Benefit Plans. (i) Set forth on Schedule 3.19(a) is a true and complete list of each material Benefit Plan of the Purchaser and its Subsidiaries (each, a “Purchaser Benefit Plan”). With respect to each Purchaser Benefit Plan, there are no funded benefit obligations for which contributions have not been materially made or properly accrued and there are no material unfunded benefit obligations that have not been accounted for by reserves, or otherwise properly footnoted in accordance with GAAP on the Purchaser Financials. Except as set forth on Schedule 3.19(a), neither the Purchaser nor any Subsidiary or has in the past been a member of a “controlled group” for purposes of Section 414(b), (c), (m) or (o) of the Code other than with the Purchaser or another Subsidiary, nor does the Purchaser or any Subsidiary have any Liability with respect to any collectively-bargained for plans, whether or not subject to the provisions of ERISA. (ii) Each Purchaser Benefit Plan in all material respects is and has been operated in compliance with all applicable Laws in all material respects, including ERISA and the Code. Each Purchaser Benefit Plan which is intended to be “qualified” within the meaning of Section 401(a) of the Code (i) has been determined by the IRS to be so qualified (or is based on a prototype plan which has received a favorable opinion letter) during the period from its adoption to the date of this Agreement and (ii) is funded through a trust exempt from taxation under Section 501(a) of the Code. To the Knowledge of the Purchaser, no fact exists which could adversely affect the qualified status of such Purchaser Benefit Plans or the exempt status of such trusts. (iii) With respect to each Purchaser Benefit Plan, the Purchaser has made available to the Seller accurate and complete copies, if applicable, of: (i) all Purchaser Benefit Plan documents and agreements and related trust agreements or annuity Contracts (including any amendments, modifications or supplements thereto); (ii) all summary plan descriptions and material modifications thereto; (iii) the three (3) most recent Forms 5500, if applicable, and annual report, including all schedules thereto; (iv) the most recent annual and periodic accounting of plan assets; (v) the three (3) most recent nondiscrimination testing reports; (vi) the most recent determination letter received from the IRS, if any; (vii) the most recent actuarial valuation; and (viii) all material written communications between the Purchaser or any Subsidiary or any Purchaser Benefit Plan and any Governmental Authority and relating to a Purchaser Benefit Plan within six (6) years preceding the date of this Agreement. (iv) With respect to each Purchaser Benefit Plan: (i) such Purchaser Benefit Plan has been administered and enforced in all material respects in accordance with its terms, the Code and ERISA; (ii) neither the Purchaser nor any Subsidiary nor any employee, officer or director thereof that is a fiduciary (under ERISA) with respect to such Purchaser Benefit Plan has breached any of its fiduciary responsibilities, obligations or duties imposed on it by ERISA; (iii) no Action is pending or threatened in writing (other than routine claims for benefits arising in the ordinary course of administration); (iv) nothing has occurred with respect to any Purchaser Benefit Plan that has subjected the Purchaser or any Subsidiary to any material penalty under Section 502 of ERISA or Section 4975 of the Code; and (v) all contributions and premiums due through the Closing Date have been made in all material respects as required under ERISA or have been fully accrued in all material respects on the Purchaser Financials. (v) No Purchaser Benefit Plan is, and neither the Purchaser or any Subsidiary or any of their respective ERISA Affiliates sponsors, maintains, contributes to, is required to contribute to, or otherwise has or could reasonably be expected to have any current or contingent Liability under or with respect to, a “defined benefit plan” (as defined in Section 414(j) of the Code), a “multiemployer plan” (as defined in Section 3(37) of ERISA) or a “multiple employer plan” (as described in Section 413(c) of the Code) or is otherwise subject to Title IV of ERISA or Section 412 of the Code. To the Purchaser’s Knowledge, no Purchaser Benefit Plan will become a multiple employer plan with respect to any Purchaser Entity immediately after the Closing Date. Neither the Purchaser nor any Subsidiary currently maintains or has ever maintained, or is required currently or has ever been required to contribute to or otherwise participate in, a multiple employer welfare arrangement or voluntary employees’ beneficiary association as defined in Section 501(c)(9) of the Code. For purposes of this Agreement, “ERISA Affiliate” means, with respect to any Person, any Person or entity (whether or not incorporated) that is under common control or treated as one employer under Section 4001(b)(1) of ERISA or Section 414(b), (c), (m) or (o) of the Code.
Appears in 4 contracts
Samples: Agreement and Plan of Merger (MICT, Inc.), Agreement and Plan of Merger (Tingo, Inc.), Agreement and Plan of Merger (MICT, Inc.)
Benefit Plans. (i) Set forth on Schedule 3.19(a4.19(a) is a true and complete list of each material Benefit Plan of the Purchaser and its Subsidiaries a Target Entity (each, a “Purchaser Company Benefit Plan”). With respect to each Purchaser Company Benefit Plan, there are no funded benefit obligations for which contributions have not been materially made or properly accrued and there are no material unfunded benefit obligations that have not been accounted for by reserves, or otherwise properly footnoted in accordance with GAAP on the Purchaser Seller Financials. Except as set forth on Schedule 3.19(a4.19(a), neither the Purchaser nor any Subsidiary no Target Entity is or has in the past been a member of a “controlled group” for purposes of Section 414(b), (c), (m) or (o) of the Code other than with the Purchaser or another SubsidiaryTarget Entity, nor does the Purchaser or any Subsidiary Target Entity have any Liability with respect to any collectively-bargained for plans, whether or not subject to the provisions of ERISA.
(ii) Each Purchaser Company Benefit Plan in all material respects is and has been operated in compliance with all applicable Laws in all material respects, including ERISA and the Code. Each Purchaser Company Benefit Plan which is intended to be “qualified” within the meaning of Section 401(a) of the Code (i) has been determined by the IRS to be so qualified (or is based on a prototype plan which has received a favorable opinion letter) during the period from its adoption to the date of this Agreement and (ii) is funded through a trust exempt from taxation under Section 501(a) of the Code. To the Knowledge of the PurchaserSeller, no fact exists which could adversely affect the qualified status of such Purchaser Company Benefit Plans or the exempt status of such trusts.
(iii) With respect to each Purchaser Company Benefit Plan, the Purchaser Company has made available to the Seller Purchaser accurate and complete copies, if applicable, of: (i) all Purchaser Company Benefit Plan documents and agreements and related trust agreements or annuity Contracts (including any amendments, modifications or supplements thereto); (ii) all summary plan descriptions and material modifications thereto; (iii) the three (3) most recent Forms 5500, if applicable, and annual report, including all schedules thereto; (iv) the most recent annual and periodic accounting of plan assets; (v) the three (3) most recent nondiscrimination testing reports; (vi) the most recent determination letter received from the IRS, if any; (vii) the most recent actuarial valuation; and (viii) all material written communications between the Purchaser a Target Entity or any Subsidiary or any Purchaser Company Benefit Plan and any Governmental Authority and relating to a Purchaser Company Benefit Plan within six (6) years preceding the date of this Agreement.
(iv) With respect to each Purchaser Company Benefit Plan: (i) such Purchaser Company Benefit Plan has been administered and enforced in all material respects in accordance with its terms, the Code and ERISA; (ii) neither the Purchaser nor any Subsidiary no Target Entity nor any employee, officer or director thereof that is a fiduciary (under ERISA) with respect to such Purchaser Company Benefit Plan has breached any of its fiduciary responsibilities, obligations or duties imposed on it by ERISA; (iii) no Action is pending or threatened in writing (other than routine claims for benefits arising in the ordinary course of administration); (iv) nothing has occurred with respect to any Purchaser Company Benefit Plan that has subjected the Purchaser or any Subsidiary Target Entity to any material penalty under Section 502 of ERISA or Section 4975 of the Code; and (v) all contributions and premiums due through the Closing Date have been made in all material respects as required under ERISA or have been fully accrued in all material respects on the Purchaser Seller Financials.
(v) No Purchaser Company Benefit Plan is, and neither the Purchaser or any Subsidiary no Target Entity or any of their its respective ERISA Affiliates sponsors, maintains, contributes to, is required to contribute to, or otherwise has or could reasonably be expected to have any current or contingent Liability under or with respect to, a “defined benefit plan” (as defined in Section 414(j) of the Code), a “multiemployer plan” (as defined in Section 3(37) of ERISA) or a “multiple employer plan” (as described in Section 413(c) of the Code) or is otherwise subject to Title IV of ERISA or Section 412 of the Code. To the PurchaserSeller’s Knowledge, no Purchaser Company Benefit Plan will become a multiple employer plan with respect to any Purchaser Target Entity immediately after the Closing Date. Neither the Purchaser nor any Subsidiary No Target Entity currently maintains or has ever maintained, or is required currently or has ever been required to contribute to or otherwise participate in, a multiple employer welfare arrangement or voluntary employees’ beneficiary association as defined in Section 501(c)(9) of the Code. For purposes of this Agreement, “ERISA Affiliate” means, .
(vi) There is no arrangement under any Company Benefit Plan with respect to any Person, employee that would result in the payment of any Person amount that by operation of Sections 280G or entity (whether or not incorporated) that is under common control or treated as one employer under Section 4001(b)(1162(m) of the Code would not be deductible by the Target Entities and no arrangement exists pursuant to which a Target Entity will be required to “gross up” or otherwise compensate any person because of the imposition of any excise tax on a payment to such person.
(vii) With respect to each Company Benefit Plan which is a “welfare plan” (as described in Section 3(1) of ERISA): (i) no such plan provides medical or death benefits with respect to current or former employees of a Target Entity beyond their termination of employment (other than coverage mandated by Law, which is paid solely by such employees); and (ii) there are no reserves, assets, surplus or prepaid premiums under any such plan. Each Target Entity has complied with the provisions of Section 601 et seq. of ERISA or and Section 414(b), (c), (m) or (o) 4980B of the Code.
(viii) Except as set forth on Schedule 4.19(h), the consummation of the transactions contemplated by this Agreement and the Ancillary Documents will not: (i) entitle any individual to severance pay, unemployment compensation or other benefits or compensation; or (ii) accelerate the time of payment or vesting, or increase the amount of any compensation due, or in respect of, any individual. No Target Entity has incurred any Liability for any Tax imposed under Chapter 43 of the Code or civil liability under Section 502(i) or (l) of ERISA.
(ix) Each Company Benefit Plan that constitutes, in any part, a “nonqualified deferred compensation plan” (as defined in Section 409A of the Code) is listed on Schedule 4.19(i) and has been, in all material respects, in documentary and operational compliance with Section 409A of the Code and all applicable IRS guidance promulgated thereunder. There is no Contract or plan to which any Target Entity is a party or by which it is bound to compensate any employee, consultant or director for penalty taxes incurred pursuant to Section 409A of the Code.
Appears in 4 contracts
Samples: Agreement and Plan of Merger (MICT, Inc.), Agreement and Plan of Merger (Tingo, Inc.), Agreement and Plan of Merger (Tingo, Inc.)
Benefit Plans. (ia) Set forth on Schedule 3.19(a) is a true and complete list of each material Benefit Plan of the Purchaser and its Subsidiaries (each, a “Purchaser Benefit Plan”). With respect to each Purchaser Benefit Plan, there are no funded benefit obligations for which contributions have not been materially made or properly accrued and there are no material unfunded benefit obligations that have not been accounted for by reserves, or otherwise properly footnoted in accordance with GAAP on the Purchaser Financials. Except as set forth on Schedule 3.19(a), neither the Purchaser nor any Subsidiary or has in the past been a member of a “controlled group” for purposes of Section 414(b), (c), (m) or (o) of the Code other than with the Purchaser or another Subsidiary, nor does the Purchaser or any Subsidiary have any Liability with respect to any collectively-bargained for plans, whether or not subject to the provisions of ERISA.
(iib) Each Purchaser Benefit Plan in all material respects is and has been operated in compliance with all applicable Laws in all material respects, including ERISA and the Code. Each Purchaser Benefit Plan which is intended to be “qualified” within the meaning of Section 401(a) of the Code (i) has been determined by the IRS to be so qualified (or is based on a prototype plan which has received a favorable opinion letter) during the period from its adoption to the date of this Agreement and (ii) is funded through a trust exempt from taxation under Section 501(a) of the Code. To the Knowledge of the Purchaser, no fact exists which could adversely affect the qualified status of such Purchaser Benefit Plans or the exempt status of such trusts.
(iiic) With respect to each Purchaser Benefit Plan, the Purchaser has made available to the Seller Company accurate and complete copies, if applicable, of: (i) all Purchaser Benefit Plan documents and agreements and related trust agreements or annuity Contracts (including any amendments, modifications or supplements thereto); (ii) all summary plan descriptions and material modifications thereto; (iii) the three (3) most recent Forms 5500, if applicable, and annual report, including all schedules thereto; (iv) the most recent annual and periodic accounting of plan assets; (v) the three (3) most recent nondiscrimination testing reports; (vi) the most recent determination letter received from the IRS, if any; (vii) the most recent actuarial valuation; and (viii) all material written communications between the Purchaser or any Subsidiary or any Purchaser Benefit Plan and any Governmental Authority and relating to a Purchaser Benefit Plan within six (6) years preceding the date of this Agreement.
(ivd) With respect to each Purchaser Benefit Plan: (i) such Purchaser Benefit Plan has been administered and enforced in all material respects in accordance with its terms, the Code and ERISA; (ii) neither the Purchaser nor any Subsidiary nor any employee, officer or director thereof that is a fiduciary (under ERISA) with respect to such Purchaser Benefit Plan has breached any of its fiduciary responsibilities, obligations or duties imposed on it by ERISA; (iii) no Action is pending or threatened in writing (other than routine claims for benefits arising in the ordinary course of administration); (iv) nothing has occurred with respect to any Purchaser Benefit Plan that has subjected the Purchaser or any Subsidiary to any material penalty under Section 502 of ERISA or Section 4975 of the Code; and (v) all contributions and premiums due through the Closing Date have been made in all material respects as required under ERISA or have been fully accrued in all material respects on the Purchaser Financials.
(ve) No Purchaser Benefit Plan is, and neither the Purchaser or any Subsidiary or any of their respective ERISA Affiliates sponsors, maintains, contributes to, is required to contribute to, or otherwise has or could reasonably be expected to have any current or contingent Liability under or with respect to, a “defined benefit plan” (as defined in Section 414(j) of the Code), a “multiemployer plan” (as defined in Section 3(37) of ERISA) or a “multiple employer plan” (as described in Section 413(c) of the Code) or is otherwise subject to Title IV of ERISA or Section 412 of the Code. To the Purchaser’s Knowledge, no Purchaser Benefit Plan will become a multiple employer plan with respect to any Purchaser Entity Target Company immediately after the Closing Date. Neither the Purchaser nor any Subsidiary currently maintains or has ever maintained, or is required currently or has ever been required to contribute to or otherwise participate in, a multiple employer welfare arrangement or voluntary employees’ beneficiary association as defined in Section 501(c)(9) of the Code. For purposes of this Agreement, “ERISA Affiliate” means, with respect to any Person, any Person or entity (whether or not incorporated) that is under common control or treated as one employer under Section 4001(b)(1) of ERISA or Section 414(b), (c), (m) or (o) of the Code.
Appears in 3 contracts
Samples: Agreement and Plan of Merger (MICT, Inc.), Merger Agreement (MICT, Inc.), Merger Agreement (Tingo, Inc.)
Benefit Plans. (i) Set forth on Schedule 3.19(a3.1(l)(i) is contains a true and complete list of each material Benefit Plan all “employee benefit plans” (as defined in Section 3(3) of ERISA) and all other bonus, stock option, deferred and incentive compensation plans and programs maintained or contributed to by the MMHC Entities for the benefit of its employees or former employees (all of the Purchaser and its Subsidiaries (each, a foregoing being referred to herein as the “Purchaser MMHC Benefit PlanPlans”). With respect to each Purchaser Benefit Plan, there are no funded benefit obligations for which contributions have not been materially made or properly accrued and there are no material unfunded benefit obligations that have not been accounted for by reserves, or otherwise properly footnoted in accordance with GAAP on the Purchaser Financials. .
(ii) Except as set forth on Schedule 3.19(a), neither the Purchaser nor any Subsidiary or has in the past been a member of a “controlled group” for purposes of Section 414(b3.1(l)(ii), (c), (mi) or (o) of the Code other than with the Purchaser or another Subsidiary, nor does the Purchaser or any Subsidiary have any Liability with respect to any collectively-bargained for plans, whether or not subject to the provisions of ERISA.
(ii) Each Purchaser each MMHC Benefit Plan in all material respects is and has been operated and administered pursuant to its terms and in material compliance with all applicable Laws in all material respectsERISA, including ERISA and the Code. Each Purchaser Benefit Plan which is intended to be “qualified” within the meaning of Section 401(a) of the Code (i) has been determined by the IRS to be so qualified (or is based on a prototype plan which has received a favorable opinion letter) during the period from its adoption to the date of this Agreement , and (ii) is funded through a trust exempt from taxation under Section 501(a) of the Code. To the Knowledge of the Purchaser, no fact exists which could adversely affect the qualified status of such Purchaser Benefit Plans or the exempt status of such trusts.
(iii) With respect to each Purchaser Benefit Plan, the Purchaser has made available to the Seller accurate and complete copies, if applicable, of: (i) all Purchaser Benefit Plan documents and agreements and related trust agreements or annuity Contracts (including any amendments, modifications or supplements thereto)Applicable Laws; (ii) all summary plan descriptions contributions due and material modifications thereto; (iii) payable by an MMHC Entity on or before the three (3) most recent Forms 5500, if applicable, and annual report, including all schedules thereto; (iv) the most recent annual and periodic accounting Closing Date in respect of plan assets; (v) the three (3) most recent nondiscrimination testing reports; (vi) the most recent determination letter received from the IRS, if any; (vii) the most recent actuarial valuation; and (viii) all material written communications between the Purchaser or any Subsidiary or any Purchaser MMHC Benefit Plan have been made in full and any Governmental Authority and relating to a Purchaser proper form, or adequate accruals have been provided for in the Financial Statements for all other contributions or amounts in respect of MMHC Benefit Plan within six (6) years preceding Plans for periods ending on or before the date of this Agreement.
(iv) With respect to each Purchaser Benefit Plan: (i) such Purchaser Benefit Plan has been administered and enforced in all material respects in accordance with its terms, the Code and ERISA; (ii) neither the Purchaser nor any Subsidiary nor any employee, officer or director thereof that is a fiduciary (under ERISA) with respect to such Purchaser Benefit Plan has breached any of its fiduciary responsibilities, obligations or duties imposed on it by ERISAClosing Date; (iii) no Action is pending MMHC Entity has breached the fiduciary rules of ERISA or threatened engaged in writing a prohibited transaction with respect to any MMHC Benefit Plan which would subject such MMHC Entity to any Tax or penalty imposed under Sections 4975 of the Code or Section 502 (other than routine claims for benefits arising in the ordinary course i), (j) or (l) of administration)ERISA; (iv) nothing has occurred with respect to any Purchaser no MMHC Benefit Plan that has subjected the Purchaser or any Subsidiary subject to any material penalty under Section 502 of ERISA or Section 4975 of the Code; and Part (v) all contributions and premiums due through the Closing Date have been made in all material respects as required under ERISA or have been fully accrued in all material respects on the Purchaser Financials.
(v) No Purchaser Benefit Plan is, and neither the Purchaser or any Subsidiary or any of their respective ERISA Affiliates sponsors, maintains, contributes to, is required to contribute to, or otherwise has or could reasonably be expected to have any current or contingent Liability under or with respect to, a “defined benefit plan” (as defined in Section 414(j3) of the Code), a “multiemployer plan” (as defined in Section 3(37) Subtitle B of ERISA) or a “multiple employer plan” (as described in Section 413(c) of the Code) or is otherwise subject to Title IV I of ERISA or Section 412 of the Code has incurred any “accumulated funding deficiency” (as defined in Section 412(a) of the Code. To ), whether or not waived; (v) no “reportable event” (within the Purchaser’s Knowledge, no Purchaser Benefit Plan will become a multiple employer plan meaning of Section 4043 of ERISA) has occurred with respect to any Purchaser Entity immediately after MMHC Benefit Plan; and (vi) no Proceedings (other than routine benefit claims) are pending or, to the Closing Date. Neither the Purchaser nor knowledge of MMHC, threatened against or relating to any Subsidiary currently maintains or has ever maintainedMMHC Benefit Plan, or is required currently or has ever been required to contribute to or otherwise participate in, a multiple employer welfare arrangement or voluntary employees’ beneficiary association as defined in Section 501(c)(9any fiduciary thereof.
(iii) True and complete copies of the Codefollowing documents, as they have been amended to the date hereof, relating to the MMHC Benefit Plans, have been made available to Otelco: (A) all MMHC Benefit Plan documents and (B) the Form 5500, 5500-C or 5500-R for each MMHC Benefit Plan for the two most recent plan years. For purposes This Section 3.1(l)(iii) contains the sole and exclusive representations and warranties of this Agreement, “ERISA Affiliate” means, MMHC with respect to any Person, any Person or entity (whether or not incorporated) that is under common control or treated as one employer under Section 4001(b)(1) of ERISA or Section 414(b), (c), (m) or (o) of the CodeMMHC Benefit Plans.
Appears in 3 contracts
Samples: Merger Agreement (Otelco Inc.), Merger Agreement (Otelco Telecommunications LLC), Merger Agreement (Brindlee Mountain Telephone Co)
Benefit Plans. In the Material Employee Jurisdictions all benefit and compensation schemes, plans, funds, contracts, policies, agreements or arrangements (iother than the US Benefit Plans and any schemes, plans, funds, contracts, policies, agreements or arrangements operated by any Governmental Entity) Set forth (A) operated by or on Schedule 3.19(abehalf of a Target Group Company or Business Seller, with respect to Target Company Employees or Target Business Employees or current or former employees or directors of a Target Group Company, (B) is a true and complete list in respect of each material Benefit Plan which any Target Group Company or Business Seller, with respect to Target Company Employees or Target Business Employees, the Seller or any member of the Purchaser and its Subsidiaries Seller’s Group contributes or has contributed or (eachC) in respect of which any Target Group Company or Business Seller, a “Purchaser Benefit Plan”). With with respect to each Purchaser Benefit PlanTarget Company Employees or Target Business Employees, there are no funded benefit obligations for which contributions have has any liability (whether actual or contingent), including, but not been materially made limited to, plans providing Employee Benefits or properly accrued and there are no material unfunded benefit obligations that have not been accounted for by reservesduring periods of sickness or disablement, or otherwise properly footnoted any deferred or incentive compensation, welfare, healthcare, medical, stock or stock-related award plans, including individual pension commitments, “jubilee” pension benefits and retirement and termination indemnity arrangements and, in relation to Switzerland, all plans, funds, contracts, policies, agreements or arrangements providing pension or other benefits on retirement (such schemes, plans, funds, contracts, policies, agreements and arrangements hereinafter being referred to, for each Seller, as “Non-US Benefit Plans”) and the US Benefit Plans have been administered in accordance with GAAP on the Purchaser Financials. Except as set forth on Schedule 3.19(a), neither the Purchaser nor any Subsidiary or has in the past been a member of a “controlled group” for purposes of Section 414(b), (c), (m) or (o) of the Code other than with the Purchaser or another Subsidiary, nor does the Purchaser or any Subsidiary have any Liability with respect to any collectively-bargained for plans, whether or not subject to the provisions of ERISA.
(ii) Each Purchaser Benefit Plan in all material respects is their terms and has been operated are in compliance with Applicable Law, except for any failures to so administer or be in compliance that, individually and in the aggregate, would not reasonably be expected to have a Material Adverse Effect. All required filings for all applicable Laws in all material respects, including ERISA and the Code. Each Purchaser Benefit Plan which is intended to be “qualified” within the meaning of Section 401(a) of the Code (i) has been determined by the IRS to be so qualified (or is based on a prototype plan which has received a favorable opinion letter) during the period from its adoption to the date of this Agreement and (ii) is funded through a trust exempt from taxation under Section 501(a) of the Code. To the Knowledge of the Purchaser, no fact exists which could adversely affect the qualified status of such Purchaser Benefit Plans or have been made on time and with the exempt status appropriate Governmental Entity, except for any failures to timely file that, individually and in the aggregate, would not reasonably be expected to have a Material Adverse Effect. As of such trusts.
(iii) With respect to each Purchaser Benefit Plan, the Purchaser has made available to the Seller accurate and complete copies, if applicable, of: (i) all Purchaser Benefit Plan documents and agreements and related trust agreements or annuity Contracts (including any amendments, modifications or supplements thereto); (ii) all summary plan descriptions and material modifications thereto; (iii) the three (3) most recent Forms 5500, if applicable, and annual report, including all schedules thereto; (iv) the most recent annual and periodic accounting of plan assets; (v) the three (3) most recent nondiscrimination testing reports; (vi) the most recent determination letter received from the IRS, if any; (vii) the most recent actuarial valuation; and (viii) all material written communications between the Purchaser or any Subsidiary or any Purchaser Benefit Plan and any Governmental Authority and relating to a Purchaser Benefit Plan within six (6) years preceding the date of this Agreement.
