or on behalf of each such plan.
(i) All Employee Benefit Plans have been maintained in compliance with all reports, returns or other documents applicable Laws in respect accordance with the terms of the ESOP which are required to be filed pursuant to the applicable provisions of the Code and ERISA and the regulations thereundergoverning Employee Benefit Plan documents. All loans entered into by Employee Benefit Plans have been administered in compliance with requirements necessary to secure the ESOP (the “ESOP Loans”) constitute “exempt loans” under Treasury Regulation Section 54.4975-7(b)(1)(iii). The securities held by the ESOP constitute “employer securities” under ERISA Section 407(d)(1) and Section 409(l) intended tax consequences of the Code and “qualifying employer securities” under ERISA Section 407(d)(5) and Section 4975(e)(8) of the Codesuch Plans.
Appears in 1 contract
Sources: Asset Purchase Agreement (Gray Communications Systems Inc /Ga/)
Benefit Plans. Notwithstanding anything to the contrary in this Agreement (including any other representations and warranties contained in this Agreement), the representations and warranties contained in this Section 4.16 constitute the sole and exclusive representations and warranties of the Company relating to Benefit Plans and matters related thereto.
(a) Each material Benefit Plan that is sponsored or maintained by the Asset Seller on behalf of any Employee, and that is not an offer letter, employment agreement, consulting agreement or similar agreement and that is not a benefit plan, arrangement or obligation that a Person is required by Law to maintain, is listed on Section 3.13(a4.16(a) of the Company Disclosure Letter contains a true and complete list of each material Company Plan. For purposes of this Agreement(such plans, collectively, the “Company Plan” means each “employee benefit plan” (within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISASellers’ Benefit Plans”)), stock purchase, stock option, severance, employment, change-in-control, fringe benefit, bonus, incentive, deferred compensation, employee loan or other employee benefit plan, agreement, program, policy or other arrangement, whether or not subject to ERISA (including any funding mechanism therefor now in effect or required in the future as a result of the transactions contemplated by this Agreement or otherwise), whether written or unwritten, in each case (i) maintained by the Company or any of its Subsidiaries for current or former directors, employees or consultants of the Company or (ii) under which (A) any employee, director or consultant or former employee, director or consultant of the Company or any of its Subsidiaries has any present or future right to benefits and (B) the Company or any of its Subsidiaries has had or has any present or future liability or obligation to contribute. With respect to each material Company Planof the Sellers’ Benefit Plans, the Company has furnished or made available to Parent a current, accurate the Buyer true and complete copy thereofcopies, including any amendmentsas applicable, and, to the extent applicable: of (i) the plan document (including all amendments thereto) (or, with respect to any related trust agreement or other funding instrumentsuch unwritten plan, a summary of the material terms of such plan), (ii) the most recent determination, opinion or advisory letter of the Internal Revenue Service (the “IRS”), if applicable, (iii) any summary plan description or other material written communications by the Company or its Subsidiaries to their employees concerning the extent of the benefits provided under a Company Plan and (iv) the most recent (A) Form 5500 and attached schedules, (B) audited financial statements, and (C) actuarial valuation reports.
(b) Except as disclosed in Section 3.13(b) of the Company Disclosure Letter and except as, individually or in the aggregate, has not had, and would not reasonably be expected to have, a Material Adverse Effect on the Company, with respect to the Company Plans:
(1) each Company Sellers’ Benefit Plan has been established and administered in accordance with its terms and in compliance with the applicable provisions of ERISA, the Code and all other applicable Laws, and in the six years preceding the date hereof no reportable event, as defined in Section 4043 of ERISA, no prohibited transaction, as described in Section 406 of ERISA or Section 4975 of the Code, or failure to satisfy the minimum funding standards, within the meaning of Section 302 of ERISA and 412 of the Code, has occurred with respect to any Company Plan, and all contributions required to be made under the terms of any Company Plan have been timely made;
(2) each Company Plan which is intended to be qualified under Section 401(a) of the Code, the most recent IRS determination letter, and (iii) where applicable with respect to Assumed Plans, copies of any trust agreements or other funding arrangements, custodial agreements, insurance policies and contracts, administration agreements and similar agreements, investment management or investment advisory agreements, summary plan descriptions, summaries of material modifications, summaries of benefits and coverage, COBRA communications, portions of employee handbooks and any other written communications (or a description of any oral communications) relating to any such Benefit Plan, and copies of material notices, letters or other correspondence from the Internal Revenue Service, Department of Labor, Department of Health and Human Services, Pension Benefit Guaranty Corporation or other Governmental Body relating to the Benefit Plan with respect to the three (3) year period immediately preceding the Closing Date.
(b) Each Assumed Plan and any related trust (other than any multiemployer plan within the meaning of Section 3(37) of ERISA (each a “Multiemployer Plan”)) has been established, administered and maintained, in all material respects, in accordance with its terms and in compliance with all applicable Laws (including ERISA, the Code and any applicable local Laws). Each Assumed Plan that is intended to be qualified within the meaning of Section 401(a) of the Code (Aa “Qualified Benefit Plan”) has timely received a current favorable determinationdetermination letter, advisory and/or opinion letter, as applicable, or opinion letter from the IRS that it such plan is so qualified, (B) the trust maintained thereunder has been determined to be exempt from taxation qualified under Section 501(a) 401(a), and, to the Knowledge of the Code and (C) to the Company’s knowledge, nothing has occurred since the date of such letter that could reasonably be expected to cause adversely affect the loss of such qualified status of any Qualified Benefit Plan. To the Knowledge of the Company, nothing has occurred with respect to any Assumed Plan that has subjected or could reasonably be expected to subject the Company or any of its ERISA Affiliates or, with respect to any period on or after the Closing Date, Buyer or any of its Affiliates, to a penalty under Section 502 of ERISA or to tax or penalty under Sections 4975 or 4980H of the Code. No Assumed Plan (other than a Multiemployer Plan) which is subject to minimum funding requirements, including any multiple employer plan, has an “accumulated funding deficiency,” whether or not waived, or is subject to a lien for unpaid contributions under Section 303(k) of ERISA or Section 430(k) of the Code. No Assumed Plan which is a defined benefit plan has an “adjusted funding target attainment percentage,” as defined in Section 436 of the Code, less than 80%. All benefits, contributions and premiums relating to each Assumed Plan have been timely paid in accordance with the terms of such Assumed Plan and all applicable Laws and accounting principles, and all benefits accrued under any unfunded Assumed Plan have been paid, accrued or otherwise adequately reserved to the extent required by, and in accordance with, GAAP.