(iv) With respect , there is no existing, pending or, to each Purchaser Benefit Plan: (i) such Purchaser Benefit Plan has been administered and enforced in all material respects in accordance with its terms, the Code and ERISA; (ii) neither the Purchaser nor any Subsidiary nor any employee, officer or director thereof that is a fiduciary (under ERISA) with respect to such Purchaser Benefit Plan has breached any of its fiduciary responsibilities, obligations or duties imposed on it by ERISA; (iii) no Action is pending or threatened in writing (other than routine claims for benefits arising in the ordinary course of administration); (iv) nothing has occurred with respect to any Purchaser Benefit Plan that has subjected the Purchaser or any Subsidiary to any material penalty under Section 502 of ERISA or Section 4975 of the Code; and (v) all contributions and premiums due through the Closing Date have been made in all material respects as required under ERISA or have been fully accrued in all material respects on the Purchaser Financials.
(v) No Purchaser Benefit Plan is, and neither the Purchaser or any Subsidiary or any of their respective ERISA Affiliates sponsors, maintains, contributes to, is required to contribute to, or otherwise has or could reasonably be expected to have any current or contingent Liability under or with respect to, a “defined benefit plan” (as defined in Section 414(j) of the Code), a “multiemployer plan” (as defined in Section 3(37) of ERISA) or a “multiple employer plan” (as described in Section 413(c) of the Code) or is otherwise subject to Title IV of ERISA or Section 412 of the Code. To the PurchaserSeller’s Knowledge, no Purchaser threatened material litigation, claim or other dispute relating to the Benefit Plan will become a multiple employer plan with respect to any Purchaser Entity immediately after the Closing Date. Neither the Purchaser nor any Subsidiary currently maintains or has ever maintained, or is required currently or has ever been required to contribute to or otherwise participate in, a multiple employer welfare arrangement or voluntary employees’ beneficiary association as defined in Section 501(c)(9) of the Code. For purposes of this Agreement, “ERISA Affiliate” means, with respect to any Person, any Person or entity (whether or not incorporated) that is under common control or treated as one employer under Section 4001(b)(1) of ERISA or Section 414(b), (c), (m) or (o) of the CodePlans.
Appears in 3 contracts
Samples: Contribution Agreement (Glaxosmithkline PLC), Contribution Agreement (Novartis Ag), Contribution Agreement (Novartis Ag)
Benefit Plans. (ia) Set forth on Schedule 3.19(a3.18(a) is a true and complete list of each material Benefit Plan of the Purchaser and its Subsidiaries Company (each, a “Purchaser Company Benefit Plan”). With respect to each Purchaser Company Benefit Plan, there are no funded benefit obligations for which contributions have not been materially made or properly accrued and there are no material unfunded benefit obligations that have not been accounted for by reserves, or otherwise properly footnoted in accordance with GAAP on the Purchaser Company Financials. Except as set forth on Schedule 3.19(a), neither the Purchaser The Company is not nor any Subsidiary or has in the past been a member of a “controlled group” for purposes of Section 414(b), (c), (m) or (o) of the Code other than with the Purchaser or another SubsidiaryCode, nor does the Purchaser or any Subsidiary Company have any Liability with respect to any collectively-bargained for plans, whether or not subject to the provisions of ERISA. No statement, either written or oral, has been made by the Company to any Person with regard to any Company Benefit Plan that was not in accordance with the Company Benefit Plan in any material respect.
(iib) Each Purchaser Company Benefit Plan in all material respects is and has been operated at all times in compliance with all applicable Laws in all material respects, including ERISA and the Code. Each Purchaser Company Benefit Plan which is intended to be “qualified” within the meaning of Section 401(a) of the Code (i) has been determined by the IRS to be so qualified (or is based on a prototype plan which has received a favorable opinion letter) during the period from its adoption to the date of this Agreement and (ii) is funded through a its related trust has been determined to be exempt from taxation under Section 501(a) of the CodeCode or the Company have requested an initial favorable IRS determination of qualification and/or exemption within the period permitted by applicable Law. To the Knowledge of the Purchaser, no No fact exists which could adversely affect the qualified status of such Purchaser Company Benefit Plans or the exempt status of such trusts.
(iiic) With respect to each Purchaser Benefit Plan, the Purchaser has made available to the Seller accurate and complete copies, if applicable, of: (i) all Purchaser Benefit Plan documents and agreements and related trust agreements or annuity Contracts (including any amendments, modifications or supplements thereto); (ii) all summary plan descriptions and material modifications thereto; (iii) the three (3) most recent Forms 5500, if applicable, and annual report, including all schedules thereto; (iv) the most recent annual and periodic accounting of plan assets; (v) the three (3) most recent nondiscrimination testing reports; (vi) the most recent determination letter received from the IRS, if any; (vii) the most recent actuarial valuation; and (viii) all material written communications between the Purchaser or any Subsidiary or any Purchaser Benefit Plan and any Governmental Authority and relating to a Purchaser Benefit Plan within six (6) years preceding the date of this Agreement.
(iv) With respect to each Purchaser Company Benefit Plan: (i) such Purchaser Company Benefit Plan has been administered and enforced in all material respects in accordance with its terms, the Code and ERISA; (ii) neither the Purchaser nor any Subsidiary nor any employee, officer or director thereof that is a no breach of fiduciary (under ERISA) with respect to such Purchaser Benefit Plan duty has breached any of its fiduciary responsibilities, obligations or duties imposed on it by ERISAoccurred; (iii) no Action is pending pending, or to the Company’s Knowledge, threatened in writing (other than routine claims for benefits arising in the ordinary course of administration); (iv) nothing has occurred with respect to any Purchaser Benefit Plan that has subjected the Purchaser or any Subsidiary to any material penalty under no prohibited transaction, as defined in Section 502 406 of ERISA or Section 4975 of the Code, has occurred, excluding transactions effected pursuant to a statutory or administration exemption; and (v) all contributions and premiums due through the Closing Date have been made in all material respects as required under ERISA or have been fully accrued in all material respects on the Purchaser Company Financials.
(vd) No Purchaser Company Benefit Plan is, and neither the Purchaser or any Subsidiary or any of their respective ERISA Affiliates sponsors, maintains, contributes to, is required to contribute to, or otherwise has or could reasonably be expected to have any current or contingent Liability under or with respect to, a “defined benefit plan” (as defined in Section 414(j) of the Code), a “multiemployer plan” (as defined in Section 3(37) of ERISA) or a “multiple employer plan” (as described in Section 413(c) of the Code) or is otherwise subject to Title IV of ERISA or Section 412 of the Code, and no Target Company has incurred any Liability or otherwise could have any Liability, contingent or otherwise, under Title IV of ERISA and no condition presently exists that is expected to cause such Liability to be incurred. To the Purchaser’s Knowledge, no Purchaser No Company Benefit Plan will become a multiple employer plan with respect to any Purchaser Entity the Company immediately after the Closing Date. Neither the Purchaser nor any Subsidiary No Target Company currently maintains or has ever maintained, or is required currently or has ever been required to contribute to or otherwise participate in, a multiple employer welfare arrangement or voluntary employees’ beneficiary association as defined in Section 501(c)(9) of the Code. For purposes of this Agreement, “ERISA Affiliate” means, .
(e) There is no arrangement under any Company Benefit Plan with respect to any Personemployee that would result in the payment of any amount that by operation of Sections 280G or 162(m) of the Code would not be deductible by the Company and no arrangement exists pursuant to which the Company will be required to “gross up” or otherwise compensate any person because of the imposition of any excise tax on a payment to such person.
(f) The consummation of the transactions contemplated by this Agreement and the Ancillary Documents will not: (i) entitle any individual to severance pay, unemployment compensation or other benefits or compensation; (ii) accelerate the time of payment or vesting, or increase the amount of any compensation due, or in respect of, any Person individual; or entity (whether iii) result in or satisfy a condition to the payment of compensation that would, in combination with any other payment, result in an “excess parachute payment” within the meaning of Section 280G of the Code. The Company has not incorporated) that is incurred any Liability for any Tax imposed under common control Chapter 43 of the Code or treated as one employer civil liability under Section 4001(b)(1) of ERISA or Section 414(b), (c), (m502(i) or (ol) of ERISA.
(g) Except to the Codeextent required by Section 4980B of the Code or similar state Law, the Company does not provide health or welfare benefits to any former or retired employee or is obligated to provide such benefits to any active employee following such employee’s retirement or other termination of employment or service.
Appears in 3 contracts
Samples: Merger Agreement, Merger Agreement (DatChat, Inc.), Merger Agreement (Spherix Inc)
Benefit Plans. (ia) Set The Company Disclosure Letter sets forth on Schedule 3.19(a) is a true complete and complete correct list of each material Benefit Plan all employee benefit plans, as defined in Section 3(3) of the Purchaser and its Subsidiaries Employee Retirement Income Security Act of 1974, as amended (each, a “Purchaser Benefit PlanERISA”). , and all employment, compensation, bonus, stock option, stock purchase, restricted stock, incentive, deferred compensation, profit sharing, retiree medical or life insurance, split dollar insurance, supplemental retirement, severance, change of control, loans or other benefit plans, programs, arrangements or fringe benefits, in each case, which are provided, maintained, contributed to or sponsored by the Company, or for which the Company has any liability, contingent or otherwise (collectively, the “Company Benefit Plans”).
(b) With respect to each Purchaser Company Benefit Plan, there are no funded benefit obligations for which contributions the Company has furnished Parent with a complete and accurate copy of the plan document or other governing contract. The Company Benefit Plans have not been materially made or properly accrued operated and there are no material unfunded benefit obligations that have not been accounted for by reserves, or otherwise properly footnoted administered in accordance with GAAP on their terms and the Purchaser Financials. Except as set forth on Schedule 3.19(a), neither the Purchaser nor any Subsidiary or has in the past been a member of a “controlled group” for purposes of Section 414(b), (c), (m) or (o) applicable requirements of the Code other than with and applicable Law. There are no pending or, to the Purchaser knowledge of the Company, threatened suits, audits, examinations, actions, litigation or another Subsidiary, nor does claims (excluding claims for benefits incurred in the Purchaser or any Subsidiary have any Liability ordinary course) with respect to any collectively-bargained for plans, whether or not subject of the Company Benefit Plans which could reasonably be expected to the provisions of ERISAresult in a Company Material Adverse Effect.
(iic) Each Purchaser No Company Benefit Plan in all material respects is and has been operated in compliance with all applicable Laws in all material respects, including ERISA and the Code. Each Purchaser Benefit Plan which is intended to be “qualified” within the meaning of Section 401(a) of the Code (i) has been determined by the IRS to be so qualified (or is based on a prototype plan which has received a favorable opinion letter) during the period from its adoption to the date of this Agreement and (ii) is funded through a trust exempt from taxation under Section 501(a) of the Code. To the Knowledge of the Purchaser, no fact exists which could adversely affect the qualified status of such Purchaser Benefit Plans or the exempt status of such trusts.
(iii) With respect to each Purchaser Benefit Plan, the Purchaser has made available to the Seller accurate and complete copies, if applicable, of: (i) all Purchaser Benefit Plan documents and agreements and related trust agreements or annuity Contracts (including any amendments, modifications or supplements thereto); (ii) all summary plan descriptions and material modifications thereto; (iii) the three (3) most recent Forms 5500, if applicable, and annual report, including all schedules thereto; (iv) the most recent annual and periodic accounting of plan assets; (v) the three (3) most recent nondiscrimination testing reports; (vi) the most recent determination letter received from the IRS, if any; (vii) the most recent actuarial valuation; and (viii) all material written communications between the Purchaser or any Subsidiary or any Purchaser Benefit Plan and any Governmental Authority and relating to a Purchaser Benefit Plan within six (6) years preceding the date of this Agreement.
(iv) With respect to each Purchaser Benefit Plan: (i) such Purchaser Benefit Plan has been administered and enforced in all material respects in accordance with its terms, the Code and ERISA; (ii) neither the Purchaser nor any Subsidiary nor any employee, officer or director thereof that is a fiduciary (under ERISA) with respect to such Purchaser Benefit Plan has breached any of its fiduciary responsibilities, obligations or duties imposed on it by ERISA; (iii) no Action is pending or threatened in writing (other than routine claims for benefits arising in the ordinary course of administration); (iv) nothing has occurred with respect to any Purchaser Benefit Plan that has subjected the Purchaser or any Subsidiary to any material penalty under Section 502 of ERISA or Section 4975 of the Code; and (v) all contributions and premiums due through the Closing Date have been made in all material respects as required under ERISA or have been fully accrued in all material respects on the Purchaser Financials.
(v) No Purchaser Benefit Plan is, and neither the Purchaser or any Subsidiary or any of their respective ERISA Affiliates sponsors, maintains, contributes to, is required to contribute to, or otherwise has or could reasonably be expected to have any current or contingent Liability under or with respect to, a “defined benefit plan” (as defined in Section 414(j) of the Code), a “multiemployer plan” (as defined in Section 3(37) of ERISA) or a “multiple employer plan” (as described in Section 413(c) of the Code) or is otherwise subject to Title IV of ERISA or Section 412 of the Code. To the Purchaser’s Knowledge, no Purchaser Benefit Plan will become a multiple employer plan with respect to any Purchaser Entity immediately after the Closing Date. Neither the Purchaser Company nor any Subsidiary currently maintains trade or has ever maintained, or is required currently or has ever been required to contribute to or otherwise participate in, a multiple employer welfare arrangement or voluntary employees’ beneficiary association as defined in Section 501(c)(9) of the Code. For purposes of this Agreement, “ERISA Affiliate” means, with respect to any Person, any Person or entity business (whether or not incorporated) that which is under common control or has ever been treated as one a single employer with the Company under Section 4001(b)(1) of ERISA or Section 414(b), (c), (m) or (o) of the Code, has incurred any liability under Title IV of ERISA or Section 412 of the Code.
(d) The execution and delivery by the Company of each Transaction Agreement to which it is a party do not, and the consummation of the Merger and the other Transactions and compliance with the terms hereof will not (i) entitle any employee, officer or member of the Company or USPGI to any severance pay, bonus payment, finders fee, “change of control” payment or similar payment, (ii) accelerate the time of payment or vesting or trigger any payment or funding (through a grantor trust or otherwise) of compensation or benefits under, increase the amount payable or trigger any other material obligation pursuant to, any Company Benefit Plan or (iii) result in any breach or violation of, or a default under, any Company Benefit Plan.
Appears in 3 contracts
Samples: Agreement and Plan of Merger (GRH Holdings, L.L.C.), Agreement and Plan of Merger (Millstream Acquisition Corp), Agreement and Plan of Merger (RGGPLS Holding, Inc.)
Benefit Plans. (a) All “employee benefit plans” (within the meaning of section 3(3) of ERISA) and all stock purchase, stock option, severance, employment, change-in-control, fringe benefit, bonus, incentive, deferred compensation, employee loan, and all other employee benefit plans, agreements, programs, policies or other arrangements, and whether or not subject to ERISA under which any employee, former employee, director, officer, independent contractor or consultant of Purchaser or its Subsidiaries has any present or future right to benefits or under which Purchaser or its Subsidiaries has any present or future liability are referred to herein as the “Purchaser Plans.” No Purchaser Plan is subject to Title IV of ERISA.
(b) With respect to each material Purchaser Plan, to the extent requested by Company, Purchaser has furnished or made available to Purchaser a current, accurate and complete copy thereof and, to the extent applicable: (i) Set forth on Schedule 3.19(aany related trust agreement or other funding instrument, (ii) is a true and complete list of each material Benefit Plan the most recent determination or opinion letter of the Purchaser IRS, if applicable, (iii) the most recent summary plan description, and its Subsidiaries (eachiv) for the most recent year (A) the Form 5500 and attached schedules, a “Purchaser Benefit Plan”). (B) audited financial statements and (C) actuarial valuation reports.
(c) With respect to each Purchaser Benefit Plan, there are no funded benefit obligations for which contributions except to the extent that the inaccuracy of any of the representations set forth in this Section 4.10, individually or in the aggregate, have not had a Purchaser Material Adverse Effect:
(i) each Purchaser Plan has been materially made or properly accrued established and there are no material unfunded benefit obligations that have not been accounted for by reserves, or otherwise properly footnoted administered in accordance with GAAP on its terms and in compliance with the Purchaser Financials. Except as set forth on Schedule 3.19(a), neither the Purchaser nor any Subsidiary or has in the past been a member applicable provisions of a “controlled group” for purposes of Section 414(b), (c), (m) or (o) of ERISA and the Code and other than with applicable Law, and all contributions required to be made under the terms of any Purchaser or another Subsidiary, nor does the Purchaser or any Subsidiary Plan have any Liability with respect to any collectively-bargained for plans, whether or not subject to the provisions of ERISA.been timely made;
(ii) Each each Purchaser Benefit Plan in all material respects is and has been operated in compliance with all applicable Laws in all material respects, including ERISA and the Code. Each Purchaser Benefit Plan which is intended to be “qualified” within the meaning of qualified under Section 401(a) of the Code (iA) has been determined by the IRS to be so qualified (or is based on a prototype plan which has received a favorable determination, advisory and/or opinion letter) during , as applicable, from the period from its adoption IRS that it is so qualified and, to the knowledge of Purchaser, nothing has occurred since the date of this Agreement and (ii) is funded through a trust exempt from taxation under Section 501(a) such letter that would reasonably be expected to cause the loss of the Code. To the Knowledge of the Purchaser, no fact exists which could adversely affect the such qualified status of such Purchaser Benefit Plans Plan or the exempt status of such trusts.(B) is a volume submitter or prototype plan whose sponsor obtained a favorable opinion letter and on which letter Purchaser is permitted to rely; and
(iii) With respect to each Purchaser Benefit Plan, the Purchaser has made available to the Seller accurate and complete copies, if applicable, of: (i) all Purchaser Benefit Plan documents and agreements and related trust agreements or annuity Contracts there is no Action (including any amendmentsinvestigation, modifications audit or supplements thereto); (iiother administrative proceeding) all summary plan descriptions and material modifications thereto; (iii) by the three (3) most recent Forms 5500Department of Labor, if applicablethe PBGC, and annual report, including all schedules thereto; (iv) the most recent annual and periodic accounting of plan assets; (v) the three (3) most recent nondiscrimination testing reports; (vi) the most recent determination letter received from the IRS, if any; (vii) the most recent actuarial valuation; and (viii) all material written communications between the Purchaser IRS or any Subsidiary other Governmental Entity or by any Purchaser Benefit Plan and any Governmental Authority and plan participant or beneficiary pending, or to the knowledge of Purchaser, threatened, relating to a Purchaser Benefit Plan within six (6) years preceding the date of this Agreement.
(iv) With respect to each Purchaser Benefit Plan: (i) such Purchaser Benefit Plan has been administered and enforced in all material respects in accordance with its termsPlans, the Code and ERISA; (ii) neither the Purchaser nor any Subsidiary nor any employee, officer or director fiduciaries thereof that is a fiduciary (under ERISA) with respect to such their duties to Purchaser Benefit Plan has breached Plans or the assets of any of its fiduciary responsibilities, obligations or duties imposed on it by ERISA; (iii) no Action is pending or threatened in writing the trusts under any Purchaser Plans (other than routine claims for benefits arising in benefits) nor, to the ordinary course knowledge of administration)Purchaser, are there facts or circumstances that exist that could reasonably give rise to any such Action; and
(iv) nothing has occurred with respect to any Purchaser Benefit Plan that has subjected the Purchaser or any Subsidiary to any material penalty under no nonexempt “prohibited transaction” (as such term is defined in Section 502 406 of ERISA or and Section 4975 of the Code; and (v) all contributions and premiums due through the Closing Date have been made in all material respects as required under ERISA or have been fully accrued in all material respects on the Purchaser Financials).
(v) No Purchaser Benefit Plan is, and neither the Purchaser or any Subsidiary or any of their respective ERISA Affiliates sponsors, maintains, contributes to, is required to contribute to, or otherwise has or could reasonably be expected to have any current or contingent Liability under or with respect to, a “defined benefit plan” (as defined in Section 414(j) of the Code), a “multiemployer plan” (as defined in Section 3(37) of ERISA) or a “multiple employer plan” (as described in Section 413(c) of the Code) or is otherwise subject to Title IV of ERISA or Section 412 of the Code. To the Purchaser’s Knowledge, no Purchaser Benefit Plan will become a multiple employer plan with respect to any Purchaser Entity immediately after the Closing Date. Neither the Purchaser nor any Subsidiary currently maintains or has ever maintained, or is required currently or has ever been required to contribute to or otherwise participate in, a multiple employer welfare arrangement or voluntary employees’ beneficiary association as defined in Section 501(c)(9) of the Code. For purposes of this Agreement, “ERISA Affiliate” means, with respect to any Person, any Person or entity (whether or not incorporated) that is under common control or treated as one employer under Section 4001(b)(1) of ERISA or Section 414(b), (c), (m) or (o) of the Code.
Appears in 2 contracts
Samples: Merger Agreement (Hancock Holding Co), Merger Agreement (Whitney Holding Corp)
Benefit Plans. (ia) Set forth on Schedule 3.19(a4.19(a) is a true and complete list of each material Benefit Plan of the Purchaser and its Subsidiaries Company (each, a “Purchaser Company Benefit Plan”). With respect to each Purchaser Company Benefit Plan, there are no funded benefit obligations for which contributions have not been materially made or properly accrued and there are no material unfunded benefit obligations that have not been accounted for by reserves, or otherwise properly footnoted in accordance with GAAP on the Purchaser Company Financials. Except as set forth on Schedule 3.19(a), neither the Purchaser nor any Subsidiary or The Company is not and has not in the past been a member of a “controlled group” for purposes of Section 414(b), (c), (m) or (o) of the Code other than with the Purchaser or another SubsidiaryCode, nor does the Purchaser or any Subsidiary Company have any Liability with respect to any collectively-bargained for plans, whether or not subject to the provisions of ERISA. No statement, either written or oral, has been made by the Company to any Person with regard to any Company Benefit Plan that was not in accordance with the Company Benefit Plan in any material respect.
(iib) Each Purchaser Company Benefit Plan in all material respects is and has been operated at all times in compliance with all applicable Laws in all material respects, including ERISA and the Code. Each Purchaser Company Benefit Plan which is intended to be “qualified” within the meaning of Section 401(a) of the Code (i) has been determined by the IRS to be so qualified (or is based on a prototype plan which has received a favorable opinion letter) during the period from its adoption to the date of this Agreement and (ii) is funded through a its related trust has been determined to be exempt from taxation under Section 501(a) of the CodeCode or the Company have requested an initial favorable IRS determination of qualification and/or exemption within the period permitted by applicable Law. To the Knowledge of the Purchaser, no No fact exists which could adversely affect the qualified status of such Purchaser Company Benefit Plans or the exempt status of such trusts.
(iiic) With respect to each Purchaser Company Benefit PlanPlan which covers any current or former officer, director, consultant or employee (or beneficiary thereof) of the Company, the Company has provided to Purchaser has made available to the Seller accurate and complete copies, if applicable, of: (i) all Purchaser Company Benefit Plan documents texts and agreements and related trust agreements or annuity Contracts (including any amendments, modifications or supplements thereto); (ii) all summary plan descriptions and material modifications thereto; (iii) the three (3) most recent Forms 5500, if applicable, and annual report, including all schedules thereto; (iv) the most recent annual and periodic accounting of plan assets; (v) the three (3) most recent nondiscrimination testing reports; (vi) the most recent determination letter received from the IRS, if any; (vii) the most recent actuarial valuation; and (viii) all material written communications between the Purchaser or any Subsidiary or any Purchaser Benefit Plan and with any Governmental Authority and relating to a Purchaser Benefit Plan within six (6) years preceding the date of this AgreementAuthority.
(ivd) With respect to each Purchaser Company Benefit Plan: (i) such Purchaser Company Benefit Plan has been administered and enforced in all material respects in accordance with its terms, the Code and ERISA; (ii) neither the Purchaser nor any Subsidiary nor any employee, officer or director thereof that is a no breach of fiduciary (under ERISA) with respect to such Purchaser Benefit Plan duty has breached any of its fiduciary responsibilities, obligations or duties imposed on it by ERISAoccurred; (iii) no Action is pending pending, or to the Company’s Knowledge, threatened in writing (other than routine claims for benefits arising in the ordinary course of administration); (iv) nothing has occurred with respect to any Purchaser Benefit Plan that has subjected the Purchaser or any Subsidiary to any material penalty under no prohibited transaction, as defined in Section 502 406 of ERISA or Section 4975 of the Code, has occurred, excluding transactions effected pursuant to a statutory or administration exemption; and (v) all contributions and premiums due through the Closing Date have been made in all material respects as required under ERISA or have been fully accrued in all material respects on the Purchaser Company Financials.
(ve) No Purchaser Company Benefit Plan is, and neither the Purchaser or any Subsidiary or any of their respective ERISA Affiliates sponsors, maintains, contributes to, is required to contribute to, or otherwise has or could reasonably be expected to have any current or contingent Liability under or with respect to, a “defined benefit plan” (as defined in Section 414(j) of the Code), a “multiemployer plan” (as defined in Section 3(37) of ERISA) or a “multiple employer plan” (as described in Section 413(c) of the Code) or is otherwise subject to Title IV of ERISA or Section 412 of the Code, and the Company has not incurred any Liability or otherwise could have any Liability, contingent or otherwise, under Title IV of ERISA and no condition presently exists that is expected to cause such Liability to be incurred. To the Purchaser’s Knowledge, no Purchaser No Company Benefit Plan will become a multiple employer plan with respect to any Purchaser Entity the Company immediately after the Closing Date. Neither the Purchaser The Company does not currently maintain nor any Subsidiary currently maintains or has ever maintained, or nor is required currently or has ever been required to contribute to or otherwise participate in, a multiple employer welfare arrangement or voluntary employees’ beneficiary association as defined in Section 501(c)(9) of the Code. For purposes of this Agreement, “ERISA Affiliate” means, .