(c) Neither the Company Plan;
nor any of its ERISA Affiliates has in the last three (3) there is no Action years, (including i) incurred, nor reasonably expects to incur, any investigation, audit material Liability under Title IV of ERISA or other administrative proceedingrelated provisions of the Code relating to any Assumed Plan; (ii) by the Department of Labor, failed to timely pay premiums to the Pension Benefit Guaranty CorporationCorporation with respect to a Benefit Plan maintained, the IRS or any other Governmental Entity or by any plan participant or beneficiary pendingsponsored, or contributed to by the knowledge Company or its ERISA Affiliate on behalf of any Employee; (iii) withdrawn from any Multiemployer Plan to which it was required to contribute on behalf of an Employee; (iv) engaged in any transaction which would reasonably be expected to give rise to material liability under Section 4069 or Section 4212(c) of ERISA; (v) incurred taxes under Section 4971 of the CompanyCode with respect to any Assumed Plan; or (vi) participated in a multiple employer welfare arrangements (MEWA) covering any Employee.
(d) With respect to each Assumed Plan (i) no such plan is a Multiemployer Plan, threatened(ii) no such plan is a “multiple employer plan” within the meaning of Section 413(c) of the Code or a “multiple employer welfare arrangement” (as defined in Section 3(40) of ERISA); (iii) no Action has been initiated by the Pension Benefit Guaranty Corporation to terminate any such plan or to appoint a trustee for any such plan; and (iv) no “reportable event,” as defined in Section 4043 of ERISA, relating to the Company Plans, any fiduciaries thereof with respect to which the Company could have an indemnification obligation reporting requirement has not been waived, has occurred with respect to their duties any such plan within the last three (3) years.
(e) Other than as required under Sections 601 to 608 of ERISA or other applicable Law, no Assumed Plan provides post-termination or retiree health benefits to any individual for any reason.
(f) There is no pending or, to the Company Plans or the assets of any of the trusts under any of the Company Plans Company’s Knowledge, threatened Action relating to an Assumed Plan (other than routine claims for benefits) nor), and no Assumed Plan has within the three years prior to the knowledge date hereof been the subject of an examination or audit by a Governmental Body or the subject of an application or filing under, or is a participant in, an amnesty, voluntary compliance, self-correction or similar program sponsored by any Governmental Body.
(g) There has been no amendment to, announcement by the Company or any of its Affiliates relating to, or change in employee participation or coverage under, any Assumed Plan or Collective Bargaining Agreement that would increase the annual expense of maintaining such plan above the level of the Company, are there facts or circumstances that exist that could reasonably be expect to give rise expense incurred for the most recently completed fiscal year (other than on a de minimis basis) with respect to any such Actions;
(4) no Company Plan is ordirector, within the preceding six yearsofficer, has been subject to Title IV of ERISA employee, consultant or subject to Section 412 independent contractor of the Code and neither Business, as applicable. Neither the Company nor any Person that is a member of a “controlled group of corporations” withits Affiliates has any commitment or obligation or, to the Company’s Knowledge, has made any representations to any employee, consultant or is under “common control” with, or is a member independent contractor of the same “affiliated service group” with the CompanyBusiness, in each casewhether or not legally binding, as defined in Sections 414(b)to adopt, (c)amend, (m) modify or (o) of the Code, maintains terminate any Assumed Plan or contributes to (or has in the past six years maintained or contributed to) a multiemployer plan as defined in Section 3(37) of ERISA or a Title IV Plan;any Collective Bargaining Agreement.
(5h) the Company and its Subsidiaries are not subject to any material liability, including additional contributions, fine, penalties or loss of Tax Deductions as a result of the administration or operation of any Company Each Assumed Plan that is a “group health plan” (as such term is defined in subject to Section 5000(b)(1) of the Code);
(6) no Company Plan provides welfare benefits, including death or medical benefits (whether or not insured) beyond retirement or termination of service, other than coverage mandated solely by applicable Law;
(7) none of the Company Plans provides for payment of an amount or provision of a benefit, the increase of a payment or benefit, the payment of a contingent amount or provision of a contingent benefit, or the acceleration of the payment, funding or vesting of an amount or benefit determined or occasioned, in whole or in part, by reason of the execution of this Agreement or the consummation of the transactions contemplated hereby whether alone or together with any other event; and
(8) no amounts payable under the Company Plans will fail to be deductible for federal income tax purposes by virtue of Section 280G 409A of the Code as a result of has been administered in material compliance with its terms and the occurrence of the transactions contemplated by this Agreement, either alone or in combination with another event.
(c) The Company operational and its Subsidiaries have not entered into any employment or employment-related agreements (including change in control agreements and offer letters) to which a named individual is a party, other than those set forth on Section 3.13(a) of the Company Disclosure Letter.
(d) Each Company Plan that is a “nonqualified deferred compensation plan” within the meaning documentary requirements of Section 409A of the Code and related Treasury Department all applicable regulatory guidance (including, notices, rulings and proposed and final regulations) thereunder. Neither the Asset Seller nor the Company has (i) been operated between January 1any obligation to gross up, 2005 and December 31indemnify or otherwise reimburse any individual for any excise taxes, 2008, in good faith compliance with Section 409A of the Code and Notice 2005-01 and (ii) since January 1, 2009 (interest or such later date permitted under applicable guidance), been operated in compliance, and is in documentary compliance, in all material respects, with the requirements of penalties incurred pursuant to Section 409A of the Code.
(ei) Neither Except as set forth on Section 4.16(i) of the Company Disclosure Letter, neither the execution of this Agreement nor any Subsidiary has a binding commitment to create of the transactions contemplated by this Agreement will (either alone or upon the occurrence of any additional material Company Planor subsequent events): (i) entitle any current or former employee, independent contractor or consultant of the Business to severance pay or any other payment; (ii) accelerate the time of payment, funding or vesting, or increase the amount of compensation (including stock-based compensation) due to any plan, agreement such individual other than as described in Article VI or arrangement that would be a in any applicable Benefit Plan document; (iii) increase the amount payable under or result in any other material Company Plan if adopted, or obligation pursuant to modify or terminate any existing material Company Assumed Plan, except as required by applicable Law.
; (fiv) The ESOP is an “employee stock ownership plan” result in "excess parachute payments" within the meaning of Section 4975(e)(7280G(b) of the Code. Neither the Company nor the ESOP has, ; or (v) require a "gross-up" or other payment to any "disqualified individual" within the three year period immediately preceding the date meaning of this Agreement, received any inquiry or notice from the IRS or any other governmental agency the effect of which is to question the qualification or status of the ESOP or any transaction entered into by the ESOP or the Company (with respect to the ESOP). The ESOP and the Company have filed all reports, returns or other documents in respect of the ESOP which are required to be filed pursuant to the applicable provisions of the Code and ERISA and the regulations thereunder. All loans entered into by the ESOP (the “ESOP Loans”) constitute “exempt loans” under Treasury Regulation Section 54.4975-7(b)(1)(iii). The securities held by the ESOP constitute “employer securities” under ERISA Section 407(d)(1) and Section 409(l) of the Code and “qualifying employer securities” under ERISA Section 407(d)(5) and Section 4975(e)(8280G(c) of the Code.