(f) There is no arrangement under any Company Benefit Plan with respect to any Personemployee that would result in the payment of any amount that by operation of Sections 280G or 162(m) of the Code would not be deductible by the Company and no arrangement exists pursuant to which the Company will be required to “gross up” or otherwise compensate any person because of the imposition of any excise tax on a payment to such person.
(g) With respect to each Company Benefit Plan which is a “welfare plan” (as described in Section 3(1) of ERISA): (i) no such plan provides medical or death benefits with respect to current or former employees of the Company beyond their termination of employment (other than coverage mandated by Law, which is paid solely by such employees); and (ii) there are no reserves, assets, surplus or prepaid premiums under any such plan. The Company has complied with the provisions of Section 601 et seq. of ERISA and Section 4980B of the Code.
(h) The consummation of the transactions contemplated by this Agreement and the Ancillary Documents will not: (i) entitle any individual to severance pay, unemployment compensation or other benefits or compensation; (ii) accelerate the time of payment or vesting, or increase the amount of any compensation due, or in respect of, any Person individual; or entity (whether iii) result in or satisfy a condition to the payment of compensation that would, in combination with any other payment, result in an “excess parachute payment” within the meaning of Section 280G of the Code. The Company has not incorporated) that is incurred any Liability for any Tax imposed under common control Chapter 43 of the Code or treated as one employer civil liability under Section 4001(b)(1) of ERISA or Section 414(b), (c), (m502(i) or (ol) of ERISA.
(i) Except to the extent required by Section 4980B of the Code or similar state Law, the Company does not provide health or welfare benefits to any former or retired employee nor is obligated to provide such benefits to any active employee following such employee’s retirement or other termination of employment or service.
(j) All Company Benefit Plans can be terminated at any time as of or after the Closing Date without resulting in any Liability to the Surviving Corporation or Purchaser or their respective Affiliates for any additional contributions, penalties, premiums, fees, fines, excise taxes or any other charges or liabilities.
(k) Each Company Benefit Plan that is subject to Section 409A of the Code (each, a “Section 409A Plan”) as of the Closing Date is indicated as such on Schedule 4.19(k). No equity-based awards have been issued or granted by the Company that are, or are subject to, a Section 409A Plan. Each Section 409A Plan has been administered in compliance, and is in documentary compliance, with the applicable provisions of Section 409A of the Code, the regulations thereunder and other official guidance issued thereunder. The Company has no obligation to any employee or other service provider with respect to any Section 409A Plan that may be subject to any Tax under Section 409A of the Code. No payment to be made under any Section 409A Plan is, or to the Knowledge of the Company will be, subject to the penalties of Section 409A(a)(1) of the Code. There is no Contract or plan to which the Company is a party or by which it is bound to compensate any employee, consultant or director for penalty taxes paid pursuant to Section 409A of the Code.
Appears in 2 contracts
Samples: Merger Agreement (Megalith Financial Acquisition Corp), Merger Agreement (Customers Bancorp, Inc.)
Benefit Plans. (ia) Set forth on Schedule 3.19(a2.25(a) is a true and complete list of each material Benefit Plan of the Purchaser Disclosure Schedule sets forth all compensation and its Subsidiaries benefit plans, programs, agreements, commitments, policies, practices or arrangements of any type (eachincluding, a but not limited to, plans described in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“Purchaser Benefit PlanERISA”)) offered, maintained or contributed to by Seller for the benefit of current or former employees, directors or managers, or with respect to which Seller has or may have any liability, whether direct or indirect, actual or contingent (collectively, the “Benefit Plans”), and includes a written description of all oral Benefit Plans. Seller has provided or made available copies of the documents pursuant to which the Benefit Plans are sponsored, maintained, funded and administered. There are no material compensation or benefit plans, programs, agreements, commitments, policies, practices or arrangements of any type providing benefits to employees, consultants, directors or managers, or with respect to which Seller may have any liability, other than the Benefit Plans.
(b) With respect to each Purchaser Benefit Plan, there are no funded benefit obligations for which contributions have not been materially made or properly accrued and there are no material unfunded benefit obligations that have not been accounted for by reserves, or otherwise properly footnoted in accordance with GAAP on the Purchaser Financials. Except as set forth on Schedule 3.19(a), neither the Purchaser nor any Subsidiary or has in the past been a member of a “controlled group” for purposes of Section 414(b), : (c), (mi) or (o) of the Code other than with the Purchaser or another Subsidiary, nor does the Purchaser or any Subsidiary have any Liability with respect to any collectively-bargained for plans, whether or not subject to the provisions of ERISA.
(ii) Each Purchaser Benefit Plan in all material respects is and has been operated in compliance with all applicable Laws in all material respects, including ERISA and the Code. Each Purchaser Benefit Plan which is if intended to be “qualified” within the meaning of qualify under Section 401(a) of the Code (i) has been determined by the IRS to be Code, such plan so qualified (or qualifies, and its trust is based on a prototype plan which has received a favorable opinion letter) during the period from its adoption to the date of this Agreement and (ii) is funded through a trust exempt from taxation under Section 501(a) of the Code. To the Knowledge of the Purchaser, no fact exists which could adversely affect the qualified status of such Purchaser Benefit Plans or the exempt status of such trusts.
(iii) With respect to each Purchaser Benefit Plan, the Purchaser has made available to the Seller accurate and complete copies, if applicable, of: (i) all Purchaser Benefit Plan documents and agreements and related trust agreements or annuity Contracts (including any amendments, modifications or supplements thereto); (ii) all summary such plan descriptions and material modifications thereto; (iii) the three (3) most recent Forms 5500, if applicable, and annual report, including all schedules thereto; (iv) the most recent annual and periodic accounting of plan assets; (v) the three (3) most recent nondiscrimination testing reports; (vi) the most recent determination letter received from the IRS, if any; (vii) the most recent actuarial valuation; and (viii) all material written communications between the Purchaser or any Subsidiary or any Purchaser Benefit Plan and any Governmental Authority and relating to a Purchaser Benefit Plan within six (6) years preceding the date of this Agreement.
(iv) With respect to each Purchaser Benefit Plan: (i) such Purchaser Benefit Plan has been administered and enforced in all material respects in accordance with its terms, the Code terms and ERISA; (ii) neither the Purchaser nor any Subsidiary nor any employee, officer or director thereof that is a fiduciary (under ERISA) with respect to such Purchaser Benefit Plan has breached any of its fiduciary responsibilities, obligations or duties imposed on it by ERISAall applicable Legal Requirements in all material respects; (iii) no Action is pending or threatened in writing (other than routine claims for benefits arising in the ordinary course breach of administration); (iv) nothing fiduciary duty has occurred with respect to which Seller or any Purchaser Benefit Plan that may be liable or otherwise damaged in any material respect; (iv) no disputes nor any audits or investigations by any Governmental Entity are pending or, to the knowledge of the Seller, threatened; (v) no non-exempt “prohibited transaction” (within the meaning of either Section 4975(c) of the Code or Section 406 of ERISA) has subjected the Purchaser occurred with respect to which Seller or any Subsidiary to Benefit Plan may be liable or otherwise damaged in any material penalty respect; (vi) all contributions, premiums, and other payment obligations have been accrued on the financial statements of Seller, and, to the extent due, have been made on a timely basis, in all material respects; (vii) all contributions or benefit payments made or required to be made under such plan meet the requirements for deductibility under the Code; (viii) Seller has expressly reserved to itself the right to amend, modify or terminate such plan, or any portion of it, at any time without liability to itself; and (ix) no such plan requires Seller to continue to employ or retain any employee, manager or director.
(c) No Benefit Plan (whether or not terminated) is, or has ever been, subject to Section 412 of the Code or Section 302 or Title IV of ERISA. Seller has never been a party to a transaction contemplated under Section 502 4069 of ERISA, and the Transactions are not such a transaction.
(d) With respect to each Benefit Plan which provides welfare benefits of a type described in Section 3(1) of ERISA: (i) no such plan provides medical or death benefits with respect to current or former employees, officers, directors or consultants (or any spouse or dependent thereof) beyond their termination of employment (or in the case of directors or consultants, termination of service), other than coverage mandated by Sections 601-608 of ERISA or Section 4975 and 4980B(f) of the CodeCode or similar state Legal Requirements (collectively, “COBRA”); (ii) each such plan has been administered in compliance with COBRA; (iii) no such plan is or is provided through a “multiple employer welfare arrangement” within the meaning of Section 3(40) of ERISA; (iv) no such plan has reserves, assets, surpluses or prepaid premiums; and (v) all contributions such plan has been operated in compliance with the Patient Protection and premiums due through the Closing Date have been made in all material respects Affordable Care Act, including its employer shared responsibility and market reform provisions, as required under ERISA or have been fully accrued in all material respects on the Purchaser Financialsapplicable.
(ve) No Purchaser The consummation of the Transactions will not (i) entitle any individual to severance pay, (ii) accelerate the time of payment or vesting under any Benefit Plan is, and neither the Purchaser or any Subsidiary or any of their respective ERISA Affiliates sponsors, maintains, contributes to, is required to contribute toPlan, or otherwise has (iii) increase the amount of compensation or could reasonably be expected to have any current or contingent Liability under or with respect to, a “defined benefit plan” (as defined in Section 414(j) of the Code), a “multiemployer plan” (as defined in Section 3(37) of ERISA) or a “multiple employer plan” (as described in Section 413(c) of the Code) or is otherwise subject to Title IV of ERISA or Section 412 of the Code. To the Purchaser’s Knowledge, no Purchaser Benefit Plan will become a multiple employer plan with respect benefits due to any Purchaser Entity immediately after the Closing Date. Neither the Purchaser nor any Subsidiary currently maintains or has ever maintained, or is required currently or has ever been required to contribute to or otherwise participate in, a multiple employer welfare arrangement or voluntary employees’ beneficiary association as defined in Section 501(c)(9) of the Code. For purposes of this Agreement, “ERISA Affiliate” means, with respect to any Person, any Person or entity (whether or not incorporated) that is under common control or treated as one employer under Section 4001(b)(1) of ERISA or Section 414(b), (c), (m) or (o) of the Codeindividual.
Appears in 2 contracts
Samples: Asset Purchase Agreement (BOSTON OMAHA Corp), Asset Purchase Agreement (BOSTON OMAHA Corp)
Benefit Plans. (i) Set forth on Schedule 3.19(a3.02(j) is contains a true list and brief description of all "employee pension benefit plans" (as defined in Section 3(2) of ERISA) (sometimes collectively referred to herein as "UNUM Pension Plans"), "employee welfare benefit plans" (as defined in Section 3(l) of ERISA, hereinafter a "Welfare Plan"), severance, termination, change in control, incentive compensation profit sharing stock option, stock purchase, stock ownership, phantom stock, deferred compensation plans, and other employee fringe benefit plans or arrangements maintained, contributed to or required to be maintained or contributed to by UNUM or its subsidiaries for the benefit of any present or former officers, employees, directors or independent contractors of UNUM or any of its subsidiaries (all the foregoing being herein called "UNUM Benefit Plans"). UNUM has made available to Provident true, complete list and correct copies of (1) each material UNUM Benefit Plan (or, in the case of any unwritten Benefit Plans, descriptions thereof), (2) the Purchaser and its Subsidiaries (each, a “Purchaser Benefit Plan”). With most recent annual report on Form 5500 filed with the Internal Revenue Service with respect to each Purchaser UNUM Benefit Plan, there are no funded benefit obligations for which contributions have not been materially made or properly accrued and there are no material unfunded benefit obligations that have not been accounted for Plan (if any such report was required by reserves, or otherwise properly footnoted in accordance with GAAP on the Purchaser Financials. Except as set forth on Schedule 3.19(a), neither the Purchaser nor any Subsidiary or has in the past been a member of a “controlled group” for purposes of Section 414(bapplicable law), (c), 3) the most recent summary plan description for each UNUM Benefit Plan for which such a summary plan description is required by applicable law and (m4) each currently effective trust agreement and insurance or (o) of the Code other than with the Purchaser or another Subsidiary, nor does the Purchaser or any Subsidiary have any Liability with respect annuity contract relating to any collectively-bargained for plans, whether or not subject to the provisions of ERISAUNUM Benefit Plan.
(ii) Each Purchaser UNUM Benefit Plan in all material respects is and has been operated administered in accordance with its terms except for any failure so to administer as, individually or in the aggregate, is not reasonably likely to have a material adverse effect on UNUM. UNUM, its subsidiaries and all the UNUM Benefit Plans are in compliance with all the applicable Laws in all material respectsprovisions of ERISA, including ERISA the Code and other applicable laws as to the Code. Each Purchaser UNUM Benefit Plan which is intended Plans except for any failure so to be “qualified” within in compliance as, individually or in the meaning of Section 401(a) of the Code (i) has been determined by the IRS aggregate, is not reasonably likely to be so qualified (or is based have a material adverse effect on a prototype plan which has received a favorable opinion letter) during the period from its adoption to the date of this Agreement and (ii) is funded through a trust exempt from taxation under Section 501(a) of the Code. To the Knowledge of the Purchaser, no fact exists which could adversely affect the qualified status of such Purchaser Benefit Plans or the exempt status of such trustsUNUM.
(iii) With respect to each Purchaser the UNUM Benefit PlanPlans, individually and in the aggregate, no event has occurred and, to the knowledge of UNUM, there exists no condition or set of circumstances, in connection with which UNUM or any of its subsidiaries could be subject to any liability that is reasonably likely to have a material adverse effect on UNUM under ERISA, the Purchaser Code or any other applicable law.
(iv) Each UNUM Pension Plan that is intended to comply with the provisions of Section 401(a) of the Code has been the subject of a determination letter from the Internal Revenue Service to the effect that such UNUM Pension Plan is qualified and exempt from Federal income taxes under Sections 401(a) and 501(a), respectively, of the Code; no such determination letter has been revoked, and, to the knowledge of UNUM, revocation has not been threatened; and no amendment to such UNUM Pension Plan as to which the remedial amendment period has expired would adversely affect its qualification or, materially increase its cost. UNUM has made available to the Seller accurate and complete copies, if applicable, of: (i) all Purchaser Benefit Plan documents and agreements and related trust agreements or annuity Contracts (including any amendments, modifications or supplements thereto); (ii) all summary plan descriptions and material modifications thereto; (iii) the three (3) most recent Forms 5500, if applicable, and annual report, including all schedules thereto; (iv) the most recent annual and periodic accounting Provident a copy of plan assets; (v) the three (3) most recent nondiscrimination testing reports; (vi) the most recent determination letter received from the IRS, if any; (vii) the most recent actuarial valuation; and (viii) all material written communications between the Purchaser or any Subsidiary or any Purchaser Benefit Plan and any Governmental Authority and relating to a Purchaser Benefit Plan within six (6) years preceding the date of this Agreement.
(iv) With with respect to each Purchaser Benefit Plan: (i) UNUM Pension Plan for which such Purchaser Benefit Plan a letter has been administered and enforced in all material respects in accordance with its termsissued, the Code and ERISA; (ii) neither the Purchaser nor any Subsidiary nor any employee, officer or director thereof that is a fiduciary (under ERISA) with respect to such Purchaser Benefit Plan has breached any of its fiduciary responsibilities, obligations or duties imposed on it by ERISA; (iii) no Action is pending or threatened in writing (other than routine claims for benefits arising in the ordinary course of administration); (iv) nothing has occurred with respect to any Purchaser Benefit Plan that has subjected the Purchaser or any Subsidiary to any material penalty under Section 502 of ERISA or Section 4975 of the Code; and (v) all contributions and premiums due through the Closing Date have been made in all material respects as required under ERISA or have been fully accrued in all material respects on the Purchaser Financials.
(v) No Purchaser Benefit Plan is, and neither the Purchaser or any Subsidiary or any of their respective ERISA Affiliates sponsors, maintains, contributes to, is required to contribute to, or otherwise has or could reasonably be expected to have any current or contingent Liability under or with respect to, a “defined benefit plan” (as defined in Section 414(j) of the Code), a “multiemployer plan” (as defined in Section 3(37) of ERISA) or a “multiple employer plan” (as described in Section 413(c) of the Code) or is otherwise subject to Title IV of ERISA or Section 412 of the Code. To the Purchaser’s Knowledge, no Purchaser Benefit Plan will become a multiple employer plan with respect to any Purchaser Entity immediately after the Closing Date. Neither the Purchaser nor any Subsidiary currently maintains or has ever maintained, or is required currently or has ever been required to contribute to or otherwise participate in, a multiple employer welfare arrangement or voluntary employees’ beneficiary association as defined in Section 501(c)(9) of the Code. For purposes of this Agreement, “ERISA Affiliate” means, with respect to any Person, any Person or entity (whether or not incorporated) that is under common control or treated as one employer under Section 4001(b)(1) of ERISA or Section 414(b), (c), (m) or (o) of the Code.as
Appears in 2 contracts
Samples: Merger Agreement (Unum Corp), Merger Agreement (Provident Companies Inc /De/)
Benefit Plans. (ia) Set forth on Schedule 3.19(a3.19
(a) is hereto lists all existing employee benefit plans (as defined in Section 3 (3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")), in which Employees or former employees of Superior currently participate (the "Plans"). Seller has provided or will provide to Purchaser a true and complete list summary description of each Plan.
(b) Each Plan is and has been in substantial compliance, in form and operation, in all material Benefit Plan of the Purchaser respects with all applicable laws and its Subsidiaries (each, a “Purchaser Benefit Plan”). With respect to each Purchaser Benefit Plan, there are no funded benefit obligations for which contributions have not has been materially made or properly accrued and there are no administered in all material unfunded benefit obligations that have not been accounted for by reserves, or otherwise properly footnoted respects in accordance with GAAP on its terms. Superior has not incurred any liability with respect to a Plan including, without limitation, under ERISA (including, without limitation, Title I or Title IV of ERISA, other than liability for premiums due to the Purchaser Financials. Except as set forth on Schedule 3.19(aPension Benefit Guaranty Corporation ("PBGC")), neither the Purchaser nor any Subsidiary Code or other applicable law, which has not been satisfied in full, and, to the knowledge of the respective managements of Seller and Superior, no event has occurred, and there exists no known condition or set of circumstances, which could result in the past been imposition of any liability with respect to a member Plan, including, without limitation, under ERISA (including, without limitation, Title I or Title IV of a “controlled group” for purposes of Section 414(bERISA), (c), (m) the Code or (o) other applicable law with respect to the Plan. To the knowledge of the Code other than with the Purchaser or another Subsidiaryrespective managements of Superior and Seller, nor does the Purchaser or any Subsidiary have any Liability no event has occurred and no condition exists with respect to any collectively-bargained for plans, whether or not subject to the provisions of ERISA.
(ii) Each Purchaser Benefit Plan in all material respects is and has been operated in compliance with all applicable Laws in all material respects, including ERISA and the Code. Each Purchaser Benefit Plan which is intended likely to be “qualified” subject Purchaser, directly or indirectly (through an indemnification agreement or otherwise), to any material liability (including, without limitation, liability for taxes, breach of fiduciary duty, or for a "prohibited transaction" within the meaning of Section 406 of ERISA or Section 4975 of the Code). There is no action, suit, or claim (other than routine claims for benefits in the ordinary course) with respect to any Plan pending or threatened which is reasonably likely to have a Material Adverse Effect. No Plan is currently under investigation or audit by any governmental agency and, to the knowledge of Seller's management, no such investigation or audit is contemplated or under consideration. Each Plan intended to be a qualified plan under Section 401(a) of the Code (iis so qualified and a favorable determination letter as to qualification under Section 401(a) of the Code has been issued and the related trust has been determined by the IRS to be so qualified (or is based on a prototype plan which has received a favorable opinion letter) during the period from its adoption to the date of this Agreement and (ii) is funded through a trust exempt from taxation under Section 501(a) of the Code. To the Knowledge of the Purchaser, no fact exists which could adversely affect the qualified status of such Purchaser Benefit Plans or the exempt status of such trusts.
(iiic) With respect Superior has no outstanding commitments to each Purchaser Benefit Planprovide or to cause to be provided any severance or other post-employment benefit, the Purchaser salary continuation, termination, disability, death, retirement, health or medical benefit or similar benefit to any person (including, without limitation, any Employee or former employee) that either has made available to the Seller accurate and complete copies, if applicable, of: (i) all Purchaser Benefit Plan documents and agreements and related trust agreements or annuity Contracts (including any amendments, modifications or supplements thereto); (ii) all summary plan descriptions and material modifications thereto; (iii) the three (3) most recent Forms 5500, if applicable, and annual report, including all schedules thereto; (iv) the most recent annual and periodic accounting of plan assets; (v) the three (3) most recent nondiscrimination testing reports; (vi) the most recent determination letter received from the IRS, if any; (vii) the most recent actuarial valuation; and (viii) all material written communications between the Purchaser or any Subsidiary or any Purchaser Benefit Plan and any Governmental Authority and relating to a Purchaser Benefit Plan within six (6) years preceding the date of this Agreement.
(iv) With respect to each Purchaser Benefit Plan: (i) such Purchaser Benefit Plan has not been administered and enforced in all material respects in accordance with its terms, the Code and ERISA; (ii) neither the Purchaser nor any Subsidiary nor any employee, officer or director thereof that is a fiduciary (under ERISA) with respect to such Purchaser Benefit Plan has breached any of its fiduciary responsibilities, obligations or duties imposed on it by ERISA; (iii) no Action is pending or threatened in writing (other than routine claims for benefits arising reflected in the ordinary course of administrationSuperior Financial Statements or is not included in any Plan disclosed in Schedule 3.19(a); (iv) nothing has occurred . All contributions and premium payments required to have been made or accrued under or with respect to any Purchaser Benefit Plan that has subjected have been timely made or accrued. Except as set forth in Schedules 3.19(c) and 5.4(e), the Purchaser or any Subsidiary consummation of the transactions contemplated hereby will not give rise to any material penalty under Section 502 of ERISA right to severance, separation or Section 4975 of the Code; and (v) all contributions and premiums due through the Closing Date have been made in all material respects as required under ERISA similar pay or have been fully accrued in all material respects on the Purchaser Financialsbenefits.
(vd) No Purchaser Benefit Plan isSuperior has never maintained, and neither the Purchaser adopted or any Subsidiary established, contributed or any of their respective ERISA Affiliates sponsors, maintains, contributes to, is been required to contribute to, or otherwise has participated or could reasonably be expected been required to have any current or contingent Liability under or with respect toparticipate in, a “defined benefit "multiemployer plan” " (as defined in Section 414(j3(37) of the CodeERISA), . No amount is due as owing from Superior on account of a “"multiemployer plan” " (as defined in Section 3(37) of ERISA) or a “multiple employer plan” (as described in Section 413(c) on account of the Code) or is otherwise subject to Title IV of ERISA or Section 412 of the Code. To the Purchaser’s Knowledge, no Purchaser Benefit Plan will become a multiple employer plan with respect to any Purchaser Entity immediately after the Closing Date. Neither the Purchaser nor any Subsidiary currently maintains or has ever maintained, or is required currently or has ever been required to contribute to or otherwise participate in, a multiple employer welfare arrangement or voluntary employees’ beneficiary association as defined in Section 501(c)(9) of the Code. For purposes of this Agreement, “ERISA Affiliate” means, with respect to any Person, any Person or entity (whether or not incorporated) that is under common control or treated as one employer under Section 4001(b)(1) of ERISA or Section 414(b), (c), (m) or (o) of the Codewithdrawal therefrom.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Superior Financial Corp /Ar/), Stock Purchase Agreement (Superior Financial Corp /Ar/)
Benefit Plans. (ia) Set Section 3.11(a) of the Seller Disclosure Schedule sets forth on Schedule 3.19(a) is a true and complete list of each material Benefit Plan of that covers any Business Employee who provides services primarily to the Purchaser and its Subsidiaries (each, a “Purchaser Benefit Plan”)Business. With respect to each Purchaser Benefit Plan, there are no funded benefit obligations for which contributions have not been materially Seller has made or properly accrued available to Purchaser complete and there are no material unfunded benefit obligations that have not been accounted for by reserves, or otherwise properly footnoted in accordance with GAAP on the Purchaser Financials. Except as set forth on Schedule 3.19(a), neither the Purchaser nor any Subsidiary or has in the past been a member of a “controlled group” for purposes of Section 414(b), (c), (m) or (o) correct copies of the Code other than with current plan document (or a written description of material terms if no plan document exists) and, if required by applicable Law, the Purchaser or another Subsidiary, nor does the Purchaser or any Subsidiary have any Liability with respect to any collectively-bargained for plans, whether or not subject to the provisions of ERISA.