Appears in 1 contract
Sources: Sale Agreement (Emcore Corp)
Benefit Plans. (a) Section 3.13(a3.15(a) of the Company Disclosure Letter Schedule contains a true correct and complete list of each material Benefit Plan, excluding any offer letters and employment agreements with employees or other individual service providers that (i) follow in all material respects the Company’s form(s) of offer letter and employment agreement made available to Buyer and (ii) are terminable “at will” or for convenience without provision of any notice and without the payment of severance, notice pay or other termination liabilities or obligations (other than as required by applicable Legal Requirements).
(b) The Company has made available to Buyer copies of each material Benefit Plan and, where applicable, (i) any associated trust agreements, (ii) the most recent annual report filed with any Governmental Authority and summary plan descriptions, if any, (iii) the most recently received IRS determination or opinion or advisory letter and (iv) any material non-routine correspondence with a Governmental Authority in the past year.
(c) Each Benefit Plan (and each related trust, insurance Contract or fund) is and has for the past six (6) years been established, funded, maintained and operated in compliance with the terms of such Benefit Plan, in all material respects, and applicable Legal Requirements, including, but not limited to, ERISA and the Code, in all material respects. Each Benefit Plan which is intended to qualify under Section 401(a) of the Code has received a favorable determination letter from the IRS as to its qualification or, is entitled to rely on an opinion or advisory letter issued to a prototype or volume submitter plan sponsor and, to the Company’s Knowledge, nothing has occurred that could adversely affect such qualification. There is no material pending or, to the Company’s Knowledge, threatened Action, claim or proceeding, other than routine claims for benefits, against or with respect to any Benefit Plan. For purposes The Company has not incurred (whether or not assessed) any Tax or other material liability under the Sections 4980B, 4980D or 4980H or 6721 or 6722 of the Code.
(d) No Benefit Plan provides, and the Company does not have any obligation to provide, health, life or other welfare benefits subsequent to termination of employment, ownership or service to employees or their beneficiaries or any other Person, except (i) to the extent required by applicable state insurance laws and Part 6 of Subtitle B of Title I of ERISA (and for which the covered Person pays the full cost of coverage), or (ii) through the end of the month in which a termination of employment occurs. With respect to each Benefit Plan: (A) all contributions (including all employer contributions and employee salary reduction contributions), distributions, reimbursements and premium payments that are due have been timely made in all material respects and all such amounts for any period ending on or before the Closing Date that are not yet due have been made or properly accrued in all material respects, and (B) there have been no “prohibited transactions” within the meaning of Section 4975 of the Code or Sections 406 or 407 of ERISA or breach of fiduciary duty (as determined under ▇▇▇▇▇).
(e) Except as set forth on Section 3.15(e) of the Disclosure Schedule or as otherwise contemplated by Section 2.3(b)(ii) of this Agreement, neither the execution of this Agreement nor the consummation of the transactions contemplated herein would, by itself or in combination with any other event (regardless of whether that other event has or will occur), result in (i) any payment or benefit (whether in cash, property or the vesting of property) becoming due from or under any Benefit Plan or otherwise to any current or former director, manager, officer, individual consultant or other service provider or employee of the Company, (ii) the accelerated vesting or timing of payment or funding, or any increase in the amount, or in the forfeiture, of any compensation or benefit payable or provided to or in respect of any such current or former director, manager, officer, individual consultant or employee under any Benefit Plan or otherwise, (iii) any current or former employee or individual service provider receiving any amount that, individually or in the aggregate with other amounts, could constitute an “excess parachute payment” within the meaning of Section 280G(b) of the Code.
(f) No Benefit Plan is, and the Company does not sponsor, maintain, contribute to, have any obligation to contribute to or have any current or contingent obligation or liability in respect of or relating to any: (i) Multiemployer Plan, (ii) “defined benefit plan” means each (as defined under Section 3(35) of ERISA) or any other plan that is or was subject to the provisions of Title IV of ERISA or Sections 412 or 430 of the Code, (iii) “employee benefit multiple employer plan” (within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”)), stock purchase, stock option, severance, employment, change-in-control, fringe benefit, bonus, incentive, deferred compensation, employee loan or other employee benefit plan, agreement, program, policy or other arrangement, whether or not subject to ERISA (including any funding mechanism therefor now in effect or required in the future as a result of the transactions contemplated by this Agreement or otherwise), whether written or unwritten, in each case (i) maintained by the Company or any of its Subsidiaries for current or former directors, employees or consultants of the Company or (ii) under which (A) any employee, director or consultant or former employee, director or consultant of the Company or any of its Subsidiaries has any present or future right to benefits and (B) the Company or any of its Subsidiaries has had or has any present or future liability or obligation to contribute. With respect to each material Company Plan, the Company has furnished or made available to Parent a current, accurate and complete copy thereof, including any amendments, and, to the extent applicable: (i) any related trust agreement or other funding instrument, (ii) the most recent determination, opinion or advisory letter of the Internal Revenue Service (the “IRS”), if applicable, (iii) any summary plan description or other material written communications by the Company or its Subsidiaries to their employees concerning the extent of the benefits provided under a Company Plan and (iv) the most recent (A) Form 5500 and attached schedules, (B) audited financial statements, and (C) actuarial valuation reports.
(b) Except as disclosed in Section 3.13(b) of the Company Disclosure Letter and except as, individually or in the aggregate, has not had, and would not reasonably be expected to have, a Material Adverse Effect on the Company, with respect to the Company Plans:
(1) each Company Plan has been established and administered in accordance with its terms and in compliance with the applicable provisions of ERISA, the Code and all other applicable Laws, and in the six years preceding the date hereof no reportable event, as defined in Section 4043 of ERISA, no prohibited transaction, as described in Section 406 210 of ERISA or Section 4975 of the Code, or failure to satisfy the minimum funding standards, within the meaning of Section 302 of ERISA and 412 of the Code, has occurred with respect to any Company Plan, and all contributions required to be made under the terms of any Company Plan have been timely made;
(2) each Company Plan intended to be qualified under Section 401(a) of the Code (A) has received a favorable determination, advisory and/or opinion letter, as applicable, from the IRS that it is so qualified, (B) the trust maintained thereunder has been determined to be exempt from taxation under Section 501(a) of the Code and (C) to the Company’s knowledge, nothing has occurred since the date of such letter that could reasonably be expected to cause the loss of such qualified status of such Company Plan;
(3) there is no Action (including any investigation, audit or other administrative proceeding) by the Department of Labor, the Pension Benefit Guaranty Corporation, the IRS or any other Governmental Entity or by any plan participant or beneficiary pending, or to the knowledge of the Company, threatened, relating to the Company Plans, any fiduciaries thereof to which the Company could have an indemnification obligation with respect to their duties to the Company Plans or the assets of any of the trusts under any of the Company Plans (other than routine claims for benefits) nor, to the knowledge of the Company, are there facts or circumstances that exist that could reasonably be expect to give rise to any such Actions;
(4) no Company Plan is or, within the preceding six years, has been subject to Title IV of ERISA or subject to Section 412 of the Code and neither the Company nor any Person that is a member of a “controlled group of corporations” with, or is under “common control” with, or is a member of the same “affiliated service group” with the Company, in each case, as defined in Sections 414(b), (c), (m) or (o413(c) of the Code, maintains ) or contributes to (or has in the past six years maintained or contributed toiv) a multiemployer plan as defined in Section 3(37) of ERISA or a Title IV Plan;
(5) the Company and its Subsidiaries are not subject to any material liability, including additional contributions, fine, penalties or loss of Tax Deductions as a result of the administration or operation of any Company Plan that is a “group health planmultiple employer welfare arrangement” (as such term is defined in Section 5000(b)(13(40) of ERISA). The Company does not have any current or contingent liability or obligation by reason of at any time being considered a single employer under Section 414 of the Code with any other Person.
(g) The Company does not have any current or contingent obligation to indemnify, “gross-up” or otherwise make whole any Person for the imposition of Taxes, including those under Section 4999 or 409A of the Code);
(6) no Company Plan provides welfare benefits, including death or medical benefits (whether or not insured) beyond retirement or termination of service, other than coverage mandated solely by applicable Law;
(7) none of the Company Plans provides for payment of an amount or provision of a benefit, the increase of a payment or benefit, the payment of a contingent amount or provision of a contingent benefit, or the acceleration of the payment, funding or vesting of an amount or benefit determined or occasioned, in whole or in part, by reason of the execution of this Agreement or the consummation of the transactions contemplated hereby whether alone or together with any other event; and
(8) no amounts payable under the Company Plans will fail to be deductible for federal income tax purposes by virtue of Section 280G of the Code as a result of the occurrence of the transactions contemplated by this Agreement, either alone or in combination with another event.
(c) The Company and its Subsidiaries have not entered into any employment or employment-related agreements (including change in control agreements and offer letters) to which a named individual is a party, other than those set forth on Section 3.13(a) of the Company Disclosure Letter.
(dh) Each Company Benefit Plan (or any portion thereof) that is a “nonqualified deferred compensation plan” (within the meaning of Section 409A of the Code and related Treasury Department all IRS guidance promulgated thereunder) has (i) been operated between January 1operated, 2005 maintained and December 31, 2008, administered in good faith compliance with Section 409A of the Code and Notice 2005-01 and (ii) since January 1, 2009 (or such later date permitted under applicable guidance), been operated in compliance, and is in documentary compliance, in all material respects, respects with the requirements of Section 409A of the Code.
(e) Neither the Company nor , and no amount under any Subsidiary has a binding commitment to create any additional material Company Plan, such Benefit Plan or any planportion thereof is, agreement has been or arrangement that would be a material Company Plan if adopted, or to modify or terminate any existing material Company Plan, except as required by applicable Law.
(f) The ESOP is an “employee stock ownership plan” within the meaning of Section 4975(e)(7) of the Code. Neither the Company nor the ESOP has, within the three year period immediately preceding the date of this Agreement, received any inquiry or notice from the IRS or any other governmental agency the effect of which is to question the qualification or status of the ESOP or any transaction entered into by the ESOP or the Company (with respect to the ESOP). The ESOP and the Company have filed all reports, returns or other documents in respect of the ESOP which are required expected to be filed pursuant subject to the applicable provisions of the Code and ERISA and the regulations thereunder. All loans entered into by the ESOP (the “ESOP Loans”) constitute “exempt loans” Tax under Treasury Regulation Section 54.4975-7(b)(1)(iii). The securities held by the ESOP constitute “employer securities” under ERISA Section 407(d)(1) and Section 409(l) of the Code and “qualifying employer securities” under ERISA Section 407(d)(5) and Section 4975(e)(8) 409A of the Code.
Appears in 1 contract
Benefit Plans. (a) Section 3.13(a4.12(a) of the Company Disclosure Letter contains a true and complete list of each material Company Plan. For purposes of this Agreement, “Company Plan” means each “employee benefit plan” (within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), whether or not subject to ERISA), “multiemployer plan” (within the meaning of ERISA Section 3(37)), and all stock purchase, stock option, phantom stock or other equity-based plan, severance, employment, collective bargaining, change-in-control, fringe benefit, bonus, incentive, deferred compensation, employee loan supplemental retirement, health, life, or disability insurance, dependent care and all other employee benefit planand compensation plans, agreementagreements, programprograms, policy policies or other arrangementarrangements, whether or not subject to ERISA (including any funding mechanism therefor now in effect or required in the future as a result of the transactions contemplated by this Agreement or otherwise), whether formal or informal, written or unwrittenoral, in each case (i) maintained by the Company legally binding or any of its Subsidiaries for current or former directorsnot, employees or consultants of the Company or (ii) under which (A) any employee, director or consultant current or former employee, director or consultant of the Company or its Subsidiaries (or any of its Subsidiaries their dependents) has any present or future right to compensation or benefits and (B) or the Company or any of its Subsidiaries has had Subsidiaries, sponsors or maintains, is making contributions to or has any present or future liability or obligation (contingent or otherwise) or with respect to contributewhich it is otherwise bound. All such plans, agreements, programs, policies and arrangements shall be collectively referred to as the “Company Plans.” The Company has provided or made available to Parent a current, accurate and complete copy of each Company Plan, or if such Company Plan is not in written form, a written summary of all of the material terms of such Company Plan. With respect to each material Company Plan, the Company has furnished or made available to Parent a current, accurate and complete copy thereof, including any amendments, andof, to the extent applicable: (i) any related trust agreement or other funding instrument, (ii) the most recent determination, opinion or advisory determination letter of the Internal Revenue Service (the “IRS”), if applicable, (iii) any summary plan description or description, summary of material modifications, and other similar material written communications by (or a written description of any material oral communications) to the employees of the Company or its Subsidiaries to their employees concerning the extent of the benefits provided under a Company Plan Plan, and (iv) for the three most recent years and as applicable (A) the Form 5500 and attached schedules, (B) audited financial statements, statements and (C) actuarial valuation reports.