(ii) Benefit Plan’s summary plan description. Each Purchaser Benefit Plan and, if applicable, related trust has been established, maintained, funded and administered in all material respects is and has been operated in compliance with all applicable Laws complies in all material respects, with respect to any Business Employee, with its terms and all applicable Laws (including ERISA and and, the Code). Each Purchaser Benefit Plan which that is intended to be “qualified” within the meaning of qualified under Section 401(a) of the Code (ia “Qualified Benefit Plan”) has been determined by the IRS to be so qualified (or is based on a prototype plan which has received a favorable determination letter from the Internal Revenue Service, or with respect to a prototype or volume submitter plan, can rely on an opinion letter) during letter from the period from its adoption Internal Revenue Service to the date prototype or volume submitter plan sponsor, in each case a copy of this Agreement which has been made available to Purchaser, to the effect that such Qualified Benefit Plan is so qualified and (ii) is funded through a that the plan and the trust related thereto are exempt from taxation federal income Taxes under Sections 401(a) and 501(a), respectively, of the Code, and nothing has occurred that could reasonably be expected to cause the revocation of such determination letter from the Internal Revenue Service or the unavailability of reliance on such opinion letter from the Internal Revenue Service, as applicable or otherwise adversely affect the qualification of such Benefit Plan. With respect to any Benefit Plan and any Business Employee, to the knowledge of Seller, no event has occurred or is reasonably expected to occur that has resulted in or would subject Seller to a Tax under Section 501(a4971 of the Code. No event has occurred that would subject the Transferred Assets to a lien under Section 430(k) of the Code. To the Knowledge of the PurchaserAll contributions, no fact exists which could adversely affect the qualified status of such Purchaser Benefit Plans or the exempt status of such trusts.
(iii) With respect to each Purchaser Benefit Plandistributions, the Purchaser has made available to the Seller accurate reimbursements and complete copies, if applicable, of: (i) all Purchaser Benefit Plan documents and agreements and related trust agreements or annuity Contracts (including any amendments, modifications or supplements thereto); (ii) all summary plan descriptions and material modifications thereto; (iii) the three (3) most recent Forms 5500, if applicable, and annual report, including all schedules thereto; (iv) the most recent annual and periodic accounting of plan assets; (v) the three (3) most recent nondiscrimination testing reports; (vi) the most recent determination letter received from the IRS, if any; (vii) the most recent actuarial valuation; and (viii) all material written communications between the Purchaser or any Subsidiary or any Purchaser Benefit Plan and any Governmental Authority and relating to a Purchaser Benefit Plan within six (6) years preceding the date of this Agreement.
(iv) With respect to each Purchaser Benefit Plan: (i) such Purchaser Benefit Plan has been administered and enforced in all material respects in accordance with its terms, the Code and ERISA; (ii) neither the Purchaser nor any Subsidiary nor any employee, officer or director thereof that is a fiduciary (under ERISA) with respect to such Purchaser Benefit Plan has breached any of its fiduciary responsibilities, obligations or duties imposed on it by ERISA; (iii) no Action is pending or threatened in writing (other than routine claims for benefits arising in the ordinary course of administration); (iv) nothing has occurred premium payments due with respect to any Purchaser Business Employee under or pursuant to each Benefit Plan that has subjected prior to the Purchaser or any Subsidiary to any material penalty under Section 502 of ERISA or Section 4975 Closing will have been timely made as of the Code; and (v) all contributions and premiums due through the Closing Date have been made in all material respects as required under ERISA or have been fully accrued in all material respects on the Purchaser FinancialsClosing.
(vb) No Purchaser Benefit Plan is, and neither the Purchaser or any Subsidiary or Seller nor any of their respective ERISA its Affiliates sponsors, maintains, contributes to, is required to contribute to, or otherwise has or could reasonably be expected to have any current or contingent Liability liability or obligation under or with respect to, : (i) a “defined benefit plan” (as defined in plan that is or subject to the minimum funding standards of Section 414(j) 302 of ERISA or Section 412 of the Code), ; or (ii) a “multiemployer multi-employer plan” (as defined in Section 3(37) of ERISA). Neither Seller nor any of its Affiliates has: (A) withdrawn from any pension plan under circumstances resulting (or expected to result) in liability; or (B) engaged in any transaction which would give rise to a liability under Section 4069 or Section 4212(c) of ERISA.
(c) Except as set forth on Section 3.11(c) of the Seller Disclosure Schedule attached hereto and other than as required under Section 4980B of the Code or other similar applicable Law and for which the beneficiary pays the full premium cost, no Benefit Plan provides for any Business Employee benefits or coverage in the nature of health, life or disability insurance following retirement or other termination of employment or service (other than death benefits when termination occurs upon death).
(d) Except as set forth on Section 3.11(d) attached hereto, no Benefit Plan exists that could: (i) result in the payment to any Business Employee, director or consultant of the Business of any money or other property; or (ii) accelerate the payment, vesting of or provide any additional rights or benefits (including funding of compensation or benefits through a trust or otherwise) to any Business Employee, director or consultant of the Business, in each case, as a result of the execution of this Agreement or the consummation of the transactions contemplated hereby.
(e) The execution of this Agreement and the consummation of the transactions contemplated hereby, will not (alone or in conjunction with any other event) (i) result in any material payment becoming due to any Business Employee or Former Business Employee under any Benefit Plan or otherwise, (ii) materially increase any benefits or compensation otherwise payable to any Business Employee or Former Business Employee under any Benefit Plan or otherwise, or (iii) result in the acceleration of time of payment or vesting of, or require the material funding of, any such benefits or compensation.
(f) Each Benefit Plan that is a “multiple employer nonqualified deferred compensation plan” (within the meaning of Section 409A of the Code) complies with respect to the Business Employees in all material respects with the requirements of Section 409A of the Code and the regulations thereunder by its terms and has been operated with respect to the Business Employees in all material respects in accordance with such requirements such that no material additional Taxes are due with respect to any such arrangement under Section 409A of the Code.
(g) The Company is not a party to, nor is otherwise obligated under, any plan, policy, agreement or arrangement that provides for the gross-up or reimbursement of Taxes imposed under Section 409A or 4999 of the Code (or any corresponding provisions of state, local or foreign Taxes). No amount or other entitlement that could be received as described a result of the transactions contemplated hereby (alone or in conjunction with any other event, including any termination of employment) by any “disqualified individual” (as defined in Section 413(c280G(c) of the Code) or is otherwise subject to Title IV of ERISA or Section 412 of the Code. To the Purchaser’s Knowledge, no Purchaser Benefit Plan will become a multiple employer plan with respect to any Purchaser Entity immediately after the Closing Date. Neither the Purchaser nor any Subsidiary currently maintains or has ever maintained, or is required currently or has ever been required to contribute to or otherwise participate in, a multiple employer welfare arrangement or voluntary employees’ beneficiary association Company will constitute an “excess parachute payment” (as defined in Section 501(c)(9280G(b)(1) of the Code. For purposes of this Agreement, “ERISA Affiliate” means, with respect to any Person, any Person or entity (whether or not incorporated) that is under common control or treated as one employer under Section 4001(b)(1) of ERISA or Section 414(b), (c), (m) or (o) of the Code.
Appears in 2 contracts
Samples: Unit Purchase Agreement (Yelp Inc), Unit Purchase Agreement (GrubHub Inc.)
Benefit Plans. (i) Set forth on Schedule 3.19(a) is a true and complete list of each material Benefit Plan of the Purchaser and its Subsidiaries (each, a “Purchaser Benefit Plan”). With respect to each Purchaser Benefit Plan, there are no funded benefit obligations for which contributions have not been materially made or properly accrued and there are no material unfunded benefit obligations that have not been accounted for by reserves, or otherwise properly footnoted in accordance with GAAP on the Purchaser Financials. Except as set forth on Schedule 3.19(a), neither the Purchaser nor any Subsidiary or has in the past been a member of a “controlled group” for purposes of Section 414(b), (c), (m) or (o3.1(j)(i) of the Code other than with the Purchaser or another Subsidiary, nor does the Purchaser or any Subsidiary have any Liability with respect to any collectively-bargained for plans, whether or not subject to the provisions Company Disclosure Letter contains a list of ERISAall material Company Employee Benefit Plans.
(ii) Each Purchaser With respect to each material Company Employee Benefit Plan, the Company has made available to Parent a true and correct copy of such Plan, including any and all amendments thereto.
(iii) Section 3.1(j)(iii) of the Company Disclosure Letter identifies each Company Employee Benefit Plan in all material respects is and has been operated in compliance with all applicable Laws in all material respects, including ERISA and the Code. Each Purchaser Benefit Plan which that is intended to be a “qualifiedqualified plan” within the meaning of pursuant to Section 401(a) of the Code (i) “Company Qualified Plans”). The IRS has been determined by issued a favorable determination letter with respect to each Company Qualified Plan and the IRS to be so qualified related trust (or is based on a prototype plan which has received a favorable opinion letterletter upon which the Company or its applicable Subsidiary is entitled to rely, in the case of a prototype or volume submitter document for which a separate determination letter is not required) during the period from its adoption that has not been revoked, and there are no circumstances, and no events have occurred, that could reasonably be expected to the date of this Agreement and (ii) is funded through a trust exempt from taxation under Section 501(a) of the Code. To the Knowledge of the Purchaser, no fact exists which could adversely affect the qualified status of such Purchaser Benefit Plans any Company Qualified Plan or the exempt status of such trusts.
(iii) With respect to each Purchaser Benefit Plan, the Purchaser has made available to the Seller accurate and complete copies, if applicable, of: (i) all Purchaser related trust. No Company Employee Benefit Plan documents and agreements and related is or is required to be funded through a trust agreements or annuity Contracts (including any amendments, modifications or supplements thereto); (iithat is intended to meet the requirements of Section 501(c)(9) all summary plan descriptions and material modifications thereto; (iii) of the three (3) most recent Forms 5500, if applicable, and annual report, including all schedules thereto; (iv) the most recent annual and periodic accounting of plan assets; (v) the three (3) most recent nondiscrimination testing reports; (vi) the most recent determination letter received from the IRS, if any; (vii) the most recent actuarial valuation; and (viii) all material written communications between the Purchaser or any Subsidiary or any Purchaser Benefit Plan and any Governmental Authority and relating to a Purchaser Benefit Plan within six (6) years preceding the date of this AgreementCode.
(iv) With respect to each Purchaser Benefit Plan: (i) such Purchaser Company Employee Benefit Plan has been administered and enforced in all material respects in accordance with its terms, the Code and ERISA; (ii) neither the Purchaser nor any Subsidiary nor any employee, officer or director thereof that is not a fiduciary (under ERISA) with respect Non-US Company Plan, all contributions, premium payments, and other payments, expenses and reimbursements required to such Purchaser Benefit Plan has breached be made by the Company or any of its fiduciary responsibilitiesSubsidiaries by applicable Law or regulation or by any plan document or other contractual undertaking, obligations have been timely made (except where the Company’s failure to timely make such contributions or duties imposed on it by ERISA; (iii) no Action is pending or threatened pay such premiums would not result in writing (other than routine claims for benefits arising in the ordinary course of administration); (iv) nothing has occurred with respect to any Purchaser Benefit Plan that has subjected the Purchaser or any Subsidiary to any material liability, penalty under Section 502 of ERISA or Section 4975 of the Code; and (v) all contributions and premiums due through the Closing Date have been made in all material respects as required under ERISA tax), or have been fully properly accrued in all material respects and accurately reflected on the Purchaser FinancialsCompany’s financial statements.
(v) No Purchaser With respect to each employee benefit plan, program, policy, practice, agreement, or other arrangement maintained and/or operated by a Governmental Entity and subject to the applicable Laws of any jurisdiction outside the United States and Canada, all contributions, premium payments, and other payments, expenses and reimbursements required to be made by the Company or any of its Subsidiaries by applicable Law or regulation or by any plan document or other contractual undertaking, have been timely made (except where the Company’s failure to timely make such contributions or pay such premiums would not result in any material liability, penalty or tax), or have been properly accrued and accurately reflected on the Company’s financial statements.
(vi) Each Company Employee Benefit Plan ishas been established, maintained and administered in compliance, in all material respects, with all applicable provisions of ERISA, the Code, all other Laws and regulations applicable to such Company Employee Benefit Plan, and neither the Purchaser terms applicable to such Company Employee Benefit Plan. There is not now, nor do any circumstances exist that could give rise to, any requirement for the posting of security by the Company or any Subsidiary of its Subsidiaries with respect to a Company Employee Benefit Plan or the imposition of any lien on the assets of the Company or any of its Subsidiaries under ERISA, the Code or other applicable Law.
(vii) Neither the Company, nor any of its Subsidiaries, nor any of their respective ERISA Affiliates sponsorshas ever maintained, maintains, contributes sponsored or contributed to, is required or had an obligation to maintain, sponsor or contribute to, or otherwise has or could reasonably be expected to have had any current actual or contingent Liability under liability or obligation with respect to, and no Company Employee Benefit Plan currently is, (i) a “defined benefit plan” (as defined in Section 414(j) of the Code), a “multiemployer plan” (as defined in Section 3(373(35) of ERISA, (ii) or a “multiple employer plan” (as described in Section 413(c) of the Code) or is otherwise pension plan subject to the funding standards of Section 302 or Title IV of ERISA or Section 412 of the Code. To the Purchaser’s Knowledge, no Purchaser Benefit Plan will become (iii) a multiple employer plan with respect to any Purchaser Entity immediately after the Closing Date. Neither the Purchaser nor any Subsidiary currently maintains or has ever maintained, or is required currently or has ever been required to contribute to or otherwise participate in, a multiple employer welfare arrangement or voluntary employees’ beneficiary association “multiemployer plan” as defined in Section 501(c)(93(37) of ERISA or Section 414(f) of the Code or (iv) a “multiple employer plan” within the meaning of Section 210(a) of ERISA or Section 413(c) of the Code. For purposes Neither the Company nor any of its ERISA Affiliates has any actual or contingent liability under Title IV of ERISA, and no condition exists, other than as a result of the transactions contemplated by this Agreement, that presents a risk to the Company or any of its ERISA Affiliates of incurring any such liability.
(viii) With respect to any Company Employee Benefit Plan that is maintained for the benefit of employees, consultants or directors outside of the United States (each such Company Employee Benefit Plan, a “Non-US Company Plan”), (A) if intended to qualify for special tax treatment, the Non-US Company Plan meets the requirements for such treatment in all material respects, (B) the financial statements of the Company and its Subsidiaries accurately reflect in all material respects the Non-US Company Plan liabilities and accruals for contributions required to be paid to the Non-US Company Plans, in accordance with GAAP, and (C) there have not occurred, nor are there continuing, any transactions or breaches of fiduciary duty under any Law or regulation in connection with a Non-US Company Plan which could have a Material Adverse Effect on (1) any Non-US Company Plan or (2) the condition of the Company or any of its Subsidiaries.
(ix) Neither the Company nor any of its Subsidiaries, nor any of their respective ERISA AffiliateAffiliates, has engaged in any transaction described in Section 4069 or Section 4204 or 4212(c) of ERISA.
(x) Section 3.1(j)(x) of the Company Disclosure Letter sets forth each Company Employee Benefit Plan (or other arrangement) under which the execution and delivery of this Agreement or the consummation of the transactions contemplated hereby could (either alone or in connection with any other event, condition or circumstance): (i) result in, cause the accelerated vesting, funding or delivery of, or increase the amount or value of, any payment or benefit to any current or former employee, officer, consultant or director of the Company or any of its Subsidiaries, (ii) result in the payment or provision (whether in connection with any termination of employment or otherwise) of any “excess parachute payment” means, within the meaning of Section 280G of the Code with respect to any Personcurrent or former employee, consultant or contractor of the Company or any Person of its Subsidiaries; (iii) limit the right of the Company or entity (whether any of its Subsidiaries to amend, merge or not incorporated) that is under common control terminate any Company Employee Benefit Plan or treated as one employer under Section 4001(b)(1) of ERISA or Section 414(b), (c), (m) trust; or (oiv) give rise to the payment of any amount that would not be deductible by reason of Section 162(m) of the Code.
(xi) No Company Employee Benefit Plan provides for a tax gross-up or any similar payments or benefits with respect to the excise tax imposed under Section 4999 of the Code or the tax or penalties imposed under Section 409A of the Code.
(xii) To the Company’s knowledge, none of the Company, its Subsidiaries nor any other Person, including any fiduciary, has engaged in any “prohibited transaction” (as defined in Section 4975 of the Code or Section 406 of ERISA), which would reasonably be expected to subject any of the Company Employee Benefit Plans or their related trusts, the Company, any of its Subsidiaries or any Person that the Company or any of its Subsidiaries has an obligation to indemnify, to any material tax or penalty imposed under Section 4975 of the Code or Section 502 of ERISA.
(xiii) There are no pending or, to the Company’s knowledge, threatened, claims (other than routine claims for benefits in the ordinary course), lawsuits or arbitrations which have been asserted or instituted by any current or former employee or consultant of the Company or its Subsidiaries, and to the Company’s knowledge, no set of circumstances exists which may reasonably give rise to a claim or lawsuit against the Company Employee Benefit Plans, any fiduciaries thereof with respect to their duties to the Company Employee Benefit Plans or the assets of any of the trusts under any of the Company Employee Benefit Plans which could reasonably be expected to result in any material liability of the Company or any of its Subsidiaries. There are no outstanding assessments, penalties, fines, liens, charges, surcharges, or other amounts due or owing pursuant to any workplace safety and insurance legislation, and neither the Company nor any of its Subsidiaries have been reassessed in any material respect under such legislation during the past three (3) years and no audit of the Company or any of its Subsidiaries is currently being performed pursuant to any applicable workplace safety and insurance legislation. There are no pending claims or, to the knowledge of the Company, potential claims which may materially adversely affect the Company’s accident cost experience in respect of the business of the Company or any Subsidiary of the Company.
(xiv) Neither the Company nor any of its Subsidiaries has any liability for life insurance, death or medical benefits to current or former employees or beneficiaries or dependents thereof, except for health continuation coverage as required by Section 4980B of the Code or Part 6 of Title I of ERISA or other applicable Law.
(xv) Each Company Employee Benefit Plan that is a “nonqualified deferred compensation plan” (within the meaning of Section 409A(d)(1) of the Code) subject to Section 409A of the Code has been operated and administered, in all material respects, in compliance with Section 409A of the Code and any guidance issued by the Department of Treasury or the IRS thereunder, to the extent applicable to such plan.
(xvi) All Company Options were granted at an exercise price at least equal to the fair market value (within the meaning of Section 409A of the Code and the regulations promulgated thereunder) of a Company Share on the date of grant and no Company Option has been extended or amended, and no Company Option has been repriced, in each case since its original date of grant.
Appears in 2 contracts
Samples: Arrangement Agreement (Nabors Industries LTD), Arrangement Agreement (Tesco Corp)
Benefit Plans. (ia) Set forth on Schedule 3.19(a) is a true and complete list of each material Benefit Plan of Neither the Purchaser and its Subsidiaries (each, a “Purchaser Benefit Plan”). With respect to each Purchaser Benefit Plan, there are no funded benefit obligations for which contributions have not been materially made or properly accrued and there are no material unfunded benefit obligations that have not been accounted for by reserves, or otherwise properly footnoted in accordance with GAAP on the Purchaser Financials. Except as set forth on Schedule 3.19(a), neither the Purchaser Company nor any Subsidiary or has in the past been a member of a “controlled group” for purposes of Section 414(b), (c), (m) or (o) of the Code other than with the Purchaser or another Subsidiary, nor does the Purchaser or any Subsidiary have any Liability with respect to any collectively-bargained for plans, whether or not subject to the provisions of ERISA.
(ii) Each Purchaser Benefit Plan in all material respects is and has been operated in compliance with all applicable Laws in all material respects, including ERISA and the Code. Each Purchaser Benefit Plan which is intended to be “qualified” within the meaning of Section 401(a) of the Code (i) has been determined by the IRS to be so qualified (or is based on a prototype plan which has received a favorable opinion letter) during the period from its adoption to the date of this Agreement and (ii) is funded through a trust exempt from taxation under Section 501(a) of the Code. To the Knowledge of the Purchaser, no fact exists which could adversely affect the qualified status of such Purchaser Benefit Plans or the exempt status of such trusts.
(iii) With respect to each Purchaser Benefit Plan, the Purchaser has made available to the Seller accurate and complete copies, if applicable, of: (i) all Purchaser Benefit Plan documents and agreements and related trust agreements or annuity Contracts (including any amendments, modifications or supplements thereto); (ii) all summary plan descriptions and material modifications thereto; (iii) the three (3) most recent Forms 5500, if applicable, and annual report, including all schedules thereto; (iv) the most recent annual and periodic accounting of plan assets; (v) the three (3) most recent nondiscrimination testing reports; (vi) the most recent determination letter received from the IRS, if any; (vii) the most recent actuarial valuation; and (viii) all material written communications between the Purchaser or any Subsidiary or any Purchaser Benefit Plan and any Governmental Authority and relating to a Purchaser Benefit Plan within six (6) years preceding the date of this Agreement.
(iv) With respect to each Purchaser Benefit Plan: (i) such Purchaser Benefit Plan has been administered and enforced in all material respects in accordance with its terms, the Code and ERISA; (ii) neither the Purchaser nor any Subsidiary nor any employee, officer or director thereof that is a fiduciary (under ERISA) with respect to such Purchaser Benefit Plan has breached any of its fiduciary responsibilities, obligations or duties imposed on it by ERISA; (iii) no Action is pending or threatened in writing (other than routine claims for benefits arising in the ordinary course of administration); (iv) nothing has occurred with respect to any Purchaser Benefit Plan that has subjected the Purchaser or any Subsidiary to any material penalty under Section 502 of ERISA or Section 4975 of the Code; and (v) all contributions and premiums due through the Closing Date have been made in all material respects as required under ERISA or have been fully accrued in all material respects on the Purchaser Financials.
(v) No Purchaser Benefit Plan is, and neither the Purchaser or any Subsidiary or any of their respective ERISA Affiliates sponsors, maintains, contributes to, is or has, within the past five years, sponsored, maintained, or contributed to or been required to contribute to, any "employee pension benefit plan" ("Pension Plan"), as such term is defined in Section 3(2) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), including, solely for the purpose of this subsection, a plan excluded from coverage by Section 4(b)(5) of ERISA. Each such Pension Plan presently maintained by the Company or otherwise any Subsidiary is, in all material respects, in compliance with applicable provisions of ERISA, the Code, and other applicable law and the Company or such Subsidiary has performed all of its obligations under such Pension Plan except for such obligations that could not reasonably be expected to have a Company Material Adverse Effect.
(b) Neither the Company nor any Subsidiary sponsors, maintains, contributes to, or has, within the past five years, sponsored, maintained, or contributed to or been required to contribute to, any Pension Plan that is subject to Title IV of ERISA.
(c) Neither the Company nor any Subsidiary sponsors, maintains, or contributes to any "employee welfare benefit plan" ("Welfare Plan"), as such term is defined in Section 3(1) of ERISA, whether insured or otherwise, and any such Welfare Plan presently maintained by the Company or any Subsidiary is, in all material respects, in compliance with the provisions of ERISA, the Code, and all other applicable laws, including, but not limited to, Section 4980B of the Code and the regulations thereunder, and Part 6 of Title I of ERISA. Neither the Company nor any Subsidiary has established or contributed to any "voluntary employees' beneficiary association" within the meaning of Section 501(c)(9) of the Code.
(d) Neither the Company nor any Subsidiary currently maintains or contributes to any oral or written bonus, profit-sharing, compensation (incentive or otherwise), commission, stock option, or other stock-based compensation, retirement, severance, change of control, vacation, sick or parental leave, dependent care, deferred compensation, cafeteria, disability, hospitalization, medical, death, retiree, insurance, or other benefit or welfare or other similar plan, policy, agreement, trust, fund, or arrangement providing for the remuneration or benefit of all or any employees, directors or any other person, that is neither a Pension Plan nor a Welfare Plan (collectively, the "Compensation Plans").
(e) With respect to the Pension Plans, Welfare Plans or Compensation Plans, no event has occurred and, to the knowledge of the Company, there exists no condition or set of circumstances, in connection with which the Company or any of its Subsidiaries could be subject to any liability under the terms of such Plans (other than the payment of benefits thereunder), ERISA, the Code or any other applicable Law which could reasonably be expected to have any current or contingent Liability under or a Company Material Adverse Effect.
(f) The IRS has issued favorable determination letters with respect toto all Company and Subsidiary Pension Plans that are intended to be qualified under Section 401(a) of the Code. The Company has provided to Parent summaries of all Pension Plans, Welfare Plans, Compensation Plans, and related agreements, and complete and accurate copies of all annual reports (Form 5500), favorable determination letters, current summary plan descriptions, and all employee handbooks or manuals. The Company has provided to Parent (i) copies of all employment agreements with officers of any of the Company, its U.S. Subsidiaries or, to the extent reasonably available, its non-U.S. Subsidiaries (or copies of forms of agreements setting forth representative employment terms and conditions); (ii) copies of all severance, bonus or incentive agreements, programs and policies of any of the Company, any U.S. Subsidiary or, to the extent reasonably available, its non-U.S. Subsidiaries with or relating to any of its employees; and (iii) copies of all plans, programs, agreements and other arrangements of any of the Company, any Subsidiary or, to the extent reasonably available, its non-U.S. Subsidiaries with or relating to any of its employees which contain change in control provisions. With respect to any items that would be described in the immediately preceding sentence but for the fact that such copies relate to non-U.S. Subsidiaries and are not reasonably available to the Company, the Company (i) shall deliver copies thereof to Parent prior to the Effective Time, and (ii) represents and warrants to Parent that such items will not, individually or in the aggregate, be material to the Company and its Subsidiaries.