(b) Except as disclosed in Section 3.13(b) of the Company Disclosure Letter and except as, individually or in the aggregate, has not had, and would not reasonably be expected to have, a Material Adverse Effect on Neither the Company, its Subsidiaries, or any member of their Controlled Group (defined as any organization which is a member of a controlled, affiliated or otherwise related group of entities within the meaning of Code Section 414(b), (c), (m) or (o)) has ever sponsored, maintained, contributed to or been required to contribute to or incurred any liability (contingent or otherwise) with respect to: (i) a “multiemployer plan” (within the meaning of ERISA Section 3(37)), (ii) an “employee pension benefit plan,” within the meaning of Section 3(2) of ERISA (“Pension Plan”) that is subject to Title IV of ERISA or Section 412 of the Code, (iii) a Pension Plan which is a “multiple employer plan” as defined in Section 413 of the Code, or (iv) a “funded welfare plan” within the meaning of Section 419 of the Code.
(c) With respect to the Company Plans:
(1i) each Company Plan has been established and administered complies in accordance all material respects with its terms and materially complies in compliance form and in operation with the applicable provisions of ERISA, ERISA and the Code and all other applicable Laws, and in the six years preceding the date hereof no reportable event, as defined in Section 4043 of ERISA, no prohibited transaction, as described in Section 406 of ERISA or Section 4975 of the Code, or failure to satisfy the minimum funding standards, within the meaning of Section 302 of ERISA and 412 of the Code, has occurred with respect to any Company Plan, and all contributions required to be made under the terms of any Company Plan have been timely madelegal requirements;
(2ii) each Company Plan intended to be qualified under Section 401(a) of the Code (A) has received a favorable determination, advisory and/or opinion letter, as applicable, from the IRS that it the form of such plan is so qualified, (B) the trust maintained thereunder has been determined to be exempt from taxation under Section 501(a) of the Code qualified and (C) to the Company’s knowledge, nothing has occurred to the knowledge of the Company since the date of such letter that could would reasonably be expected to cause the loss of the sponsor’s ability to rely upon such letter, and nothing has occurred to the knowledge of the Company that would reasonably be expected to result in the loss of the qualified status of such Company Plan;
(3iii) there is no material Action (including any investigation, audit or other administrative proceeding) by the Department of Labor, the Pension Benefit Guaranty CorporationCorporation (the “PBGC”), the IRS or any other Governmental Entity or by any plan participant or beneficiary pending, or to the knowledge of the Company, threatened, relating to the Company Plans, any fiduciaries thereof to which the Company could have an indemnification obligation with respect to their duties to the Company Plans or the assets of any of the trusts under any of the Company Plans (other than routine claims for benefits) nor, to the knowledge of the Company, are there facts or circumstances that exist that could reasonably be expect to give rise to any such Actions;
(4) no Company Plan is or, within the preceding six years, has been subject to Title IV of ERISA or subject to Section 412 of the Code and neither the Company nor any Person that is a member of a “controlled group of corporations” with, or is under “common control” with, or is a member of the same “affiliated service group” with the Company, in each case, as defined in Sections 414(b), (c), (m) or (o) of the Code, maintains or contributes to (or has in the past six years maintained or contributed to) a multiemployer plan as defined in Section 3(37) of ERISA or a Title IV Plan;
(5) the Company and its Subsidiaries are not subject to any material liability, including additional contributions, fine, penalties or loss of Tax Deductions as a result of the administration or operation of any Company Plan that is a “group health plan” (as such term is defined in Section 5000(b)(1) of the Code);
(6) no Company Plan provides welfare benefits, including death or medical benefits (whether or not insured) beyond retirement or termination of service, other than coverage mandated solely by applicable Law;
(7iv) none of the Company Plans provides for payment of an amount or provision of a benefit, the increase of a payment or benefit, the payment of a contingent amount or provision of a contingent benefitcurrently provides, or the acceleration reflects or represents any liability to provide post-termination or retiree welfare benefits to any person for any reason, except as may be required by Section 601 et seq. of ERISA and Section 4980B(b) of the paymentCode or other applicable similar law regarding health care coverage continuation (collectively, funding or vesting of an amount or benefit determined or occasioned“COBRA”), in whole or in part, by reason and none of the Company, its Subsidiaries, or any members of their Controlled Group has any liability to provide post-termination or retiree welfare benefits to any person or ever represented, promised or contracted to any employee or former employee of the Company (either individually or to Company employees as a group) or any other person that such employee(s) or other person would be provided with post-termination or retiree welfare benefits, except to the extent required by statute or except with respect to a contractual obligation to reimburse any premiums such person may pay in order to obtain health coverage under COBRA;
(v) each Company Plan is subject exclusively to United States Law; and
(vi) the execution and delivery of this Agreement or and the consummation of the transactions contemplated hereby whether Merger will not, either alone or together in combination with any other event; and, (A) entitle any current or former employee, officer, director or consultant of the Company or any Subsidiary to severance pay, unemployment compensation or any other similar termination payment, or (B) accelerate the time of payment or vesting, or increase the amount of or otherwise enhance any benefit due to any such employee, officer, director or consultant.
(8) no amounts payable under d) Neither Company nor any Subsidiary is a party to any agreement, contract, arrangement or plan (including any Company Plan) that may reasonably be expected to result, separately or in the Company Plans will fail to be deductible for federal income tax purposes aggregate, in connection with the transactions contemplated by virtue this Agreement (either alone or in combination with any other events), in the payment of any “parachute payments” within the meaning of Section 280G of the Code as a result (without regard to Section 280G(b)(4) and 280G(b)(5) of the occurrence Code. There is no agreement, plan or other arrangement to which the Company or any Subsidiary is a party or by which any of them is otherwise bound to gross-up or indemnify any person in respect of Taxes or other liabilities incurred with respect to Section 409A or 4999 of the transactions contemplated by this Agreement, either alone or in combination with another eventCode.
(c) The Company and its Subsidiaries have not entered into any employment or employment-related agreements (including change in control agreements and offer letters) to which a named individual is a party, other than those set forth on Section 3.13(a) of the Company Disclosure Letter.
(de) Each Company Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A of the Code and related Treasury Department guidance has (i) been operated between January 1, 2005 and December 31, 2008, in good faith compliance with Section 409A of the Code and Notice 2005-01 and (ii) since January 1, 2009 (or such later date permitted under applicable guidance)any comparable or similar provision of state, been operated local, or foreign Law) complies in compliance, both form and is in documentary compliance, operation in all material respects, respects with the requirements of Section 409A of the Code.
Code (e) Neither the Company nor or any Subsidiary has a binding commitment to create any additional material Company Plancomparable or similar provision of state, local, or any plan, agreement or arrangement that would be a material Company Plan if adopted, or to modify or terminate any existing material Company Plan, except as required by foreign Law) and all applicable Law.
(f) The ESOP is an “employee stock ownership plan” within the meaning of Section 4975(e)(7) of the Code. Neither the Company nor the ESOP has, within the three year period immediately preceding the date of this Agreement, received any inquiry or notice from the IRS or any other governmental agency the effect of which is to question the qualification or status of the ESOP or any transaction entered into by the ESOP or the Company (guidance issued with respect to thereto (and has so complied for the ESOP). The ESOP and the Company have filed all reports, returns or other documents in respect of the ESOP entire period during which are required to be filed pursuant to the applicable provisions Section 409A of the Code and ERISA and the regulations thereunder. All loans entered into by the ESOP (the “ESOP Loans”has applied to such Company Plan) constitute “exempt loans” so that no amount paid or payable pursuant to any such Company Plan is subject to any additional Tax or interest under Treasury Regulation Section 54.4975-7(b)(1)(iii). The securities held by the ESOP constitute “employer securities” under ERISA Section 407(d)(1) and Section 409(l) 409A of the Code and “qualifying employer securities” under ERISA Section 407(d)(5) and Section 4975(e)(8) (or any comparable or similar provision of the Codestate, local, or foreign Law).
Appears in 1 contract
Benefit Plans. (a) The Company does not currently sponsor, maintain, or contribute to, and has not, within the past five years, sponsored, maintained, or contributed to or been required to contribute to, any "employee pension benefit plan" ("Pension Plan"), as such term is defined in Section 3.13(a3(2) of ERISA, including, solely for the Company Disclosure Letter contains a true and complete list of each material Company Plan. For purposes purpose of this Agreementsubsection, “a plan excluded from coverage by Section 4(b)(5) of ERISA.
(b) The Company Plan” means each “does not sponsor, maintain, contribute to, or has not, within the past five years, sponsored, maintained, or contributed to or been required to contribute to, any Pension Plan that is subject to Title IV of ERISA.
(c) The Company does not sponsor, maintain, or contribute to any "employee welfare benefit plan” " ("Welfare Plan"), as such term is defined in Section 3(1) of ERISA, whether insured or otherwise. The Company has not established or contributed to any "voluntary employees' beneficiary association" within the meaning of Section 3(3501(c)(9) of the Employee Retirement Income Security Act Code.
(d) Except as set forth in Sections 4.1I or 4.1J of 1974the Company Disclosure Schedule, as amended the Company does not currently maintain or contribute to any oral or written bonus, profit-sharing, compensation (“ERISA”)incentive or otherwise), stock purchasecommission, stock option, or other stock-based compensation, retirement, severance, employment, change-in-change of control, fringe benefitvacation, bonussick or parental leave, incentivedependent care, deferred compensation, employee loan cafeteria, disability, hospitalization, medical, death, retiree, insurance, or other employee benefit or welfare or other similar plan, policy, agreement, programtrust, policy fund, or other arrangement, whether arrangement providing for the remuneration or not subject to ERISA (including any funding mechanism therefor now in effect or required in the future as a result benefit of the transactions contemplated by this Agreement or otherwise), whether written or unwritten, in each case (i) maintained by the Company all or any of its Subsidiaries for current or former directorsemployees, employees or consultants of the Company or (ii) under which (A) any employee, director or consultant or former employee, director or consultant of the Company directors or any of its Subsidiaries has any present or future right to benefits and other person, that is neither a Pension Plan nor a Welfare Plan (Bcollectively, the "Compensation Plans").
(e) the Company or any of its Subsidiaries has had or has any present or future liability or obligation to contribute. With respect to each material Company Planthe Compensation Plans, the Company no event has furnished or made available to Parent a current, accurate and complete copy thereof, including any amendments, occurred and, to the extent applicable: (i) any related trust agreement or other funding instrument, (ii) the most recent determination, opinion or advisory letter knowledge of the Internal Revenue Service Company, there exists no condition or set of circumstances, in connection with which the Company would be subject to any liability under the terms of such Plans (other than the “IRS”payment of benefits thereunder), if applicableERISA, (iii) the Code or any summary plan description or other material written communications by the Company or its Subsidiaries to their employees concerning the extent of the benefits provided under a Company Plan and (iv) the most recent (A) Form 5500 and attached schedules, (B) audited financial statements, and (C) actuarial valuation reports.
(b) Except as disclosed in Section 3.13(b) of the Company Disclosure Letter and except asapplicable law that would, individually or in the aggregate, has not had, and would not reasonably be expected to have, have a Company Material Adverse Effect on the Company, Effect.
(f) The IRS has issued favorable determination letters with respect to the all Company Plans:
(1) each Company Plan has been established and administered in accordance with its terms and in compliance with the applicable provisions of ERISA, the Code and all other applicable Laws, and in the six years preceding the date hereof no reportable event, as defined in Section 4043 of ERISA, no prohibited transaction, as described in Section 406 of ERISA or Section 4975 of the Code, or failure to satisfy the minimum funding standards, within the meaning of Section 302 of ERISA and 412 of the Code, has occurred with respect to any Company Plan, and all contributions required to be made under the terms of any Company Plan have been timely made;
(2) each Company Plan Subsidiary Pension Plans that are intended to be qualified under Section 401(a) of the Code Code. The Company has provided or made available to Parent summaries of all Pension Plans, Welfare Plans, Compensation Plans, and related agreements, and complete and accurate copies of all annual reports (AForm 5500), favorable determination letters, current summary plan descriptions, and all employee handbooks or manuals.
(g) has received a favorable determinationThe execution of, advisory and/or opinion letter, as applicable, from the IRS that it is so qualified, (B) the trust maintained thereunder has been determined to be exempt from taxation under Section 501(a) and performance of the Code and transactions contemplated in, this Agreement will not (Ceither alone or upon the occurrence of any additional or subsequent events) constitute an event under any 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 the Company’s knowledge, nothing has occurred since the date of such letter fund benefits. No amount that could reasonably be expected to cause the loss of such qualified status of such Company Plan;
received (3) there is no Action (including any investigation, audit whether in cash or other administrative proceeding) by the Department of Labor, the Pension Benefit Guaranty Corporation, the IRS or any other Governmental Entity or by any plan participant or beneficiary pending, or to the knowledge of the Company, threatened, relating to the Company Plans, any fiduciaries thereof to which the Company could have an indemnification obligation with respect to their duties to the Company Plans property or the assets vesting of property) as a result of any of the trusts under transactions contemplated by this Agreement by any employee, officer, or director of the Company Plans (other than routine claims for benefits) nor, to the knowledge or any of the Company, are there facts or circumstances that exist that could reasonably be expect to give rise to any such Actions;
(4) no Company Plan is or, within the preceding six years, has been subject to Title IV of ERISA or subject to Section 412 of the Code and neither the Company nor any Person that its affiliates who is a member of a “controlled group of corporations” with, or "disqualified individual" (as such term is under “common control” with, or is a member of the same “affiliated service group” with the Company, in each case, as defined in Sections 414(b), (c), (mproposed Treasury Regulation Section 1.280G-1) or (o) of the Code, maintains or contributes to (or has under any Compensation Plan currently in the past six years maintained or contributed to) a multiemployer plan as defined in Section 3(37) of ERISA or a Title IV Plan;
(5) the Company and its Subsidiaries are not subject to any material liability, including additional contributions, fine, penalties or loss of Tax Deductions as a result of the administration or operation of any Company Plan that is a “group health plan” effect would be an "excess parachute payment" (as such term is defined in Section 5000(b)(1280G(b)(1) of the Code);
(6) no Company Plan provides welfare benefits, including death or medical benefits (whether or not insured) beyond retirement or termination of service, other than coverage mandated solely by applicable Law;
(7) none of the Company Plans provides for payment of an amount or provision of a benefit, the increase of a payment or benefit, the payment of a contingent amount or provision of a contingent benefit, or the acceleration of the payment, funding or vesting of an amount or benefit determined or occasioned, in whole or in part, by reason of the execution of this Agreement or the consummation of the transactions contemplated hereby whether alone or together with any other event; and
(8) no amounts payable under the Company Plans will fail to be deductible for federal income tax purposes by virtue of Section 280G of the Code as a result of the occurrence of the transactions contemplated by this Agreement, either alone or in combination with another event.