(g) The execution of, and performance of the transactions contemplated in, this Agreement will not (either alone or upon the occurrence of any additional or subsequent events) constitute an event under any Pension Plan, Welfare Plan, Compensation Plan, or other arrangement that will or may result in any payment (whether of severance pay or otherwise), acceleration, forgiveness of indebtedness, vesting, distribution, increase in benefits, or obligation to fund benefits. No amount that could be received (whether in cash or property or the vesting of property) as a “defined benefit plan” result of any of the transactions contemplated by this Agreement by any employee, officer, or director of the Company or any of its affiliates who is a "disqualified individual" (as such term is defined in proposed Treasury Regulation Section 1.280G-1) under any Pension Plan, Welfare Plan, or Compensation Plan currently in effect would be an "excess parachute payment" (as such term is defined in Section 414(j280G(b)(1) of the Code), a “multiemployer plan” (as defined in Section 3(37) of ERISA) or a “multiple employer plan” (as described in Section 413(c) of the Code) or is otherwise subject to Title IV of ERISA or Section 412 of the Code. To the Purchaser’s Knowledge, no Purchaser Benefit Plan will become a multiple employer plan with respect to any Purchaser Entity immediately after the Closing Date. Neither the Purchaser nor any Subsidiary currently maintains or has ever maintained, or is required currently or has ever been required to contribute to or otherwise participate in, a multiple employer welfare arrangement or voluntary employees’ beneficiary association as defined in Section 501(c)(9) of the Code. For purposes of this Agreement, “ERISA Affiliate” means, with respect to any Person, any Person or entity (whether or not incorporated) that is under common control or treated as one employer under Section 4001(b)(1) of ERISA or Section 414(b), (c), (m) or (o) of the Code.
Appears in 2 contracts
Samples: Merger Agreement (Medtronic Inc), Merger Agreement (Sofamor Danek Group Inc)
Benefit Plans. (i) Set forth on Schedule 3.19(a4.2(s)(i) of the Entegra Disclosure Memorandum is a true true, correct, and complete list of each material Benefit Plan all pension, retirement, survivor income, salary continuation, stock option, restricted stock, restricted stock unit, stock purchase, stock ownership, savings, stock appreciation right, capital appreciation, profit sharing, deferred compensation, consulting, bonus, group insurance, disability, severance, change of control, fringe benefit, incentive, cafeteria or Code Section 125, welfare, and other benefit plans, contracts, agreements, and arrangements, including without limitation “employee benefit plans” as defined in Section 3(3) of ERISA, incentive and welfare policies, contracts, plans, and arrangements, including split dollar life insurance arrangements, and all trust agreements and funding arrangements related thereto, which are or have been maintained, sponsored, or contributed to (or required to be contributed to) by the Company or the Bank or an ERISA Affiliate for the benefit of or with respect to any present or former directors, officers, employees, independent contractors, or consultants of the Purchaser Company or the Bank or any of their respective Subsidiaries, or any spouse or dependent of any such Person, or to or under which the Company or the Bank or an ERISA Affiliate has or may have any Liability, contingent or otherwise (herein referred to collectively as the “Entegra Benefit Plans”), including any and its Subsidiaries all plans or policies offered to employees of the Company or the Bank, or any of their respective Subsidiaries, with respect to which the Company or the Bank or an ERISA Affiliate has claimed or is claiming the safe harbor for “voluntary plans” under ERISA for group and group-type insurance arrangements (each, a “Purchaser Benefit PlanEntegra Voluntary Plans”). With respect The Entegra Parties have previously delivered or made available to each Purchaser Benefit PlanSmartFinancial true, there are no funded benefit obligations for which contributions have not been materially made or properly accrued correct, and there are no material unfunded benefit obligations that have not been accounted for by reservescomplete copies of all plans, or otherwise properly footnoted in accordance with GAAP on the Purchaser Financials. Except as contracts, agreements, arrangements, and other documents required to be set forth on Schedule 3.19(a), neither the Purchaser nor any Subsidiary or has in the past been a member of a “controlled group” for purposes of Section 414(b), (c), (m) or (o4.2(s)(i) of the Code other than with Entegra Disclosure Memorandum, along with, where applicable, copies of the Purchaser IRS Form 5500 for the most recently completed year. There has been no announcement or another Subsidiarycommitment by the Company or the Bank, nor does the Purchaser or any Subsidiary have of their Subsidiaries, to create any Liability with respect additional Entegra Benefit Plan, to amend any collectively-bargained Entegra Benefit Plan (except for plansamendments required by applicable Law which do not materially increase the cost of such Entegra Benefit Plan), whether or not subject to the provisions of ERISAterminate any Entegra Benefit Plan.
(ii) Each Purchaser Other than routine claims for benefits, there is no pending or, to the Knowledge of the Company, threatened or suspected claim, litigation, action, administrative action, suit, audit, arbitration, mediation, or other proceeding relating to any Entegra Benefit Plan Plan. All of the Entegra Benefit Plans comply in all material respects is with applicable requirements of ERISA and has been operated in compliance with all the Code and other applicable Laws (including without limitation the portability, privacy, and security provisions of the Health Insurance Portability and Accountability Act of 1996, as amended; the Patient Protection and Affordable Care Act of 2009, as amended; the coverage continuation requirements of Title X of the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended; the Family and Medical Leave Act, as amended; the Mental Health Parity Act of 1996, as amended; the Mental Health Parity and Addiction Equity Act of 2008, as amended; the Uniformed Services Employment and Reemployment Rights Act, as amended; the Newborns’ and Mothers’ Health Protection Act of 1996, as amended; the Women’s Health and Cancer Rights Act, as amended; and the Genetic Information Nondiscrimination Act of 2008, as amended), and have been established, maintained, and administered in compliance, in all material respects, including with all applicable requirements of ERISA and the Code. Each Purchaser Code and other applicable Laws and the terms and provisions of all documents, contracts, or agreements establishing the Entegra Benefit Plan Plans or pursuant to which is intended to be “qualified” within the meaning of Section 401(a) of the Code (i) has been determined by the IRS to be so qualified (they are maintained or is based on a prototype plan which has received a favorable opinion letter) during the period from its adoption to the date of this Agreement and (ii) is funded through a trust exempt from taxation under Section 501(a) of the Codeadministered. To the Knowledge of the PurchaserCompany, there are no fact exists which could existing circumstances and no event has occurred that would reasonably be expected to adversely affect the qualified status of such Purchaser Benefit Plans or the exempt status of such trusts.
(iii) With respect to each Purchaser Benefit Plan, the Purchaser has made available to the Seller accurate and complete copies, if applicable, of: (i) all Purchaser any Entegra Benefit Plan documents and agreements and related trust agreements or annuity Contracts (including intended to be tax-qualified under Section 401 of the Code. No audit of any amendments, modifications or supplements thereto); (ii) all summary plan descriptions and material modifications thereto; (iii) the three (3) most recent Forms 5500, if applicable, and annual report, including all schedules thereto; (iv) the most recent annual and periodic accounting of plan assets; (v) the three (3) most recent nondiscrimination testing reports; (vi) the most recent determination letter received from Entegra Benefit Plan by the IRS, if any; (vii) the most recent actuarial valuation; and (viii) all material written communications between the Purchaser United States Department of Labor, or any Subsidiary other Governmental Entity is ongoing or to the Knowledge of the Company threatened, or was ongoing or closed or to the Knowledge of the Company threatened at any Purchaser Benefit Plan and any Governmental Authority and relating to a Purchaser Benefit Plan within six (6) years preceding time during the date of this Agreement.
(iv) With respect to each Purchaser Benefit Plan: (i) such Purchaser Benefit Plan has been administered and enforced in all material respects in accordance with its terms, the Code and ERISA; (ii) neither the Purchaser nor any Subsidiary nor any employee, officer or director thereof that is a fiduciary (under ERISA) with respect to such Purchaser Benefit Plan has breached any of its fiduciary responsibilities, obligations or duties imposed on it by ERISA; (iii) no Action is pending or threatened in writing (other than routine claims for benefits arising in the ordinary course of administration); (iv) nothing past five years. There has occurred with respect to any Purchaser Benefit Plan that has subjected the Purchaser or any Subsidiary to any material penalty under no “prohibited transaction” (as defined in Section 502 406 of ERISA or Section 4975 of the Code; and (v) all contributions and premiums due through the Closing Date have been made in all material respects as required under ERISA or have been fully accrued in all material respects on the Purchaser Financials.
(v) No Purchaser with respect to any Entegra Benefit Plan isthat is likely to result in, and neither or has already resulted in, the Purchaser imposition of any penalties or any Subsidiary Taxes upon the Company or the Bank or any of their respective Subsidiaries under Section 502(i) of ERISA Affiliates sponsorsor Section 4975 of the Code.
(iii) No Liability to the Pension Benefit Guaranty Corporation has been, maintainsor is expected by the Entegra Parties or their Subsidiaries to be, contributes toincurred with respect to any Entegra Benefit Plan that is subject to Title IV of ERISA (an “Entegra Pension Plan”), or with respect to any “single-employer plan” (as defined in Section 4001(a) of ERISA) currently or formerly maintained by the Company or the Bank or any ERISA Affiliate. No Entegra Pension Plan had an “accumulated funding deficiency” (as defined in Section 302 of ERISA), whether or not waived, as of the last day of the end of the most recent plan year ending prior to the date hereof, and no notice of a “reportable event” (as defined in Section 4043 of ERISA) for which the reporting requirement has not been waived has been required to be filed for any Entegra Pension Plan within the 12-month period ending on the date of this Agreement. Neither the Company nor the Bank, nor any of their Subsidiaries, has provided or is required to provide security to any Entegra Pension Plan or to any single-employer plan of an ERISA Affiliate pursuant to Section 401(a)(29) of the Code. Neither the Company nor the Bank, nor any of their Subsidiaries or any ERISA Affiliate, has contributed to or been obligated to contribute to, or otherwise has or could reasonably be expected to have any current or contingent Liability under or with respect to, a “multiemployer plan” as defined in Section 3(37) of ERISA.
(iv) Each Entegra Benefit Plan that is an “employee pension benefit plan” (as defined in Section 414(j3(2) of ERISA) and which is intended to be qualified under Section 401(a) of the CodeCode (an “Entegra Qualified Plan”) has received a current favorable determination letter from the IRS (or, in the case of an IRS pre-approved plan, the pre-approved plan has a current IRS opinion or advisory letter upon which the Entegra Parties are entitled to rely under applicable IRS guidance), a and to the Knowledge of the Company there are no facts or circumstances that would reasonably be expected to result in the revocation of any such favorable determination letter. Each Entegra Qualified Plan, if any, that is an “multiemployer employee stock ownership plan” (as defined in Section 3(37) of ERISA) or a “multiple employer plan” (as described in Section 413(c4975(e)(7) of the Code) has satisfied all of the applicable requirements of Sections 409 and 4975(e)(7) of the Code and the regulations thereunder in all material respects.
(v) Neither the Company nor the Bank, nor any of their Subsidiaries, has any obligations for post-employment welfare benefits under any Entegra Benefit Plan that cannot be terminated upon 60 days or is otherwise subject to less notice without incurring any Liability thereunder, except for coverage required by Part 6 of Title IV I of ERISA or Section 412 4980B of the Code. To Code or similar state Laws, the Purchaser’s Knowledge, no Purchaser Benefit Plan will become a multiple employer plan cost of which is borne by the electing individuals.
(vi) All contributions and payments required to be made with respect to any Purchaser Entity immediately after Entegra Benefit Plan by applicable Law or by any plan document or other contractual undertaking, and all premiums due or payable with respect to insurance policies funding any Entegra Benefit Plan, have been timely made or paid in full by the Closing Dateapplicable due date, with extensions, or to the extent not required to be made or paid on or before the date hereof, have been fully reflected or reserved against in the Company Balance Sheet to the extent required by GAAP or regulatory accounting requirements. Neither Any unfunded Entegra Benefit Plan pays benefits solely from the Purchaser general assets of the Company or the Bank, or their applicable Subsidiary, for which arrangement the establishment of a trust under ERISA is not required.
(vii) All required reports, notices, disclosures, and descriptions (including without limitation Form 5500 annual reports and required attachments, Forms 1099-R, summary annual reports, Forms PBGC-1, and summary plan descriptions) have been timely filed or distributed in accordance with applicable Law with respect to each Entegra Benefit Plan. All required Tax filings with respect to each Entegra Benefit Plan have been made, and any Taxes due in connection with such filings have been paid. Since January 1, 2016, neither the Company nor the Bank, nor any Subsidiary currently maintains of their Subsidiaries, has filed or has ever maintained, or is required currently or has ever been required to contribute file with the IRS a Form 8928 in order to self-report any health plan violations which are subject to excise taxes under applicable provisions of the Code, and there are no facts or circumstances that would reasonably be expected to result in the Company or the Bank, or any of their Subsidiaries, being required by the Code to file any such Form 8928.
(viii) Neither the Company nor the Bank, nor any of their Subsidiaries, is a party to or otherwise participate inbound by any Contract (including without limitation any severance, change of control, change in control, salary continuation, or employment agreement) that will, as a multiple employer welfare arrangement result or voluntary employees’ beneficiary association consequence of the execution or delivery of this Agreement or the Bank Merger Agreement, shareholder approval of this Agreement or the transactions contemplated hereby, or the consummation of the transactions, including the Mergers or the Bank Merger, contemplated by this Agreement and the Bank Merger Agreement, either alone or in connection with any other event, (A) entitle any current or former director, officer, employee, or independent contractor of the Company or the Bank, or of any of their Subsidiaries, to severance pay or change of control or other benefits, or any increase in severance pay or other benefits (whether upon termination of employment or termination of such Contract after the date hereof or otherwise), (B) accelerate the time of payment or vesting or trigger any payment or funding (through a grantor trust or otherwise) of compensation or benefits under, increase the amount payable under, or trigger any withdrawal liability under or any other material obligation pursuant to any of the Entegra Benefit Plans, (C) result in any breach or violation of, or a default under, any of the Entegra Benefit Plans, or (D) result in the payment of any “excess parachute payments” within the meaning of Section 280G of the Code or the imposition of any Tax under Section 409A of the Code or the forgiveness of any indebtedness.
(ix) Each Entegra Benefit Plan that is a “nonqualified deferred compensation plan” (as defined in Section 501(c)(9409A(d)(1) of the Code. For purposes ) is in documentary compliance with Section 409A of this Agreementthe Code and has been administered, “ERISA Affiliate” meansas applicable, (A) in good faith compliance with respect Section 409A of the Code during the period beginning October 1, 2004, through December 31, 2008, and (B) in compliance with Section 409A of the Code since January 1, 2009.
(x) No Person is entitled to receive any Person, additional payment (including without limitation any Person Tax gross-up or entity (whether similar payment) from the Company or not incorporated) that is under common control the Bank or treated any of their Subsidiaries as one employer a result of the imposition of any excise Taxes under Section 4001(b)(1) 4999 of ERISA the Code or any Taxes required by Section 414(b), (c), (m) or (o) 409A of the Code.
(xi) All Entegra Voluntary Plans satisfy the regulatory safe-harbor requirements provided by ERISA in order for such Entegra Voluntary Plans to be considered not to be or to have been established, sponsored, or maintained by the Company or the Bank or any of their Subsidiaries and not to constitute an “employee benefit plan” subject to ERISA.
Appears in 2 contracts
Samples: Merger Agreement (Smartfinancial Inc.), Merger Agreement (Entegra Financial Corp.)
Benefit Plans. (i) Set forth on Schedule 3.19(a) is a true and complete list of each material Except as described in SCHEDULE 5.23 hereto, the Seller does not maintain or contribute to any Benefit Plan Plans. Without limiting the generality of the Purchaser and its Subsidiaries (eachforegoing provision of this Section, a “Purchaser Benefit Plan”). With respect to each Purchaser Benefit Planexcept as described in SCHEDULE 5.23 hereto, there are no funded benefit obligations for which contributions have not been materially made or properly accrued and there are no material unfunded benefit obligations that have not been accounted for by reserves, or otherwise properly footnoted in accordance with GAAP on the Purchaser Financials. Except as set forth on Schedule 3.19(a), neither the Purchaser nor any Subsidiary or has in the past been a member of a “controlled group” for purposes of Section 414(b), (c), (m) or (o) of the Code other than with the Purchaser or another Subsidiary, nor does the Purchaser or any Subsidiary have any Liability with respect to any collectively-bargained for pension plans, whether welfare plans or not subject to the provisions of ERISA.
(ii) Each Purchaser Benefit Plan in all material respects is and has been operated in compliance with all applicable Laws in all material respects, including ERISA and the Code. Each Purchaser Benefit Plan which is intended to be “qualified” within the meaning of employee benefit plans qualified under Section 401(a) of the Code (i) has been determined by to which the IRS Seller is required to be so qualified (or is based on a prototype plan which has received a favorable opinion letter) during the period from its adoption contribute. The Seller does not and will not have any unfunded Liability for services rendered prior to the date 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 this Agreement and (ii) is funded through a trust exempt from taxation under controlled group with the Seller, within the meaning of Section 501(a412(c)(11)(B)(ii) of the Code. To the Knowledge , maintains or has ever maintained a "defined benefit plan," as defined in Section 3(35) of the PurchaserERISA, no fact exists which could adversely affect the qualified status that is subject to Section 412 of such Purchaser Benefit Plans or the exempt status of such trusts.
(iii) With respect to each Purchaser Benefit Plan, the Purchaser has made available to the Seller accurate and complete copies, if applicable, of: (i) all Purchaser Benefit Plan documents and agreements and related trust agreements or annuity Contracts (including any amendments, modifications or supplements thereto); (ii) all summary plan descriptions and material modifications thereto; (iii) the three (3) most recent Forms 5500, if applicable, and annual report, including all schedules thereto; (iv) the most recent annual and periodic accounting of plan assets; (v) the three (3) most recent nondiscrimination testing reports; (vi) the most recent determination letter received from the IRS, if any; (vii) the most recent actuarial valuation; and (viii) all material written communications between the Purchaser or any Subsidiary or any Purchaser Benefit Plan and any Governmental Authority and relating to a Purchaser Benefit Plan within six (6) years preceding the date of this Agreement.
(iv) With respect to each Purchaser Benefit Plan: (i) such Purchaser Benefit Plan has been administered and enforced in all material respects in accordance with its terms, the Code and Section 302 of ERISA; (ii) . Except as set forth in SCHEDULE 5.23 hereto, neither the Purchaser Seller nor any Subsidiary nor of its "subsidiaries" contributes to or has any employee, officer or director thereof that is a fiduciary Liability (under ERISAincluding but not limited to withdrawal Liability) with respect to such Purchaser Benefit Plan has breached any of its fiduciary responsibilities, obligations or duties imposed on it by ERISA; (iii) no Action is pending or threatened in writing (other than routine claims for benefits arising in the ordinary course of administration); (iv) nothing has occurred with respect to any Purchaser Benefit Plan that has subjected the Purchaser or any Subsidiary to any material penalty under Section 502 of ERISA or Section 4975 of the Code; and (v) all contributions and premiums due through the Closing Date have been made in all material respects as required under ERISA or have been fully accrued in all material respects on the Purchaser Financials.
(v) No Purchaser Benefit Plan is, and neither the Purchaser or any Subsidiary or any of their respective ERISA Affiliates sponsors, maintains, contributes to, is required to contribute to, or otherwise has or could reasonably be expected to have any current or contingent Liability under or with respect to, a “defined benefit plan” multi-employer plan (as defined in Section 414(j4064(a) of the Code), a “multiemployer plan” (as defined in Section 3(37) of ERISA) or a “multiple employer plan” (as described in Section 413(c) of the Code) or is otherwise subject to Title IV of ERISA or Section 412 4001(a)(3) of the CodeERISA). To the Purchaser’s Other than claims for benefits in ordinary course, there are no actions, suits, disputes, arbitrations or other material claims pending or, to Seller's' Knowledge, no Purchaser Benefit Plan will become a multiple employer plan Threatened with respect to any Purchaser Entity immediately after the Closing Date. Neither the Purchaser nor any Subsidiary currently maintains or has ever maintained, or is required currently or has ever been required to contribute to or otherwise participate in, a multiple employer welfare arrangement or voluntary employees’ beneficiary association as defined in Section 501(c)(9) of the CodeBenefit Plan. For purposes of this AgreementSection, “ERISA Affiliate” means, with respect to any Person, any Person "subsidiaries" shall include all corporations and all trades or entity businesses (whether or not incorporated) that is which may be liable for any income Tax, loss of Tax deduction, excise Taxes, penalties or other similar consequences under common control or treated ERISA (as one employer under Section 4001(b)(1) of ERISA or Section 414(b), (c), (mhereinafter defined) or (o) under the Code by reason of its ownership affiliation with the CodeSeller.
Appears in 2 contracts
Samples: Purchase and Sale Agreement (Genmar Holdings Inc), Purchase and Sale Agreement (Genmar Holdings Inc)
Benefit Plans. (ia) Set forth on Schedule 3.19(a) is a true and complete list of each material Benefit Plan of Neither the Purchaser and its Subsidiaries (each, a “Purchaser Benefit Plan”). With respect to each Purchaser Benefit Plan, there are no funded benefit obligations for which contributions have not been materially made or properly accrued and there are no material unfunded benefit obligations that have not been accounted for by reserves, or otherwise properly footnoted in accordance with GAAP on the Purchaser Financials. Except as set forth on Schedule 3.19(a), neither the Purchaser Company nor any Subsidiary or has in the past been a member of a “controlled group” for purposes of Section 414(b), (c), (m) or (o) of the Code other than with the Purchaser or another Subsidiary, nor does the Purchaser or any Subsidiary have any Liability with respect to any collectively-bargained for plans, whether or not subject to the provisions of ERISA.
(ii) Each Purchaser Benefit Plan in all material respects is and has been operated in compliance with all applicable Laws in all material respects, including ERISA and the Code. Each Purchaser Benefit Plan which is intended to be “qualified” within the meaning of Section 401(a) of the Code (i) has been determined by the IRS to be so qualified (or is based on a prototype plan which has received a favorable opinion letter) during the period from its adoption to the date of this Agreement and (ii) is funded through a trust exempt from taxation under Section 501(a) of the Code. To the Knowledge of the Purchaser, no fact exists which could adversely affect the qualified status of such Purchaser Benefit Plans or the exempt status of such trusts.
(iii) With respect to each Purchaser Benefit Plan, the Purchaser has made available to the Seller accurate and complete copies, if applicable, of: (i) all Purchaser Benefit Plan documents and agreements and related trust agreements or annuity Contracts (including any amendments, modifications or supplements thereto); (ii) all summary plan descriptions and material modifications thereto; (iii) the three (3) most recent Forms 5500, if applicable, and annual report, including all schedules thereto; (iv) the most recent annual and periodic accounting of plan assets; (v) the three (3) most recent nondiscrimination testing reports; (vi) the most recent determination letter received from the IRS, if any; (vii) the most recent actuarial valuation; and (viii) all material written communications between the Purchaser or any Subsidiary or any Purchaser Benefit Plan and any Governmental Authority and relating to a Purchaser Benefit Plan within six (6) years preceding the date of this Agreement.
(iv) With respect to each Purchaser Benefit Plan: (i) such Purchaser Benefit Plan has been administered and enforced in all material respects in accordance with its terms, the Code and ERISA; (ii) neither the Purchaser nor any Subsidiary nor any employee, officer or director thereof that is a fiduciary (under ERISA) with respect to such Purchaser Benefit Plan has breached any of its fiduciary responsibilities, obligations or duties imposed on it by ERISA; (iii) no Action is pending or threatened in writing (other than routine claims for benefits arising in the ordinary course of administration); (iv) nothing has occurred with respect to any Purchaser Benefit Plan that has subjected the Purchaser or any Subsidiary to any material penalty under Section 502 of ERISA or Section 4975 of the Code; and (v) all contributions and premiums due through the Closing Date have been made in all material respects as required under ERISA or have been fully accrued in all material respects on the Purchaser Financials.
(v) No Purchaser Benefit Plan is, and neither the Purchaser or any Subsidiary or any of their respective ERISA Affiliates sponsors, maintains, contributes to, is or has, during the five year period ending on the date of this Agreement, sponsored, maintained, or contributed to or been required to contribute to, any "employee pension benefit plan" ("Pension Plan"), as such term is defined in Section 3(2) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), including, solely for the purpose of this subsection, a plan excluded from coverage by Section 4(b)(5) of ERISA. Each such Pension Plan presently maintained by the Company or otherwise any Subsidiary is, in all material respects, in compliance with applicable provisions of ERISA, the Code, and other applicable law and the Company or such Subsidiary has performed all of its obligations under such Pension Plan except for such obligations that could not reasonably be expected to have a Company Material Adverse Effect.
(b) Neither the Company nor any Subsidiary sponsors, maintains, contributes to, or has, during the five year period ending on the date of this Agreement, sponsored, maintained, or contributed to or been required to contribute to, any Pension Plan that is subject to Title IV of ERISA.
(c) Neither the Company nor any Subsidiary sponsors, maintains, or contributes to any "employee welfare benefit plan" ("Welfare Plan"), as such term is defined in Section 3(1) of ERISA, whether insured or otherwise, and any such Welfare Plan presently maintained by the Company or any Subsidiary is, in all material respects, in compliance with the provisions of ERISA, the Code, and all other applicable laws, including, but not limited to, Section 4980B of the Code and the regulations thereunder, and Part 6 of Title I of ERISA. Neither the Company nor any Subsidiary has established or contributed to any "voluntary employees' beneficiary association" within the meaning of Section 501(c)(9) of the Code.