(c) The Company and its Subsidiaries have not entered into any employment or employment-related agreements (including change in control agreements and offer letters) to which a named individual is a party, other than those set forth on Section 3.13(a) of the Company Disclosure Letter.
(d) Each Company Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A of the Code and related Treasury Department guidance has (i) been operated between January 1, 2005 and December 31, 2008, in good faith compliance with Section 409A of the Code and Notice 2005-01 and (ii) since January 1, 2009 (or such later date permitted under applicable guidance), been operated in compliance, and is in documentary compliance, in all material respects, with the requirements of Section 409A of the Code.
(e) Neither the Company nor any Subsidiary has a binding commitment to create any additional material Company Plan, or any plan, agreement or arrangement that would be a material Company Plan if adopted, or to modify or terminate any existing material Company Plan, except as required by applicable Law.
(f) The ESOP is an “employee stock ownership plan” within the meaning of Section 4975(e)(7) of the Code. Neither the Company nor the ESOP has, within the three year period immediately preceding the date of this Agreement, received any inquiry or notice from the IRS or any other governmental agency the effect of which is to question the qualification or status of the ESOP or any transaction entered into by the ESOP or the Company (with respect to the ESOP). The ESOP and the Company have filed all reports, returns or other documents in respect of the ESOP which are required to be filed pursuant to the applicable provisions of the Code and ERISA and the regulations thereunder. All loans entered into by the ESOP (the “ESOP Loans”) constitute “exempt loans” under Treasury Regulation Section 54.4975-7(b)(1)(iii). The securities held by the ESOP constitute “employer securities” under ERISA Section 407(d)(1) and Section 409(l) of the Code and “qualifying employer securities” under ERISA Section 407(d)(5) and Section 4975(e)(8) of the Code.
Appears in 1 contract
Sources: Merger Agreement (Landacorp Inc)
Benefit Plans. (a) Section 3.13(a) of the The Company Disclosure Letter contains has provided to Parent a true and complete list of each material Company Plan. For purposes of this Agreement, “Company Plan” means each “employee benefit plan” (within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”)), and all stock purchase, stock option, severance, employment, change-in-control, fringe benefit, bonus, incentive, deferred compensation, employee loan or compensation and all other employee benefit planplans, agreementagreements, programprograms, policy policies or other arrangementarrangements, whether or not subject to ERISA (including any funding mechanism therefor now in effect or required in the future as a result of the transactions contemplated by this Agreement or otherwise), whether written formal or unwritteninformal, written, legally binding or not, that is currently in each case effect, was maintained since December 31, 2004 or which has been approved before the date of the Original Agreement but is not yet effective, for the benefit of (i) maintained by the Company directors or any of its Subsidiaries for current or former directors, employees or consultants of the Company or (ii) under which (A) any employee, director or consultant or former employee, director or consultant of the Company or any other persons performing services for the Company, (ii) former directors or employees of its Subsidiaries has any present or future right to benefits and (B) the Company or any other persons formerly performing services for the Company, or (iii) beneficiaries of its Subsidiaries has had anyone described in (i) or has any present or future liability or obligation (ii). All such plans, agreements, programs, policies and arrangements shall be collectively referred to contribute. as the “Company Plans.” With respect to each material Company Plan, the Company has furnished or made available to Parent a current, accurate and complete copy thereof, including any amendments, thereof and, to the extent applicable: (i) any related trust agreement or other funding instrument, (ii) the most recent determination, opinion or advisory determination letter of the Internal Revenue Service (the “IRS”), if applicable, (iii) any summary plan description or with each summary of material modifications thereto, if any, employee handbooks and other material written communications (or a description of any oral communications) by the Company or its Subsidiaries to their employees concerning the extent of the benefits provided under a Company Plan and (iv) for the three (3) most recent years (A) Form 5500 Forms 5500, 941 and 1041 and attached schedules, (B) audited financial statements, and (C) actuarial valuation reports.
(b) Except as disclosed in Each Company Plan intended to be qualified under Section 3.13(b401(a) of the Company Disclosure Letter and except asCode has received a favorable determination, individually or in advisory and/or opinion letter, as applicable, from the aggregateIRS that it is so qualified and, to the knowledge of the Company, nothing has not had, and occurred since the date of such letter that would not reasonably be expected to havecause the loss of such qualified status of such Company Plan or cause the imposition of any penalty or Tax liability.
(c) The Company is not liable for, a Material Adverse Effect on and the Company will not be liable for, any liability of any “ERISA Affiliate” (hereby defined to include any trade or business, whether or not incorporated, other than the Company, which has employees who are or have been at any date of determination occurring within the preceding six (6) years, treated pursuant to Section 4001(a)(14) of ERISA and/or Section 414 of the Code as employees of a single employer which includes the Company) including predecessors thereof) with regard to any Company Plan maintained, sponsored or contributed to by an ERISA Affiliate (if a like definition of Company Plan were applicable to the ERISA Affiliate in the same manner as it applies to the Company) (each such Company Plan for an ERISA Affiliate being an “ERISA Affiliate Plan”), including, without limitation: (i) withdrawal liability arising under Title IV, Subtitle E, Part 1 of ERISA; (ii) liabilities to the Pension Benefit Guaranty Corporation (“PBGC”); (iii) liabilities under Section 412 of the Code or Section 302(a)(2) of ERISA; (iv) liabilities resulting from the failure on the part of the Company, any ERISA Affiliate, each Company Plan or each Company Plan “sponsor” or “administrator” (within the meaning of Section 3(16) of ERISA) to comply in all respects with the applicable requirements of Section 4980B of the Code and Section 601 et seq. of ERISA; or (v) liabilities resulting from an ERISA Affiliate Plan’s failure to satisfy the reporting and disclosure requirements of ERISA and the Code.