(d) Neither the Company nor any Subsidiary currently maintains or contributes to any oral or written bonus, profit-sharing, compensation (incentive or otherwise), commission, stock option, or other stock-based compensation, retirement, severance, change of control, vacation, sick or parental leave, dependent care, deferred compensation, cafeteria, disability, hospitalization, medical, death, retiree, insurance, or other benefit or welfare or other similar plan, policy, agreement, trust, fund, or arrangement providing for the remuneration or benefit of all or any employees, directors or any other person, that is neither a Pension Plan nor a Welfare Plan (collectively, the "Compensation Plans").
(e) With respect to the Pension Plans, Welfare Plans or Compensation Plans, no event has occurred and, to the knowledge of the Company, there exists no condition or set of circumstances, in connection with which the Company or any of its Subsidiaries could be subject to any liability under the terms of such Plans (other than the payment of benefits thereunder), ERISA, the Code or any other applicable law which could reasonably be expected to have any current or contingent Liability under or with respect to, a “defined benefit plan” Company Material Adverse Effect.
(as defined in Section 414(jf) of the Code), a “multiemployer plan” (as defined in Section 3(37) of ERISA) or a “multiple employer plan” (as described in Section 413(c) of the Code) or is otherwise subject to Title IV of ERISA or Section 412 of the Code. To the Purchaser’s Knowledge, no Purchaser Benefit Plan will become a multiple employer plan The Internal Revenue Service has issued favorable determination letters with respect to any Purchaser Entity immediately after the Closing Date. Neither the Purchaser nor any all Company and Subsidiary currently maintains or has ever maintained, or is required currently or has ever been required Pension Plans that are intended to contribute to or otherwise participate in, a multiple employer welfare arrangement or voluntary employees’ beneficiary association as defined in be qualified under Section 501(c)(9401(a) of the Code. For purposes The Company has provided to Parent the written documents setting forth the terms of this Agreementall Pension Plans, “ERISA Affiliate” meansWelfare Plans, Compensation Plans, and related agreements, and complete and accurate copies of all annual reports (Form 5500), favorable determination letters, current summary plan descriptions, and all employee handbooks or manuals. The Company has provided to Parent (i) copies of all employment agreements with officers of any of the Company, its U.S. Subsidiaries or, to the extent reasonably available, the Company's non-U.S. Subsidiaries (or copies of forms of agreements setting forth representative employment terms and conditions); (ii) copies of all severance, bonus or incentive agreements, programs and policies of any of the Company, any U.S. Subsidiary or, to the extent reasonably available, the Company's non-U.S. Subsidiaries with or relating to any of its employees; and (iii) copies of all plans, programs, agreements and other arrangements of any of the Company, any U.S. Subsidiary or, to the extent reasonably available, the Company's non-U.S. Subsidiaries with or relating to any of its employees which contain change in control provisions. With respect to any Personitems that would be described in the immediately preceding sentence but for the fact that such copies relate to non-U.S. Subsidiaries and are not reasonably available to the Company, the Company (i) shall deliver copies thereof to Parent prior to the Effective Time, and (ii) represents and warrants to Parent that such items will not, individually or in the aggregate, be material to the Company and its Subsidiaries.
(g) The execution by the Company of, and performance by the Company of the transactions contemplated in, this Agreement will not (either alone or upon the occurrence of any Person additional or entity subsequent events) constitute an event under any Pension Plan, Welfare Plan, Compensation Plan, or other arrangement that will result in any payment (whether of severance pay or not incorporated) that is under common control or treated as one employer under Section 4001(b)(1) of ERISA or Section 414(botherwise), acceleration, forgiveness of indebtedness, vesting, distribution, increase in benefits, or obligation to fund benefits. No amount that could be received (c), (mwhether in cash or property or the vesting of property) or (o) as a result of any of the Codetransactions contemplated by this Agreement by any employee, officer, or director of the Company or any of its affiliates who is a "disqualified individual" (as such term is defined in Prop. Treas.
Appears in 2 contracts
Samples: Merger Agreement (Arterial Vascular Engineering Inc), Merger Agreement (Medtronic Inc)
Benefit Plans. (ia) Set forth on Schedule 3.19(a4.19(a) is a true and complete list of each material Benefit Plan of a Target Company as of the Purchaser and its Subsidiaries date hereof (each, a “Purchaser Company Benefit Plan”). With respect to each Purchaser Company Benefit Plan, there are no funded benefit obligations for which contributions have not been materially made or properly accrued and there are no material unfunded benefit obligations that have not been accounted for by reserves, or otherwise properly footnoted in accordance with GAAP on the Purchaser Company Financials, except to the extent that such amount would not, individually or in the aggregate, have or reasonably be expected to have a Material Adverse Effect on, or with respect to, the Purchaser. Except as set forth on Schedule 3.19(a), neither the Purchaser nor any Subsidiary No Target Company is or has in the past been a member of a “controlled group” for purposes of Section 414(b), (c), (m) or (o) of the Code with respect to any person or entity other than with the Purchaser or another SubsidiaryTarget Company, nor does the Purchaser or any Subsidiary Target Company have any Liability with respect to any collectively-bargained for benefit plans, whether or not subject to the provisions of ERISA.
(iib) Each Purchaser Company Benefit Plan in all material respects is and has been operated in compliance with all applicable Laws in all material respectsLaws, including ERISA and the Code, except for any noncompliance that, individually or in the aggregate, have not had and would not reasonably be expected to have a Material Adverse Effect on, or with respect to, the Purchaser. Each Purchaser Company Benefit Plan which is intended to be “qualified” within the meaning of Section 401(a) of the Code (i) has received a determination letter from the IRS and its related trust has been determined by the IRS to be so qualified (or is based on a prototype plan which has received a favorable opinion letter) during the period from its adoption to the date of this Agreement and (ii) is funded through a trust exempt from taxation under Section 501(a) of the CodeCode (or is based on a pre-approved plan for which the pre-approved plan sponsor has received a favorable opinion letter). To the Knowledge of the PurchaserCompany’s Knowledge, no fact exists which could that would reasonably be expected to adversely affect the qualified status of such Purchaser Company Benefit Plans or the exempt status of such trusts.
(iiic) With respect to each Purchaser Company Benefit PlanPlan that covers any current or former officer, director, consultant or employee (or beneficiary thereof) of a Target Company, the Purchaser Company has made available to the Seller Purchaser accurate and complete copies, if applicable, of: (i) all Purchaser Benefit Plan the current plan documents and agreements and related trust agreements or annuity Contracts (including any amendments, modifications or supplements thereto); (ii) all the current summary plan descriptions and material modifications thereto; (iii) the three (3) most recent Forms 5500, if applicable, and annual report, including all schedules thereto; (iv) the most recent annual and periodic accounting of plan assets; (v) the three (3) most recent nondiscrimination testing reports; (vi) the most recent determination or opinion letter received from the IRS, if any; (vii) the most recent actuarial valuation, if any; and (viii) all material written communications between the Purchaser or any Subsidiary or any Purchaser Benefit Plan and with any Governmental Authority and relating to a Purchaser Benefit Plan within six the last three (63) years preceding the date of this Agreementyears.
(ivd) With respect to each Purchaser Company Benefit Plan: (i) such Purchaser Benefit Plan to the Knowledge of the Company, no breach of fiduciary duty that could reasonably be expected to result in a Material Adverse Effect to any Target Company has been administered and enforced in all material respects in accordance with its terms, the Code and ERISAoccurred; (ii) neither the Purchaser nor any Subsidiary nor any employee, officer or director thereof that is a fiduciary (under ERISA) with respect to such Purchaser Benefit Plan has breached any of its fiduciary responsibilities, obligations or duties imposed on it by ERISA; (iii) no Action is pending pending, or to the Company’s Knowledge, threatened in writing (other than routine claims for benefits arising in the ordinary course of administration); and (iviii) nothing has occurred with respect to any Purchaser Benefit Plan that has subjected the Purchaser or any Subsidiary to any material penalty under no prohibited transaction, as defined in Section 502 406 of ERISA or Section 4975 of the Code; and (v) all contributions and premiums due through the Closing Date have been made , has occurred that would reasonably be likely to result in all material respects as required under ERISA a Material Adverse Effect to any Target Company, excluding transactions effected pursuant to a statutory or have been fully accrued in all material respects on the Purchaser Financialsadministration exemption.
(ve) No Purchaser Benefit Plan isDuring the six (6) year period preceding the Effective Time, and neither the Purchaser or any Subsidiary no Target Company or any of their respective ERISA Affiliates sponsorshas maintained, maintains, contributes to, is required to contribute contributed to, or otherwise has or could reasonably be expected had an obligation to have any current or contingent Liability under or with respect to, contribute to (i) a “defined benefit plan” (as defined in Section 414(j) of the Code), (ii) a “multiemployer plan” (as defined in Section 3(37) of ERISA), or (iii) or a “multiple employer plan” (as described in Section 413(c) of the Code) or ). No Company Benefit Plan is otherwise subject to Title IV of ERISA or Section 412 of the Code. To , and neither the PurchaserTarget Company nor any ERISA Affiliate has incurred any Liability, contingent or otherwise, under Title IV of ERISA and, to the Company’s Knowledge, no Purchaser condition presently exists that is expected to cause such Liability to be incurred. No Company Benefit Plan will become a multiple employer plan with respect to any Purchaser Entity Target Company immediately after the Closing Date. Neither the Purchaser nor any Subsidiary No Target Company currently maintains or has ever maintained, or is required currently or has ever been required to contribute to or otherwise participate in, a multiple employer welfare arrangement or voluntary employees’ beneficiary association as defined in Section 501(c)(9) of the Code. For purposes .
(f) With respect to each Company Benefit Plan that is a “welfare plan” (as described in Section 3(1) of this Agreement, “ERISA Affiliate” means, ERISA): (i) no such plan provides medical or death benefits with respect to any Person, any Person current or entity former employees of a Target Company beyond their termination of employment (whether or not incorporatedother than coverage mandated by Law); and (ii) that is under common control or treated as one employer under each Target Company has complied in all material respects with the provisions of Section 4001(b)(1) 601 et seq. of ERISA or and Section 414(b), (c), (m) or (o) 4980B of the Code.
(g) The consummation of the Transactions will not, by itself: (i) entitle any individual to severance pay, unemployment compensation or other benefits or compensation or (ii) accelerate the time of payment or vesting, or increase the amount of any compensation due, or in respect of, any individual. No Target Company has incurred any Liability for any Tax imposed under Chapter 43 of the Code or civil liability under Section 502(i) or (l) of ERISA.
(h) Each Company Benefit Plan that is subject to Section 409A of the Code has been administered in compliance, and is in documentary compliance, in each case in all material respects, with the applicable provisions of Section 409A of the Code, the regulations thereunder and other official guidance issued thereunder. There is no Contract or plan to which any Target Company is a party or by which it is bound to compensate any employee, consultant or director for any Taxes or interest imposed pursuant to Section 409A of the Code.
(i) Each Company Option intended to qualify as an “incentive stock option” under the Code so qualifies. Each grant of a Company Option was duly authorized no later than the date on which the grant of such Company Option was by its terms to be effective by all necessary corporate action, and: (i) the stock option agreement governing such grant was duly executed and delivered by each party thereto (including electronic execution and delivery); (ii) each such grant was made in accordance with the terms of the Company Equity Plan and all other applicable Laws; (iii) the per share exercise price of each Company Option was equal or greater than the fair market value (within the meaning of Section 409A of the Code) of a share of Company Common Stock on the applicable grant date; and (iv) each such grant was properly accounted for in accordance with GAAP in the financial statements (including the related notes) of the Company.
Appears in 2 contracts
Samples: Merger Agreement (SANUWAVE Health, Inc.), Merger Agreement (SEP Acquisition Corp.)
Benefit Plans. (a) Section 3.12(a) of the Company Disclosure Letter lists (i) Set forth on Schedule 3.19(aeach individual employment, termination, or severance agreement with employees or former employees of the Company whose annual compensation is at a base rate equal to or exceeding $100,000, (ii) all employee benefit plans as that term is defined in Section 3(3) of the Employee Retirement and Income Security Act of 1974 ("ERISA") and (iii) all other plans or compensation arrangements, maintained or contributed to by the Company for the benefit of its employees (or former employees) and/or their beneficiaries ("Benefit Plans"). An arrangement will not fail to be a Benefit Plan simply because it only covers one individual.
(b) The Company has delivered or made available to the Parent a true and complete list copy of the following documents (to the extent that they are applicable): (i) each material Benefit Plan of the Purchaser and its Subsidiaries any related funding agreements, including all amendments (each, a “Purchaser Benefit Plan”). With respect to each Purchaser Benefit Plan, there are no funded benefit obligations for which contributions have not been materially made or properly accrued and there are no material unfunded benefit obligations that have not been accounted for by reserves, or otherwise properly footnoted in accordance with GAAP on the Purchaser Financials. Except as set forth on Schedule 3.19(a), neither the Purchaser nor any Subsidiary or has in the past been a member of a “controlled group” for purposes of Section 414(b), (c), (m) or (o3.12(b) of the Code other than with Company Disclosure Letter includes a description of any such amendment that is not in writing), and (ii) the Purchaser or another Subsidiary, nor does two most recent Form 5500s (including all applicable schedules and the Purchaser or opinions of the independent accountants) that were filed on behalf of any Subsidiary have any Liability with respect to any collectively-bargained for plans, whether or not subject to the provisions of ERISABenefit Plan.
(iic) Each Purchaser To the Knowledge of the Company, each Benefit Plan in at all material respects is and times has been operated in compliance accordance with its terms, and complies currently, and has complied in the past, both in form and in operation, with all applicable Laws in all material respectslaws, including ERISA and the Code. Each Purchaser .
(d) The Company does not maintain any Benefit Plan which is intended that provides (or will provide) medical, death, or other fringe benefits to former employees or independent contractors (including retirees), other than benefits that are required to be “qualified” provided pursuant to Section 4980B of the Code or state law continuation coverage or conversion rights.
(e) Except as provided in Section 3.12(e) of the Company Disclosure Letter, none of the Benefit Plans provide any benefits that would result in excess parachute payments (within the meaning of Section 401(a) 280G of the Code Code), either (i) solely as a result of the consummation of the Transactions or (ii) as a result of the consummation of the Transactions and any actions taken after the Closing. Furthermore, the consummation of the Transactions will not require the funding, whether formal or informal, of the benefits under any Benefit Plan (e.g., contributions to a Rabbi Trust).
(f) No Benefit Plan is subject to Title IV of ERISA.
(g) Except as would not, individually or in the aggregate reasonably be expected to have a Material Adverse Effect on the Company, none of the Persons performing services for the Company have been improperly classified as being independent contractors, leased employees or as being exempt from the payment of wages for overtime.
(h) Other than routine claims for benefits under the Benefit Plan and those relating to qualified domestic relations orders, there are no (i) pending or (ii) to the Knowledge of the Company, threatened lawsuits or other claims against or involving any Benefit Plan, or any Fiduciary (within the meaning of Section 3(21)(A) of ERISA) of such Benefit Plan brought on behalf of any participant, beneficiary, or Fiduciary thereunder, nor is there any reasonable basis for any such claim.
(i) The Company has been determined by no intention or commitment, whether legally binding or not, to create any additional Benefit Plan, or to modify any existing Benefit Plan so as to increase benefits to participants or the IRS to be so qualified (or is based on a prototype plan which has received a favorable opinion letter) during cost of maintaining the period from its adoption Benefit Plan. The benefits under all Benefit Plans are as represented, and have not been, and will not be, increased subsequent to the date of this Agreement and Agreement. No statement, either oral or written, has been made by the Company (ii) is funded through a trust exempt from taxation under Section 501(a) or any agent of the Code. Company) to any Person regarding any Benefit Plan that is not in accordance with such Benefit Plan that could have adverse economic consequences to the Parent or the Surviving Corporation.
(j) To the Knowledge of the PurchaserCompany, no fact exists all costs of administering and contributions required to be made to each Benefit Plan under the terms of that Benefit Plan, ERISA, the Code, or any other applicable law have been timely made, and are fully deductible in the year for which could adversely affect they were paid, and all other amounts that should be accrued to date as liabilities of the qualified status Company under or with respect to each Benefit Plan (including administrative expenses and incurred but not reported claims) for the current plan year of such Purchaser the Benefit Plans or Plan have been recorded on the exempt status books of such truststhe Company.
(iiik) With respect For purposes of this Section 3.12(k) "Company International Plans" means each compensation and benefit plan required to be maintained or contributed to by the law or applicable custom or rule of the relevant jurisdiction outside of the United States. As regards each Purchaser Benefit such Company International Plan, unless disclosed in Section 3.12(k) of the Purchaser has made available Company Disclosure Letter, to the Seller accurate and complete copiesKnowledge of the Company, if applicable, of: (i) all Purchaser Benefit each of the Company International Plans is in compliance with the provisions of the laws of each jurisdiction in which each such Company International Plan documents and agreements and related trust agreements or annuity Contracts (including any amendmentsis maintained, modifications or supplements thereto)to the extent those laws are applicable to the Company International Plans; (ii) all summary plan descriptions material contributions to, and material modifications theretopayments from, the Company International Plans that may have been required to be made in accordance with the terms of any such Company International Plan, and, when applicable, the law of the jurisdiction in which such Company International Plan is maintained, have been timely made or shall be made by the Closing Date, and all such contributions to the Company International Plans, and all payments under the Company International Plans, for any period ending before the Closing Date that are not yet, but will be, required to be made, are reflected as an accrued liability in the most recent financial statements included in the Company Filed SEC Documents; (iii) the three (3) most recent Forms 5500Company has materially complied with all applicable reporting and notice requirements, and all of the Company International Plans have obtained from the governmental body having jurisdiction with respect to such plans any required determinations, if applicableany, and annual report, including all schedules theretothat such Company International Plans are in compliance with the laws of the relevant jurisdiction if such determinations are required in order to give effect to the Company International Plan; (iv) each of the most recent annual Company International Plans has been administered in all material respects at all times in accordance with its terms and periodic accounting of plan assetsapplicable law and regulations; (v) to the three Knowledge of the Company, there are no pending investigations by any governmental body involving the Company International Plans, and no pending claims (3) most recent nondiscrimination testing reportsexcept for claims for benefits payable in the normal operation of the Company International Plans), suits or proceedings against any Company International Plan or asserting any rights or claims to benefits under any Company International Plan; and (vi) the most recent determination letter received from consummation of the IRS, if any; (vii) the most recent actuarial valuation; and (viii) all material written communications between the Purchaser transactions contemplated by this Agreement will not by itself create or otherwise result in any Subsidiary or any Purchaser Benefit Plan and any Governmental Authority and relating to a Purchaser Benefit Plan within six (6) years preceding the date of this Agreement.
(iv) With respect to each Purchaser Benefit Plan: (i) such Purchaser Benefit Plan has been administered and enforced in all material respects in accordance with its terms, the Code and ERISA; (ii) neither the Purchaser nor any Subsidiary nor any employee, officer or director thereof that is a fiduciary (under ERISA) with respect to such Purchaser Benefit Plan has breached any of its fiduciary responsibilities, obligations or duties imposed on it by ERISA; (iii) no Action is pending or threatened in writing (other than routine claims for benefits arising in the ordinary course of administration); (iv) nothing has occurred liability with respect to any Purchaser Benefit Company International Plan that has subjected other than the Purchaser or any Subsidiary triggering of payment to any material penalty under Section 502 of ERISA or Section 4975 of the Code; and (v) all contributions and premiums due through the Closing Date have been made in all material respects as required under ERISA or have been fully accrued in all material respects on the Purchaser Financialsparticipants.
(v) No Purchaser Benefit Plan is, and neither the Purchaser or any Subsidiary or any of their respective ERISA Affiliates sponsors, maintains, contributes to, is required to contribute to, or otherwise has or could reasonably be expected to have any current or contingent Liability under or with respect to, a “defined benefit plan” (as defined in Section 414(j) of the Code), a “multiemployer plan” (as defined in Section 3(37) of ERISA) or a “multiple employer plan” (as described in Section 413(c) of the Code) or is otherwise subject to Title IV of ERISA or Section 412 of the Code. To the Purchaser’s Knowledge, no Purchaser Benefit Plan will become a multiple employer plan with respect to any Purchaser Entity immediately after the Closing Date. Neither the Purchaser nor any Subsidiary currently maintains or has ever maintained, or is required currently or has ever been required to contribute to or otherwise participate in, a multiple employer welfare arrangement or voluntary employees’ beneficiary association as defined in Section 501(c)(9) of the Code. For purposes of this Agreement, “ERISA Affiliate” means, with respect to any Person, any Person or entity (whether or not incorporated) that is under common control or treated as one employer under Section 4001(b)(1) of ERISA or Section 414(b), (c), (m) or (o) of the Code.
Appears in 2 contracts
Samples: Merger Agreement (Electronics for Imaging Inc), Merger Agreement (Printcafe Software Inc)
Benefit Plans. (ia) Set forth on Schedule 3.19(a) Buyer has performed all obligations required to be performed by it under, is a true not in default or violation of, and complete list has no knowledge of any default or violation by any other party to, each material Benefit Plan of the Purchaser and its Subsidiaries (eachemployee compensation, a “Purchaser Benefit Plan”). With respect to each Purchaser Benefit Planincentive, there are no funded fringe or benefit obligations for which contributions have not been materially made or properly accrued and there are no material unfunded benefit obligations that have not been accounted for by reserves, or otherwise properly footnoted in accordance with GAAP on the Purchaser Financials. Except as set forth on Schedule 3.19(a), neither the Purchaser nor any Subsidiary or has in the past been a member of a “controlled group” for purposes of Section 414(b), (c), (m) or (o) of the Code other than with the Purchaser or another Subsidiary, nor does the Purchaser or any Subsidiary have any Liability with respect to any collectively-bargained for plans, programs, policies, practices, contracts, agreements, commitments or other arrangements (whether or not subject to the provisions of ERISA.
(ii) Each Purchaser Benefit Plan set forth in a written document and including, without limitation, all material respects is and has been operated in compliance with all applicable Laws in all material respects, including ERISA and the Code. Each Purchaser Benefit Plan which is intended to be “qualifiedemployee benefit plans” within the meaning of Section 401(a3(3) of the Code (iERISA) has been determined by the IRS to be so qualified (covering any active or is based on a prototype plan which has received a favorable opinion letter) during the period from its adoption to the date former employee, director or consultant of this Agreement and (ii) is funded through a trust exempt from taxation under Section 501(a) of the Code. To the Knowledge of the PurchaserBuyer, no fact exists which could adversely affect the qualified status of such Purchaser Benefit Plans or the exempt status of such trusts.
(iii) With respect to each Purchaser Benefit Plan, the Purchaser has made available to the Seller accurate and complete copies, if applicable, of: (i) all Purchaser Benefit Plan documents and agreements and related trust agreements or annuity Contracts (including any amendments, modifications or supplements thereto); (ii) all summary plan descriptions and material modifications thereto; (iii) the three (3) most recent Forms 5500, if applicable, and annual report, including all schedules thereto; (iv) the most recent annual and periodic accounting of plan assets; (v) the three (3) most recent nondiscrimination testing reports; (vi) the most recent determination letter received from the IRS, if any; (vii) the most recent actuarial valuation; and (viii) all material written communications between the Purchaser or any Buyer Subsidiary or any Purchaser trade or business (whether or not incorporated) which is a Buyer Affiliate (the “Buyer Employee Benefit Plan Plans”), except for such failures to perform, defaults and any Governmental Authority and relating to violations as would not have a Purchaser Benefit Plan within six (6) years preceding the date of this Agreement.
(iv) With respect to each Purchaser Benefit Plan: (i) Buyer Material Adverse Effect. Each such Purchaser Buyer Employee Benefit Plan has been established, maintained and administered and enforced in all material respects in accordance with its termsterms and with the requirements prescribed by any and all statutes, orders, rules and regulations (foreign or domestic), including but not limited to ERISA and the Code and ERISA; (ii) neither the Purchaser nor any Subsidiary nor any employeeCode, officer or director thereof that is a fiduciary (under ERISA) with respect which are applicable to such Purchaser Buyer Employee Benefit Plan has breached any of its fiduciary responsibilitiesPlans, obligations except for such violations as would not have a Buyer Material Adverse Effect. No suit, action, claim or duties imposed on it by ERISA; other litigation (iii) no Action is pending or threatened in writing (other than routine excluding claims for benefits arising incurred in the ordinary course of administration); (ivBuyer Employee Benefit Plan activities) nothing has occurred been brought, or to the knowledge of Buyer is threatened, against or with respect to any Purchaser such Buyer Employee Benefit Plan that has subjected and there are no audits, inquiries or proceedings pending or, to the Purchaser knowledge of Buyer, threatened by the Internal Revenue Service or any Subsidiary United States Department of Labor with respect to any material penalty under Section 502 of ERISA or Section 4975 of the Code; and (v) all contributions and premiums due through the Closing Date Buyer Employee Benefit Plans that would have been made in all material respects as required under ERISA or have been fully accrued in all material respects on the Purchaser Financialsa Buyer Material Adverse Effect.
(vb) No Purchaser Benefit Plan isNone of Buyer, and neither the Purchaser any Buyer Subsidiary, or any Subsidiary Buyer Affiliate maintains or has at any of their respective ERISA Affiliates sponsorstime ever maintained, maintainsestablished, contributes tosponsored, is required to contribute toparticipated in, or otherwise has or could reasonably be expected contributed to have any current or contingent Liability under or with respect to, a “defined benefit plan” (as defined in Section 414(j) of the Code), a “multiemployer plan” (as defined in Section 3(37) of ERISA) or a “multiple employer plan” (as described in Section 413(c) of the Code) or is otherwise plan subject to Title IV of ERISA or Section 412 of the Code. To the Purchaser’s Knowledge, Code and at no Purchaser Benefit Plan will become a multiple employer plan with respect time has Buyer or any Buyer Subsidiary contributed to any Purchaser Entity immediately after the Closing Date. Neither the Purchaser nor any Subsidiary currently maintains or has ever maintained, or is required currently or has ever been required requested to contribute to or otherwise participate in, a multiple employer welfare arrangement or voluntary employees’ beneficiary association any “multiemployer plan,” as such term is defined in ERISA Section 501(c)(93(37) or to any plan described in Section 413 of the Code. For purposes None of this AgreementBuyer, “ERISA Affiliate” means, with respect any Buyer Subsidiary or any officer or director of Buyer or any Buyer Subsidiary is subject to any Personliability or penalty under Section 4975 through 4980B of the Code or Title I of ERISA.
(c) None of the Buyer Employee Benefit Plans promises or provides retiree medical or other retiree welfare benefits to any person except as required by applicable law, and neither Buyer nor any Person Buyer Subsidiary has represented, promised or entity contracted (whether in oral or not incorporatedwritten form) that is under common control to provide such retiree benefits to any employee, former employee, director, consultant or treated as one employer under Section 4001(b)(1) of ERISA or Section 414(b)other person, (c), (m) or (o) of except to the Codeextent required by statute.
Appears in 2 contracts
Samples: Merger Agreement (Spectrian Corp /Ca/), Merger Agreement (Spectrian Corp /Ca/)
Benefit Plans. (ia) Set forth on Schedule 3.19(a) is a true and complete list of each material Benefit Plan of the Purchaser and its Subsidiaries (each, a “Purchaser Benefit Plan”). With respect to each Purchaser Benefit Plan, there are no funded benefit obligations for which contributions plans (as defined in Section 9.6);
(b) the benefit plans have not been materially made or properly accrued maintained and operated in accordance with their terms and applicable legal requirements and there are no material unfunded outstanding violations or defaults under any benefit obligations plans except for violations or defaults that neither, individually or in the aggregate, have not been accounted for had or would be reasonably expected to have a Material Adverse Effect nor would prevent or materially delay or limit the performance of this Agreement by reservesICP, or otherwise properly footnoted in accordance with GAAP on the Purchaser Financials. Except as set forth on Schedule 3.19(a), neither the Purchaser nor any Subsidiary actions, claims or has in other proceedings pending or, to the past been a member knowledge of a “controlled group” for purposes of Section 414(b)ICP, (c), (m) or (o) of the Code other than with the Purchaser or another Subsidiary, nor does the Purchaser or any Subsidiary have any Liability threatened with respect to any collectively-bargained benefit plan except for plans, whether or not subject to the provisions of ERISA.
(ii) Each Purchaser Benefit Plan in all material respects is and has been operated in compliance with all applicable Laws in all material respects, including ERISA and the Code. Each Purchaser Benefit Plan which is intended to be “qualified” within the meaning of Section 401(a) of the Code (i) has been determined by the IRS to be so qualified (or is based on a prototype plan which has received a favorable opinion letter) during the period from its adoption to the date of this Agreement and (ii) is funded through a trust exempt from taxation under Section 501(a) of the Code. To the Knowledge of the Purchaser, no fact exists which could adversely affect the qualified status of such Purchaser Benefit Plans or the exempt status of such trusts.
(iii) With respect to each Purchaser Benefit Plan, the Purchaser has made available to the Seller accurate and complete copies, if applicable, of: (i) all Purchaser Benefit Plan documents and agreements and related trust agreements or annuity Contracts (including any amendments, modifications or supplements thereto); (ii) all summary plan descriptions and material modifications thereto; (iii) the three (3) most recent Forms 5500, if applicable, and annual report, including all schedules thereto; (iv) the most recent annual and periodic accounting of plan assets; (v) the three (3) most recent nondiscrimination testing reports; (vi) the most recent determination letter received from the IRS, if any; (vii) the most recent actuarial valuation; and (viii) all material written communications between the Purchaser or any Subsidiary or any Purchaser Benefit Plan and any Governmental Authority and relating to a Purchaser Benefit Plan within six (6) years preceding the date of this Agreement.
(iv) With respect to each Purchaser Benefit Plan: (i) such Purchaser Benefit Plan has been administered and enforced in all material respects in accordance with its terms, the Code and ERISA; (ii) neither the Purchaser nor any Subsidiary nor any employee, officer or director thereof that is a fiduciary (under ERISA) with respect to such Purchaser Benefit Plan has breached any of its fiduciary responsibilities, obligations or duties imposed on it by ERISA; (iii) no Action is pending or threatened in writing (other than routine claims for benefits arising in the ordinary course of administration); business;
(ivc) nothing no benefit plan currently is under a governmental investigation or audit and, to the knowledge of ICP, no such investigation or audit is contemplated or under consideration;
(d) each benefit plan covers only current or former employees of ICP or its subsidiaries and their dependents or beneficiaries;
(e) no promise or commitment to increase benefits under any benefit plan (except pursuant to the express terms of the plan) or to adopt any additional benefit plan has been made;
(f) no event has occurred which could subject any person to any tax, penalty or fiduciary liability in connection with any plan that, individually or in the aggregate, has had or would be reasonably expected to have a Material Adverse Effect or would prevent or materially delay or limit the performance of this Agreement by ICP;
(g) there have been no withdrawals of surplus or contribution holidays in respect of such benefit plans, except as permitted by law and the terms of the benefit plans;
(h) ICP and its subsidiaries do not contribute to any multi-employer plan or multiple employer plans with respect to which there would be a liability of ICP or its subsidiaries on withdrawal from any Purchaser Benefit Plan such plan except for liability that neither, individually or in the aggregate, has subjected the Purchaser had or any Subsidiary to any material penalty under Section 502 of ERISA or Section 4975 of the Code; and (v) all contributions and premiums due through the Closing Date have been made in all material respects as required under ERISA or have been fully accrued in all material respects on the Purchaser Financials.
(v) No Purchaser Benefit Plan is, and neither the Purchaser or any Subsidiary or any of their respective ERISA Affiliates sponsors, maintains, contributes to, is required to contribute to, or otherwise has or could would reasonably be expected to have a Material Adverse Effect or would prevent or materially delay or limit the performance of this Agreement by ICP;
(i) ICP and its subsidiaries do not provide for any current medical or contingent Liability health benefits extending beyond termination of employment, except to the extent required by applicable law;
(j) neither ICP nor any of its subsidiaries is a party to any collective bargaining agreement or other agreement or understanding with a labour union or labour organization; there are no labour unions or other organizations representing, purporting to represent or attempting to represent, any employee of ICP or any of its subsidiaries; and
(k) the consummation of the transactions contemplated by this Agreement (alone or together with any other event) will not (i) entitle any person to any benefit under or with respect to, a “defined any benefit plan” , (as defined in Section 414(jii) accelerate the time of payment, vesting or funding of, or increase the Code)amount, a “multiemployer plan” (as defined in Section 3(37) of ERISA) any compensation or a “multiple employer plan” (as described in Section 413(c) of the Code) or is otherwise subject to Title IV of ERISA or Section 412 of the Code. To the Purchaser’s Knowledge, no Purchaser Benefit Plan will become a multiple employer plan with respect benefits due to any Purchaser Entity immediately after the Closing Date. Neither the Purchaser nor executive officer under any Subsidiary currently maintains or has ever maintainedbenefit plan, or is required currently (iii) accelerate the timing of payment, vesting or has ever been required funding of, or increase the amount, of any compensation or benefits due any person other than an executive officer under any benefit plan except for amounts that neither, individually or in the aggregate, have had or would be reasonably expected to contribute to have a Material Adverse Effect nor would prevent or otherwise participate in, a multiple employer welfare arrangement materially delay or voluntary employees’ beneficiary association as defined in Section 501(c)(9) of limit the Code. For purposes performance of this Agreement, “ERISA Affiliate” means, with respect to any Person, any Person or entity (whether or not incorporated) that is under common control or treated as one employer under Section 4001(b)(1) of ERISA or Section 414(b), (c), (m) or (o) of the CodeAgreement by ICP.
Appears in 2 contracts
Samples: Pre Acquisition Agreement (International Comfort Products Corp), Pre Acquisition Agreement (United Technologies Corp /De/)
Benefit Plans. (ia) Set forth on Schedule 3.19(a4.20(a) is a true and complete list of each material Benefit Plan of the Purchaser and its Subsidiaries a Target Company (each, a “Purchaser Company Benefit Plan”). With respect to each Purchaser Company Benefit Plan, there are no funded benefit obligations for which contributions have not been materially made or properly accrued and there are no material unfunded benefit obligations that have not been accounted for by reserves, or otherwise properly footnoted in accordance with GAAP on the Purchaser Company Financials. Except as set forth on Schedule 3.19(a), neither the Purchaser nor any Subsidiary No Target Company is or has in the past been a member of a “controlled group” for purposes of Section 414(b), (c), (m) or (o) of the Code other than with the Purchaser or another SubsidiaryCode, nor does the Purchaser or any Subsidiary Target Company have any Liability with respect to any collectively-bargained for plans, whether or not subject to the provisions of ERISA.
(iib) Each Purchaser Company Benefit Plan in all material respects is and has been operated at all times in compliance with all applicable Laws in all material respects, including ERISA and the Code. Each Purchaser Company Benefit Plan which is intended to be “qualified” within the meaning of Section 401(a) of the Code (i) has been determined by the IRS to be so qualified (or is based on a prototype plan which has received a favorable opinion letter) during the period from its adoption to the date of this Agreement and (ii) is funded through a its related trust has been determined to be exempt from taxation under Section 501(a) of the CodeCode or the Target Companies have requested an initial favorable IRS determination of qualification and/or exemption within the period permitted by applicable Law. To the Knowledge of the PurchaserCompany’s Knowledge, no fact exists which could adversely affect the qualified status of such Purchaser Company Benefit Plans or the exempt status of such trusts.
(iiic) With respect to each Purchaser Company Benefit PlanPlan which covers any current or former officer, director, consultant or employee (or beneficiary thereof) of a Target Company, the Company has provided to Purchaser has made available to the Seller accurate and complete copies, if applicable, of: (i) all Purchaser Company Benefit Plan documents and agreements and related trust agreements or annuity Contracts (including any amendments, modifications or supplements thereto); (ii) all summary plan descriptions and summary of material modifications thereto; (iii) the three (3) most recent Forms 5500, if applicable, and annual report, including all schedules thereto; (iv) the most recent annual and periodic accounting of plan assets; (v) the three (3) most recent nondiscrimination testing reports; (vi) the most recent determination letter received from the IRS, if any; (vii) the most recent actuarial valuation; and (viii) all material written communications between the Purchaser or any Subsidiary or any Purchaser Benefit Plan and with any Governmental Authority and relating to a Purchaser Benefit Plan within six the last three (63) years preceding the date of this Agreementyears.
(ivd) With respect to each Purchaser Company Benefit Plan: (i) such Purchaser Company Benefit Plan has been administered and enforced in all material respects in accordance with its terms, the Code and ERISA; (ii) neither the Purchaser nor any Subsidiary nor any employee, officer or director thereof that is a no breach of fiduciary (under ERISA) with respect to such Purchaser Benefit Plan duty has breached any of its fiduciary responsibilities, obligations or duties imposed on it by ERISAoccurred; (iii) no Action is pending pending, or to the Company’s Knowledge, threatened in writing (other than routine claims for benefits arising in the ordinary course of administration); (iv) nothing has occurred with respect to any Purchaser Benefit Plan that has subjected the Purchaser or any Subsidiary to any material penalty under no prohibited transaction, as defined in Section 502 406 of ERISA or Section 4975 of the Code, has occurred, excluding transactions effected pursuant to a statutory or administration exemption; and (v) all contributions and premiums due through the Closing Date have been made in all material respects as required under ERISA or have been fully accrued in all material respects on the Purchaser Company Financials.
(ve) No Purchaser Except as set forth on Schedule 4.20(e), no Company Benefit Plan is, and neither the Purchaser or any Subsidiary or any of their respective ERISA Affiliates sponsors, maintains, contributes to, is required to contribute to, or otherwise has or could reasonably be expected to have any current or contingent Liability under or with respect to, a “defined benefit plan” (as defined in Section 414(j) of the Code), a “multiemployer plan” (as defined in Section 3(37) of ERISA) or a “multiple employer plan” (as described in Section 413(c) of the Code) or is otherwise subject to Title IV of ERISA or Section 412 of the Code, and no Target Company has incurred any Liability or otherwise could have any Liability, contingent or otherwise, under Title IV of ERISA and no condition presently exists that is expected to cause such Liability to be incurred. To the Purchaser’s Knowledge, no Purchaser No Company Benefit Plan will become a multiple employer plan with respect to any Purchaser Entity Target Company immediately after the Closing Date. Neither the Purchaser nor any Subsidiary No Target Company currently maintains or has ever maintained, or is required currently or has ever been required to contribute to or otherwise participate in, a multiple employer welfare arrangement or voluntary employees’ beneficiary association as defined in Section 501(c)(9) of the Code.
(f) No arrangement exists pursuant to which a Target Company will be required to “gross up” or otherwise compensate any person because of the imposition of any excise tax on a payment to such person.
(g) With respect to each Company Benefit Plan which is a “welfare plan” (as described in Section 3(1) of ERISA): (i) no such plan provides medical or death benefits with respect to current or former employees of a Target Company beyond their termination of employment (other than coverage mandated by Law, which is paid solely by such employees); and (ii) there are no reserves, assets, surplus or prepaid premiums under any such plan. For purposes Each Target Company has complied in all material respects with the provisions of Section 601 et seq. of ERISA and Section 4980B of the Code.
(h) Except as set forth on Schedule 4.20(h), the consummation of the transactions contemplated by this AgreementAgreement and the Ancillary Documents will not: (i) entitle any individual to severance pay, unemployment compensation or other benefits or compensation (except as set forth on Schedule 4.19(a)); (ii) accelerate the time of payment or vesting, or increase the amount of any compensation due, or in respect of, any individual; or (iii) result in or satisfy a condition to the payment of compensation that would, in combination with any other payment, result in an “ERISA Affiliateexcess parachute payment” meanswithin the meaning of Section 280G of the Code. No Target Company has incurred any Liability for any Tax imposed under Chapter 43 of the Code or civil liability under Section 502(i) or (l) of ERISA.
(i) Except to the extent required by Section 4980B of the Code or similar state Law, no Target Company provides health or welfare benefits to any former or retired employee or is obligated to provide such benefits to any active employee following such employee’s retirement or other termination of employment or service.
(j) All Company Benefit Plans can be terminated at any time as of or after the Closing Date without resulting in any Liability to the Surviving Corporation or Purchaser or their respective Affiliates for any additional contributions, penalties, premiums, fees, fines, excise taxes or any other charges or liabilities, except for costs in the normal course related to termination of a Company Benefit Plan.
(k) Each Company Benefit Plan that is subject to Section 409A of the Code (each, a “Section 409A Plan”) as of the Closing Date is indicated as such on Schedule 4.20(k). No options or other equity-based awards have been issued or granted by the Company that are, or are subject to, a Section 409A Plan. Each Section 409A Plan has been administered in compliance, and is in documentary compliance, in all material respects, with the applicable provisions of Section 409A of the Code, the regulations thereunder and other official guidance issued thereunder. No Target Company has any obligation to any employee or other service provider with respect to any Person, Section 409A Plan that may be subject to any Person or entity (whether or not incorporated) that is under common control or treated as one employer Tax under Section 4001(b)(1) 409A of ERISA the Code. No payment to be made under any Section 409A Plan is, or to the Knowledge of the Company will be, subject to the penalties of Section 414(b), (c), (m) or (o409A(a)(1) of the Code. There is no Contract or plan to which any Target Company is a party or by which it is bound to compensate any employee, consultant or director for penalty taxes paid pursuant to Section 409A of the Code.
Appears in 2 contracts
Samples: Merger Agreement (Lakeshore Acquisition II Corp.), Agreement and Plan of Merger (Lakeshore Acquisition I Corp.)
Benefit Plans. (a) Schedule 4.6(a) lists: (i) Set forth on Schedule 3.19(aeach Employee Benefit Plan contributed to, sponsored or maintained by Seller as of the date hereof, or for which it has any Liability, in each case, for the benefit of any Prospective Employee; and (ii) is a true and complete list of each material Benefit Plan of the Purchaser and its Subsidiaries employment agreement, including any material individual benefit arrangement or policy (each, a “Purchaser Benefit Plan”). With respect to each Purchaser Benefit Plan, there are no funded benefit obligations for which contributions have not been materially made other than any arrangement or properly accrued and there are no material unfunded benefit obligations policy that have not been accounted for by reserves, or otherwise properly footnoted in accordance with GAAP on the Purchaser Financials. Except as set forth on Schedule 3.19(ais mandatory under applicable Legal Requirements), neither the Purchaser nor any Subsidiary or has in the past been a member of a “controlled group” for purposes of Section 414(b), (c), (m) or (o) of the Code other than with the Purchaser or another Subsidiary, nor does the Purchaser or any Subsidiary have any Liability with respect to any Prospective Employee (collectively, the “Seller Plans”). Seller has delivered to Purchaser, with respect to each Seller Plan, correct and complete copies, where applicable, of (i) the most recent Summary Plan Description (including all Summaries of Material Modification), and (ii) the most recent IRS determination or opinion letter applicable to any tax-bargained for plans, whether or not subject to the provisions of ERISAqualified plan from which Purchaser’s 401(k) Plan will accept an eligible rollover distribution.
(iib) Each Purchaser Benefit Plan Neither the execution and delivery of this Agreement nor the consummation of the Transactions will result in all material respects is and has been operated in compliance with all applicable Laws in all material respectsany payment (including severance, including ERISA and the Code. Each Purchaser Benefit Plan which is intended golden parachute, bonus or otherwise) becoming due to any Prospective Employee, other than any such payments to be borne by Seller, in each case assuming compliance by Purchaser and its applicable Affiliates with Article 7 (Employees). There is no amount paid or payable by Seller in connection with the Transactions (either solely as a result thereof or as a result of such Transactions in conjunction with any other event), that has resulted or would reasonably be expected to result, separately or in the aggregate, in the payment of any “qualifiedexcess parachute payment” within the meaning of Section 401(a) 280G of the Code (i) has been determined by the IRS to be so qualified (or is based on a prototype plan which has received a favorable opinion letter) during the period from its adoption to the date any corresponding provisions of this Agreement and (ii) is funded through a trust exempt from taxation under Section 501(a) of the Code. To the Knowledge of the Purchaserstate, no fact exists which could adversely affect the qualified status of such Purchaser Benefit Plans local or the exempt status of such trustsforeign Tax Law).
(iiic) With respect to each Purchaser Benefit Plan, the Purchaser has made available to the Neither Seller accurate and complete copies, if applicable, of: (i) all Purchaser Benefit Plan documents and agreements and related trust agreements nor any other Person that would be or annuity Contracts (including any amendments, modifications or supplements thereto); (ii) all summary plan descriptions and material modifications thereto; (iii) the three (3) most recent Forms 5500, if applicable, and annual report, including all schedules thereto; (iv) the most recent annual and periodic accounting of plan assets; (v) the three (3) most recent nondiscrimination testing reports; (vi) the most recent determination letter received from the IRS, if any; (vii) the most recent actuarial valuation; and (viii) all material written communications between the Purchaser or any Subsidiary or any Purchaser Benefit Plan and any Governmental Authority and relating to a Purchaser Benefit Plan within six (6) years preceding the date of this Agreement.
(iv) With respect to each Purchaser Benefit Plan: (i) such Purchaser Benefit Plan has been administered and enforced in all material respects in accordance considered a single employer with its terms, Seller under the Code and ERISA; (ii) neither the Purchaser nor or ERISA has at any Subsidiary nor any employee, officer or director thereof that is a fiduciary (under ERISA) with respect to such Purchaser Benefit Plan has breached any of its fiduciary responsibilities, obligations or duties imposed on it by ERISA; (iii) no Action is pending or threatened in writing (other than routine claims for benefits arising in the ordinary course of administration); (iv) nothing has occurred with respect to any Purchaser Benefit Plan that has subjected the Purchaser or any Subsidiary to any material penalty under Section 502 of ERISA or Section 4975 of the Code; and (v) all contributions and premiums due through the Closing Date have been made in all material respects as required under ERISA or have been fully accrued in all material respects on the Purchaser Financials.
(v) No Purchaser Benefit Plan is, and neither the Purchaser or any Subsidiary or any of their respective ERISA Affiliates sponsors, maintains, contributes time contributed to, is been required to contribute toto or had any Liability whatsoever (whether direct, indirect, contingent or otherwise has or could reasonably be expected otherwise) pursuant to have a plan subject to Title IV of ERISA, including any current or contingent Liability under or with respect to, a “defined benefit plan” (as defined in Section 414(j) of the Code), a “multiemployer plan” (as defined in Section 3(37) of ERISAERISA that in any such case could result in any Liability to Purchaser.
(d) or a “multiple employer plan” Each Seller Plan that is intended to be qualified under Section 401 (as described in Section 413(ca) of the Code) Code has received a favorable determination letter, or is otherwise subject entitled to Title IV of ERISA or Section 412 of rely on an opinion letter, from the Code. To the PurchaserUnited States Internal Revenue Service with respect to its initial qualification, and, to Seller’s Knowledge, no Purchaser Benefit fact or event has occurred since the date of such determination or opinion letter or letters that would reasonably be expected to adversely affect the qualified status of any such Seller Plan will become a multiple employer plan with respect to or the exempt status of any Purchaser Entity immediately after the Closing Date. Neither the Purchaser nor any Subsidiary currently maintains or has ever maintained, or is related trust.
(e) Except as required currently or has ever been required to contribute to or otherwise participate in, a multiple employer welfare arrangement or voluntary employees’ beneficiary association as defined in Section 501(c)(9) of the Code. For purposes of this Agreement, “ERISA Affiliate” means, with respect to any Person, any Person or entity (whether or not incorporated) that is under common control or treated as one employer under Section 4001(b)(1) 601 et seq. of ERISA ERISA, no Seller Plan covering Prospective Employees located in the United States provides material health, life or Section 414(b), (c), (m) disability insurance following retirement or (o) other termination of the Codeemployment.
Appears in 1 contract
Samples: Asset Purchase Agreement (Forma Therapeutics Holdings, Inc.,)
Benefit Plans. (ia) Set forth on Schedule 3.19(aSection 5.12(a) is of the Parent Disclosure Letter contains a true true, correct, and complete list of each material Benefit Parent Plan.
(b) Parent has provided or made available to the Company a current, accurate and complete copy of each material Parent Plan, or if such Parent Plan is not in written form, a written summary of all of the Purchaser and its Subsidiaries (each, a “Purchaser Benefit material terms of such Parent Plan”). With respect to each Purchaser Benefit Parent Plan, there are no funded benefit obligations for which contributions have not been materially made Parent has furnished or properly accrued and there are no material unfunded benefit obligations that have not been accounted for by reserves, or otherwise properly footnoted in accordance with GAAP on the Purchaser Financials. Except as set forth on Schedule 3.19(a), neither the Purchaser nor any Subsidiary or has in the past been a member of a “controlled group” for purposes of Section 414(b), (c), (m) or (o) of the Code other than with the Purchaser or another Subsidiary, nor does the Purchaser or any Subsidiary have any Liability with respect to any collectively-bargained for plans, whether or not subject to the provisions of ERISA.
(ii) Each Purchaser Benefit Plan in all material respects is and has been operated in compliance with all applicable Laws in all material respects, including ERISA and the Code. Each Purchaser Benefit Plan which is intended to be “qualified” within the meaning of Section 401(a) of the Code (i) has been determined by the IRS to be so qualified (or is based on a prototype plan which has received a favorable opinion letter) during the period from its adoption to the date of this Agreement and (ii) is funded through a trust exempt from taxation under Section 501(a) of the Code. To the Knowledge of the Purchaser, no fact exists which could adversely affect the qualified status of such Purchaser Benefit Plans or the exempt status of such trusts.
(iii) With respect to each Purchaser Benefit Plan, the Purchaser has made available to the Seller Company a current, accurate and complete copiescopy of, if to the extent applicable, of: (i) all Purchaser Benefit documents embodying or governing such Parent Plan documents and agreements and any related trust agreements agreement or annuity Contracts (including any amendmentsother funding instrument, modifications or supplements thereto); (ii) all summary plan descriptions and material modifications thereto; (iii) the three (3) most recent Forms 5500, if applicable, and annual report, including all schedules thereto; (iv) the most recent annual and periodic accounting of plan assets; (v) the three (3) most recent nondiscrimination testing reports; (vi) the most recent determination letter received from of the IRS, if any; (viiiii) the most recent actuarial valuation; any summary plan description, summary of material modifications, and (viii) all other similar material written communications between (or a written description of any material oral communications) to the Purchaser employees of Parent or any Subsidiary or of its Subsidiaries concerning the extent of the benefits provided under a Parent Plan, (iv) all non-routine correspondence to and from any Purchaser Benefit Plan governmental agency, and any Governmental Authority (v) for the three most recent years and relating to a Purchaser Benefit Plan within six as applicable (6A) years preceding the date of this AgreementForm 5500 and attached schedules, (B) audited financial statements, (C) nondiscrimination testing results and (D) actuarial valuation reports.