(d) Neither the Company nor any ERISA Affiliate has ever maintained or contributed to a multiemployer plan (as defined in Section 3(37) of ERISA).
(e) With respect to the Company Plans, except as disclosed in the Company SEC Documents or in Section 4.12 of the Company Disclosure Letter:
(1i) each Company Plan has been established and administered in accordance with its terms and in material compliance with the applicable provisions of ERISA, ERISA and the Code and all other applicable LawsCode, and in the six years preceding the date hereof no reportable event, as defined in Section 4043 of ERISA, no prohibited transaction, as described in Section 406 of ERISA or Section 4975 of the Code, or failure to satisfy the minimum accumulated funding standardsdeficiency, within the meaning of as defined in Section 302 of ERISA and 412 of the Code, has occurred with respect to any Company Plan, and all contributions required to be made under the terms of any Company Plan have been timely made;
(2) each Company Plan intended to be qualified under Section 401(a) of the Code (A) has received a favorable determination, advisory and/or opinion letter, as applicable, from the IRS that it is so qualified, (B) the trust maintained thereunder has been determined to be exempt from taxation under Section 501(a) of the Code and (Cii) to the knowledge of the Company’s knowledge, nothing has occurred since the date of such letter that could reasonably be expected to cause the loss of such qualified status of such Company Plan;
(3) there is no Action (including any investigation, audit or other administrative proceeding) by the Department of Labor, the Pension Benefit Guaranty CorporationPBGC, the IRS or any other Governmental Entity or by any plan participant or beneficiary pending, threatened in writing, or to the knowledge of the Company, threatened, relating to the Company Plans, any fiduciaries thereof to which the Company could have an indemnification obligation with respect to their duties to the Company Plans or the assets of any of the trusts under any of the Company Plans (other than routine claims for benefits) nor, to the knowledge of the Company, are there facts or circumstances that exist that could reasonably be expect to give rise to any such Actions;; and
(4iii) no if a Company Plan is orpurports to be a voluntary employees’ beneficiary association (“VEBA”), within a request for a determination letter for the preceding six years, VEBA has been subject submitted to Title IV of ERISA or subject to and approved by the IRS that the VEBA is exempt from federal income tax under Section 412 of the Code and neither the Company nor any Person that is a member of a “controlled group of corporations” with, or is under “common control” with, or is a member of the same “affiliated service group” with the Company, in each case, as defined in Sections 414(b), (c), (m) or (o501(c)(9) of the Code, maintains and nothing has occurred or contributes is expected to occur that caused or could cause the loss of such qualification or exemption or the imposition of any tax, interest or penalty with respect thereto.
(f) Neither the Company nor any ERISA Affiliate has any obligation to contribute to or provide benefits pursuant to, and has in the past six years maintained or contributed no other liability of any kind with respect to, (i) a multiemployer plan as defined in "multiple employer welfare arrangement" (MEWA) (within the meaning of Section 3(373(40) of ERISA ERISA), or (ii) a Title IV Plan;
"plan maintained by more than one employer" (5) within the Company and its Subsidiaries are not subject to any material liability, including additional contributions, fine, penalties or loss meaning of Tax Deductions as a result of the administration or operation of any Company Plan that is a “group health plan” (as such term is defined in Section 5000(b)(1413(c) of the Code);.
(6g) no Company Plan provides welfare benefits, including death or medical benefits (whether or not insured) beyond retirement or termination of service, other than coverage mandated solely by applicable Law;
(7) none None of the Company Plans provides provide for payment of an amount or provision of a benefit, the increase of a payment or benefitbenefit amount, the payment of a contingent amount or provision of a contingent benefit, benefit or the acceleration of the payment, funding payment or vesting of an amount or a benefit determined or occasioned, in whole or in part, by reason of the execution of this Agreement or the consummation of the transactions contemplated hereby whether alone hereby. No amount or together benefit that could be received by any "disqualified individual" (as defined in Treasury Regulation Section 1.280G-1) with any other event; and
(8) no amounts payable under respect to the Company Plans will fail to be deductible for federal income tax purposes by virtue of Section 280G of the Code as a result of the occurrence of or any Subsidiary in connection with the transactions contemplated by this Agreement, either Agreement (alone or in combination with another any other event, and whether pursuant to a Company Plan or otherwise) could be characterized as an "excess parachute payment" (as defined in Section 280G(b)(1) of the Code).
(ch) The No Company and its Subsidiaries have not entered into any Plan provides for post-employment or employment-related agreements (including change in control agreements and offer letters) welfare benefits except to which a named individual is a party, other than those set forth on the extent required by Section 3.13(a) 4980B of the Company Disclosure LetterCode or applicable state Law.
(di) Each Company Plan that is a “nonqualified deferred compensation plan” within the meaning of subject to Section 409A of the Code has complied in form and related Treasury Department guidance has (i) been operated between January 1, 2005 and December 31, 2008, in good faith compliance with Section 409A of the Code and Notice 2005-01 and (ii) since January 1, 2009 (or such later date permitted under applicable guidance), been operated in compliance, and is in documentary compliance, in all material respects, operation with the requirements of Section 409A of the Code. No individual is entitled to any gross-up, make-whole or other additional payment from the Company or any of its Subsidiaries in respect of any Tax (including federal, state, local or foreign income, excise or other Taxes (including Taxes imposed under Section 409A and 4999 of the Code)) or interest or penalty related thereto.
(ej) Neither the Company nor any Subsidiary has a binding commitment to create any additional material Company Plan, or any plan, agreement or arrangement that would be a material Each Company Plan if adopted, or that is subject to modify or terminate any existing material Company Plan, except as required by applicable Law.
(f) The ESOP is an “employee stock ownership plan” within the meaning of Section 4975(e)(71862(b)(1) of the Code. Neither SSA has been operated in compliance with the Company nor the ESOP has, within the three year period immediately preceding the date secondary payor requirements of this Agreement, received any inquiry or notice from the IRS or any other governmental agency the effect of which is to question the qualification or status of the ESOP or any transaction entered into by the ESOP or the Company (with respect to the ESOP). The ESOP and the Company have filed all reports, returns or other documents in respect of the ESOP which are required to be filed pursuant to the applicable provisions of the Code and ERISA and the regulations thereunder. All loans entered into by the ESOP (the “ESOP Loans”) constitute “exempt loans” under Treasury Regulation Section 54.4975-7(b)(1)(iii). The securities held by the ESOP constitute “employer securities” under ERISA Section 407(d)(1) and Section 409(l) of the Code and “qualifying employer securities” under ERISA Section 407(d)(5) and Section 4975(e)(8) of the Code1862 thereof.
Appears in 1 contract