(ivc) With Neither Parent, its Subsidiaries or any member of their Controlled Group has ever sponsored, maintained, contributed to, or been required to contribute to or incurred any liability (contingent or otherwise) with respect to each Purchaser Benefit Planto: (i) such Purchaser Benefit Plan has been administered and enforced in all material respects in accordance with its termsa Multiemployer Plan, the Code and ERISA; (ii) neither the Purchaser nor any Subsidiary nor any employee, officer or director thereof an employee benefit plan that is a fiduciary (under ERISA) with respect to such Purchaser Benefit Plan has breached any of its fiduciary responsibilities, obligations or duties imposed on it by ERISA; (iii) no Action is pending or threatened in writing (other than routine claims for benefits arising in the ordinary course of administration); (iv) nothing has occurred with respect to any Purchaser Benefit Plan that has subjected the Purchaser or any Subsidiary to any material penalty under Section 502 of ERISA or Section 4975 of the Code; and (v) all contributions and premiums due through the Closing Date have been made in all material respects as required under ERISA or have been fully accrued in all material respects on the Purchaser Financials.
(v) No Purchaser Benefit Plan is, and neither the Purchaser or any Subsidiary or any of their respective ERISA Affiliates sponsors, maintains, contributes to, is required to contribute to, or otherwise has or could reasonably be expected to have any current or contingent Liability under or with respect to, a “defined benefit plan” (as defined in Section 414(j) of the Code), a “multiemployer plan” (as defined in Section 3(37) of ERISA) or a “multiple employer plan” (as described in Section 413(c) of the Code) or is otherwise subject to Title IV of ERISA or Section 412 of the Code. To the Purchaser’s KnowledgeCode or Section 302 of ERISA, no Purchaser Benefit Plan will become a (iii) any “multiple employer plan with respect to any Purchaser Entity immediately after the Closing Date. Neither the Purchaser nor any Subsidiary currently maintains or has ever maintained, or is required currently or has ever been required to contribute to or otherwise participate in, a multiple employer welfare arrangement or voluntary employees’ beneficiary association plan” as defined in Section 501(c)(9413 of the Code or Section 210 of ERISA, (iv) a “funded welfare benefit plan” within the meaning of Section 419 of the Code or (v) any “multiple employer welfare arrangement” (as such term is defined in Section 3(40) of ERISA), and neither the Parent nor any member of their Controlled Group has ever incurred any material liability for a “prohibited transaction” under Section 406 of ERISA or Section 4975 of the Code that has not been paid in full.
(d) With respect to the Parent Plans:
(i) each Parent Plan is and has been established, operated and administered in all material respects with its terms and materially complies in form and in operation with the applicable provisions of ERISA and the Code and all other applicable legal requirements;
(ii) each Parent Plan intended to be qualified under Section 401(a) of the Code has received a favorable determination, advisory and/or opinion letter, as applicable, from the IRS that it is so qualified and nothing has occurred to the knowledge of Parent since the date of such letter that would reasonably be expected to cause the loss of the sponsor’s ability to rely upon such letter, and nothing has occurred to the knowledge of Parent that would reasonably be expected to result in the loss of the qualified status of such Parent Plan;
(iii) there is no material Action (including any investigation, audit or other administrative proceeding) by the Department of Labor, the PBGC, the IRS or any other Governmental Entity or by any plan participant or beneficiary pending, or to the knowledge of Parent, threatened, relating to the Parent Plans, any fiduciaries thereof with respect to their duties to Parent Plans or the assets of any of the trusts under any of Parent Plans (other than routine claims for benefits) and, to the knowledge of the Parent, there is no reasonable basis for any such Action;
(iv) none of the Parent Plans currently provides, or 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 COBRA, and neither Parent nor any member 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 Parent (either individually or to Parent 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) all payments and/or contributions required to have been timely made with respect to all Parent Plans either have been made or have been accrued in accordance with the terms of the applicable Parent Plan and applicable Law;
(vi) each Parent Plan satisfies in all material respects the minimum coverage, affordability and non-discrimination requirements under Section 4980H of the Code to the extent required to avoid any adverse Tax consequences thereunder;
(vii) each Parent Plan is subject exclusively to United States Law; and
(viii) the execution and delivery of this Agreement, the Parent Stockholder Approval, and the consummation of the Merger will not, either alone or in combination with any other event, (A) entitle any current or former employee, officer, director or consultant of Parent or any of its Subsidiaries to severance pay, unemployment compensation or any other similar termination payment, or (B) accelerate the time of payment or vesting, or increase the amount of or otherwise enhance any benefit due any such employee, officer, director or consultant.
(e) Neither Parent nor any of its Subsidiaries is a party to any agreement, contract, arrangement or plan (including any Parent 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. For purposes There is no agreement, plan or other arrangement to which Parent or any of this Agreement, “ERISA Affiliate” means, its Subsidiaries is a party or by which Parent or any of its Subsidiaries is otherwise bound to compensate any person in respect of Taxes or other liabilities incurred with respect to any Person, any Person Section 409A or entity (whether or not incorporated) that is under common control or treated as one employer under Section 4001(b)(1) of ERISA or Section 414(b), (c), (m) or (o) 4999 of the Code.
(f) Each Parent Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A of the Code (or any comparable or similar provision of state, local, or foreign Law) complies in both form and operation in all material respects with the requirements of Section 409A of the Code (or any comparable or similar provision of state, local, or foreign Law) and all applicable IRS guidance issued with respect thereto (and has so complied for the entire period during which Section 409A of the Code has applied to such Parent Plan) so that no amount paid or payable pursuant to any such Parent Plan is subject to any additional Tax or interest under Section 409A of the Code (or any comparable or similar provision of state, local, or foreign Law).
(g) No Parent Plan provides major medical health or long-term disability benefits that are not fully insured through an insurance contract.
Appears in 1 contract
Samples: Merger Agreement (Allovir, Inc.)
Benefit Plans. (ia) Set Schedule 4.11 sets forth on Schedule 3.19(a) is a true and complete list of each material Benefit Plan of the Purchaser and its Subsidiaries (each, a “Purchaser Benefit LED Employee Plan”). With respect to each Purchaser Benefit Plan, there are no funded benefit obligations for which contributions have not been materially made or properly accrued and there are no material unfunded benefit obligations that have not been accounted for by reserves, or otherwise properly footnoted in accordance with GAAP on the Purchaser Financials. Except as set forth on Schedule 3.19(a), neither the Purchaser nor any Subsidiary or has in the past been a member of a “controlled group” for purposes of Section 414(b), (c), (m) or (o) of the Code other than with the Purchaser or another Subsidiary, nor does the Purchaser or any Subsidiary have any Liability with respect to any collectively-bargained for plans, whether or not subject to the provisions of ERISA.
(iib) Each Purchaser Benefit Plan in all material respects is and has been operated in compliance with all applicable Laws in all material respects, including ERISA and the Code. Each Purchaser Benefit Plan which is intended to be “qualified” within the meaning of Section 401(a) of the Code (i) has been determined by the IRS to be so qualified (or is based on a prototype plan which has received a favorable opinion letter) during the period from its adoption to the date of this Agreement and (ii) is funded through a trust exempt from taxation under Section 501(a) of the Code. To the Knowledge of the Purchaser, no fact exists which could adversely affect the qualified status of such Purchaser Benefit Plans or the exempt status of such trusts.
(iii) With respect to each Purchaser Benefit Plan, the Purchaser has made available to the Seller accurate and complete copies, if applicable, of: (i) all Purchaser Benefit Plan documents and agreements and related trust agreements or annuity Contracts (including any amendments, modifications or supplements thereto); (ii) all summary plan descriptions and material modifications thereto; (iii) the three (3) most recent Forms 5500, if applicable, and annual report, including all schedules thereto; (iv) the most recent annual and periodic accounting of plan assets; (v) the three (3) most recent nondiscrimination testing reports; (vi) the most recent determination letter received from the IRS, if any; (vii) the most recent actuarial valuation; and (viii) all material written communications between the Purchaser or any Subsidiary or any Purchaser Benefit Plan and any Governmental Authority and relating to a Purchaser Benefit Plan within six (6) years preceding the date of this Agreement.
(iv) With respect to each Purchaser Benefit Plan: (i) such Purchaser Benefit LED Employee Plan has been established, operated and administered and enforced in all material respects in accordance with its terms, and each such LED Employee Plan is in material compliance with all applicable Laws. All contributions (including all employer contributions and employee salary reduction contributions) and premiums required to have been paid by LED to any LED Employee Plan under the Code terms of any such LED Employee Plan or its related trust, insurance contract or other funding arrangement, or pursuant to any applicable law have been paid within the time prescribed by any such LED Employee Plan, trust, contract or arrangement, or applicable Law. All contributions and premiums for any period ending on or before the Closing Date that are not yet due have been made to each such LED Employee Plan or its related trust, insurance contract or other funding arrangement.
(c) No LED Employee Plan is (i) a “multiple employer plan” for purposes of Sections 4063 or 4064 of ERISA; , (ii) neither subject to Section 412 of the Purchaser nor any Subsidiary nor any employeeCode or Section 302 or Title IV of ERISA, officer or director thereof that is a fiduciary (under ERISA) with respect to such Purchaser Benefit Plan has breached any of its fiduciary responsibilities, obligations or duties imposed on it by ERISA; (iii) no Action is pending or threatened in writing (other than routine claims for benefits arising in the ordinary course of administration); (iv) nothing has occurred with respect to any Purchaser Benefit Plan that has subjected the Purchaser or any Subsidiary to any material penalty under Section 502 of ERISA or Section 4975 of the Code; and (v) all contributions and premiums due through the Closing Date have been made in all material respects as required under ERISA or have been fully accrued in all material respects on the Purchaser Financials.
(v) No Purchaser Benefit Plan is, and neither the Purchaser or any Subsidiary or any of their respective ERISA Affiliates sponsors, maintains, contributes to, is required to contribute to, or otherwise has or could reasonably be expected to have any current or contingent Liability under or with respect to, a “defined benefit plan” (as defined in Section 414(j) of the Code), a “multiemployer plan” (as defined in within the meaning of Section 3(374001(a)(3) of ERISA), (iv) or a “multiple employer plan” (as described in intended to satisfy the requirements of Section 413(c403(a) of the Code) or is otherwise subject to Title IV of ERISA or Section 412 of the Code. To the Purchaser’s Knowledge, no Purchaser Benefit Plan will become a multiple employer plan with respect to any Purchaser Entity immediately after the Closing Date. Neither the Purchaser nor any Subsidiary currently maintains or has ever maintained, or is required currently or has ever been required (v) intended to contribute to or otherwise participate in, a multiple employer welfare arrangement or voluntary employees’ beneficiary association as defined in Section 501(c)(9) of the Code. For purposes of this Agreement, “ERISA Affiliate” means, with respect to any Person, any Person or entity (whether or not incorporated) that is under common control or treated as one employer be qualified under Section 4001(b)(1) of ERISA or Section 414(b), (c), (m) or (o401(a) of the Code.
(d) Neither LED nor any LED ERISA Affiliate has incurred any liability (including as a result of any indemnification obligation) under Title I or Title IV of ERISA for which LED could be liable. No event has occurred, no condition exists, and there are no pending or, to the Knowledge of LED, threatened claims by or on behalf of any LED Employee Plan by any person covered thereby (other than ordinary claims for benefits submitted by participants or beneficiaries) or any Governmental Authority that would subject LED, either directly or by reason of affiliation with an LED ERISA Affiliate, to any material Tax, fine, Encumbrance, or other liability imposed by ERISA, the Code or other applicable Law. No asset of LED is subject to any Encumbrance under ERISA or the Code.
(e) With respect to each LED Employee Plan, LED has provided or made available to LSG true and complete copies of: (i) such LED Employee Plan, if written, or a description of such LED Employee Plan, if not written, and (ii) to the extent applicable to such LED Employee Plan: all trust agreements, insurance contracts or other funding arrangements; the three most recent Forms 5500 required to have been filed with the IRS and all schedules thereto; all current summary plan descriptions, all material communications received from or sent to the IRS or the Department of Labor (including a written description of any oral communication); and all amendments and modifications to any such document.
(f) No LED Employee Plan exists that could result in the payment to any Continued Employee of any money or other property (including any severance payments, bonus of other compensation) or in the acceleration of any other rights or benefits to any Continued Employee as a result of the transactions contemplated herein.
Appears in 1 contract
Samples: Exchange and Contribution Agreement (LED Holdings, LLC)
Benefit Plans. (ia) Set forth on Schedule 3.19(a) is a true sets forth an accurate and complete list of each material Benefit Plan Plans in which the employees of Seller participate (the “Seller Plans”), and Purchaser has been provided with accurate and complete copies or descriptions of the Purchaser and its Subsidiaries Seller Plans.
(each, a “Purchaser Benefit Plan”). With respect to each Purchaser Benefit Plan, there are no funded benefit obligations for which contributions have not been materially made or properly accrued and there are no material unfunded benefit obligations that have not been accounted for by reserves, or otherwise properly footnoted in accordance with GAAP on the Purchaser Financials. b) Except as set forth on in Schedule 3.19(a3.19(b), neither the Purchaser nor any Subsidiary or has in the past been a member of a “controlled group” for purposes of Section 414(b), (c), (m) or (o) none of the Code other than with the Seller Plans are in violation of any law, statute or rule of any Governmental Entity. Purchaser shall not be liable for any acts of Seller or another Subsidiary, nor does the Purchaser its employees or any Subsidiary have any Liability agents with respect to any collectively-bargained for plans, Seller Plan prior to and including the Closing Date. Benefits under Seller Plans are as represented in the governing documents and have not been increased or modified (whether written or not subject written) subsequent to the provisions dates of ERISAsuch documents. There has been no communication to any employee or former employee of any intention or commitment to modify any Seller Plan or to establish or implement any other Benefit Plan. Full payment has been made of all amounts that Seller has been required to have paid as contributions to any Seller Plan or other employee benefit arrangement under applicable law or under the terms of any such plan or arrangement.
(iic) Each Purchaser Benefit Plan Schedule 3.19(c) lists the employees of Seller employed in the Business who are on sick leave, personal absence or other leave as of the date hereof.
(d) No employee or former employee of Seller will become entitled to any bonus, retirement, severance, job security or similar benefit or enhanced benefit or any fee or payment of any kind solely as a result of the transactions contemplated hereby.
(e) Seller has complied in all material respects is and with the requirements of COBRA. Seller has been operated in compliance with all applicable Laws in all material respects, including ERISA no obligation or liability to provide post-employment welfare benefits to any current or former employee of the Business (other than as required by COBRA).
(f) With respect to the Business and the Code. Each Purchaser Benefit Plan which Acquired Assets, Seller has not made any payments, is intended not obligated to make any payments, and is not a party to any agreement that could obligate it to make any payments, that will not be “qualified” within the meaning of Section 401(afully deductible under Sections 162(m) or 280G of the Code (i) has been determined by the IRS to be so qualified (or is based on a prototype plan which has received a favorable opinion letter) during the period from its adoption to the date any similar provision of this Agreement and (ii) is funded through a trust exempt from taxation under Section 501(a) of the Code. To the Knowledge of the Purchaserforeign, no fact exists which could adversely affect the qualified status of such Purchaser Benefit Plans state or the exempt status of such trustslocal law).
(iiig) With respect to each Purchaser Benefit Plan, the Purchaser has made available to the Neither Seller accurate and complete copies, if applicable, of: (i) all Purchaser Benefit Plan documents and agreements and related trust agreements or annuity Contracts (including any amendments, modifications or supplements thereto); (ii) all summary plan descriptions and material modifications thereto; (iii) the three (3) most recent Forms 5500, if applicable, and annual report, including all schedules thereto; (iv) the most recent annual and periodic accounting of plan assets; (v) the three (3) most recent nondiscrimination testing reports; (vi) the most recent determination letter received from the IRS, if any; (vii) the most recent actuarial valuation; and (viii) all material written communications between the Purchaser or any Subsidiary or any Purchaser Benefit Plan and any Governmental Authority and relating to a Purchaser Benefit Plan within six (6) years preceding the date of this Agreement.
(iv) With respect to each Purchaser Benefit Plan: (i) such Purchaser Benefit Plan has been administered and enforced in all material respects in accordance with its terms, the Code and ERISA; (ii) neither the Purchaser nor any Subsidiary nor any employeemember of Seller’s controlled group, officer or director thereof that is a fiduciary (under ERISA) with respect to such Purchaser Benefit Plan has breached any of its fiduciary responsibilities, obligations or duties imposed on it by ERISA; (iii) no Action is pending or threatened in writing (other than routine claims for benefits arising in the ordinary course of administration); (iv) nothing has occurred with respect to any Purchaser Benefit Plan that has subjected the Purchaser or any Subsidiary to any material penalty under Section 502 of ERISA or Section 4975 of the Code; and (v) all contributions and premiums due through the Closing Date have been made in all material respects as required under ERISA or have been fully accrued in all material respects on the Purchaser Financials.
(v) No Purchaser Benefit Plan is, and neither the Purchaser or any Subsidiary or any of their respective ERISA Affiliates sponsors, maintains, contributes to, is required to contribute to, or otherwise has or could reasonably be expected to have any current or contingent Liability under or with respect to, a “defined benefit plan” (as defined in Section 414(j) 414 of the Code), (i) maintains or has ever maintained (A) a “multiemployer plan” (as defined in Section 3(37) of ERISA), (B) or a “multiple employer plan” (as described in Section 413(c) of the Code) or is otherwise an employee benefit plan subject to Title IV VII of ERISA (other than a defined contribution plan), or (C) a plan to which Section 412 of the Code. To the Purchaser’s Knowledge, no Purchaser Benefit Plan will become a multiple employer plan with respect to any Purchaser Entity immediately after the Closing Date. Neither the Purchaser nor any Subsidiary currently maintains or has ever maintainedCode applies, or is required currently or (ii) has ever been required to contribute to or otherwise participate engaged in, within the last five years, a multiple employer welfare arrangement or voluntary employees’ beneficiary association as defined transaction described in Section 501(c)(9) 4069 of the Code. For purposes of this Agreement, “ERISA Affiliate” means, with respect to any Person, any Person or entity (whether or not incorporated) that is under common control or treated as one employer under Section 4001(b)(1) of ERISA or Section 414(b), (c), (m) or (o) of the CodeERISA.
Appears in 1 contract
Benefit Plans. Except as set forth in the Disclosure Schedule:
(ia) Set forth on Schedule 3.19(a) Neither the Company nor any Subsidiary sponsors, maintains or contributes to, or has at any time ever sponsored, maintained, contributed to or been required to contribute to any Pension Plan, including, without limitation, solely for purposes of this subsection, a plan excluded from coverage by Section 4 of ERISA and, including without limitation any such Pension Plan which is a true and complete list "Multiemployer Plan" within the meaning of each Section 4001(a)(3) of ERISA. Each such Pension Plan is in compliance in all material Benefit Plan respects with the applicable provisions of ERISA for which deadlines for compliance have passed, the applicable provisions of the Purchaser and its Subsidiaries (each, a “Purchaser Benefit Plan”). With respect to each Purchaser Benefit Plan, there are no funded benefit obligations Code for which contributions deadlines of compliance have not been materially made passed and all other Applicable Law. No Pension Plan is subject to Title IV of ERISA or properly accrued to Section 412 of the Code.
(b) Neither the Company nor any Subsidiary has ceased operations at any facility or withdrawn from any Pension Plan or otherwise acted or omitted to act in a manner which could subject it to liability under Section 4062, Section 4063, Section 4064 or Section 4069 of ERISA and there are no facts of circumstances which present a material unfunded benefit obligations that have not been accounted for risk of giving rise to any liability of the Company or any Subsidiary to the Pension Benefit Guaranty Corporation ("PBGC") under Title IV of ERISA or which could reasonably be anticipated to result in any claims being made against Parent, a Subsidiary or the Company by reservesthe PBGC. Neither the Company nor any Subsidiary has incurred any withdrawal liability (including without limitation any contingent or secondary withdrawal liability) within the meaning of Section 4201 and Section 4204 of ERISA to any Multiemployer Plan. Neither the Company nor any Subsidiary has, with respect to any Pension Plan which is a Multiemployer Plan, suffered or otherwise caused a "complete withdrawal" or a "partial withdrawal," as such terms are defined respectively in Sections 4201, 4203, 4204 and 4205 of ERISA. The Company and the Subsidiaries, collectively and individually, had no liability to any such Multiemployer Plan in the event of a complete or partial withdrawal therefrom as of the close of the most recent fiscal year of any such Multi-employer Plan ended prior to the date hereof.
(c) Neither the Company nor any Subsidiary sponsors, maintains, contributes to, or otherwise properly footnoted has at any time ever sponsored, maintained, contributed to, or been required to contribute to any Welfare Plan, whether insured or otherwise, and any such Welfare Plan maintained by the Company is in accordance compliance in all material respects with GAAP on the Purchaser Financials. provisions of ERISA and all other Applicable Laws, including without limitation Code Section 4980B. Neither the Company nor any Subsidiary has established or contributed to any "voluntary employees' beneficiary association" within the meaning of Section 501(c)(9) of the Code.
(d) Except as set forth on Schedule 3.19(a)the Disclosure Schedule, neither the Purchaser Company nor any Subsidiary maintains or has in contributes to any Benefit Plans.
(e) Neither any Benefit Plan nor any trust created or insurance contract issued thereunder nor any trustee or administrator thereof nor any officer, director or employee of the past been a member of a “controlled group” for purposes Company or any Subsidiary, custodian or any other "disqualified person" within the meaning of Section 414(b), (c), (m) or (o4975(e)(2) of the Code other than with Code, or "party in interest" within the Purchaser or another Subsidiarymeaning of Section 3(14) of ERISA, nor does the Purchaser or any Subsidiary have any Liability with respect to any collectively-bargained for planssuch Benefit Plans or any such trust or insurance contract or any trustee, custodian or administrator thereof, or any disqualified person, party in interest or person or entity dealing with such Benefit Plans or any such trust, insurance contract or any trustee has engaged in any conduct that could reasonably be expected to subject the Company or any Subsidiary to a tax or penalty on prohibited transactions imposed by Section 4975 of the Code or to a civil penalty imposed by Section 502 of ERISA. There are no facts or circumstances which could subject the Company or any Subsidiary to any excise tax under Section 4972 or Sections 4976 through 4980, both inclusive, of the Code. The Company has complied in all material respects with the requirements of COBRA with respect to each Welfare Plan which is a Group Health Plan and there are no facts or circumstances which could subject the Company or any Subsidiary to any excise tax under Section 4980B of the Code.
(f) Full payment has been made of all amounts which the Company or any Subsidiary is required, under Applicable Law, with respect to any Benefit Plan, or any agreement relating to any Benefit Plan, to have paid as a contribution thereto. No accumulated funding deficiency (as defined in Section 302 of ERISA and Section 412 of the Code), whether or not waived, exists with respect to any Pension Plan. Neither the Company nor any Subsidiary sponsors, maintains or contributes to, or has ever sponsored, maintained or contributed to or been required to contribute to, any Pension Plan subject to the provisions Part 3 of ERISA.
(iiTitle I of ERISA or Section 412(n) Each Purchaser Benefit Plan in all material respects is and has been operated in compliance with all applicable Laws in all material respects, including ERISA and of the Code. Each Purchaser The Company and each Subsidiary has made adequate provisions for reserves, to the extent required by GAAP, to meet contributions which have not been made because they are not yet due under the terms of any Benefit Plan or related agreements. All Pension Plans which is intended to be “qualified” within the meaning Company or a Subsidiary operates as plans that are qualified under the provisions of Section 401(a) of the Code (isatisfy in all material respects the requirements of Section 401(a) has been determined by and all other sections of the IRS to be so qualified (or is based on a prototype plan which has received a favorable opinion letter) during the period from its adoption to the date of this Agreement and (ii) is funded through a trust exempt from taxation under Code incorporated therein, including without limitation Section 501(a401(k) of the Code; and the IRS has issued favorable determination letters with respect to all Pension Plans and, to the Company's knowledge, nothing has occurred since the issuance of any such letters that present a material risk of adversely affecting such favorable determination. To There will be no change on or before Closing in the Knowledge operation of any Benefit Plan or any documents with respect thereto which will result in a material increase in the benefit liabilities under such plans, except as may be required by Applicable Law or the terms of the Purchaser, no fact exists which could adversely affect the qualified status of such Purchaser Benefit Plans or the exempt status of such trustsBenefits Plan.
(iiig) With The Company and each Subsidiary has complied with the reporting and disclosure obligations with respect to each Purchaser the Benefit Plans imposed by Title I of ERISA or other Applicable Law.
(h) There are no pending or, to the Company's knowledge, threatened claims, suits or other proceedings against the Company or any Subsidiary or any other party by present or former employees of the Company or any Subsidiary, plan participants, beneficiaries or spouses of any of the above, including without limitation claims against the assets of any trust, involving any Benefit Plan, or any rights or benefits thereunder, other than the Purchaser ordinary and usual claims for benefits by participants or beneficiaries.
(i) The transactions contemplated by this Agreement do not, by themselves, result in, and are not a condition to, the acceleration or accrual, vesting, funding or payment of any contribution or benefit under any Benefit Plan.
(j) No action or omission of the Company or any Subsidiary or any director, officer, employee, or agent thereof in any way restricts, impairs or prohibits Parent or the Company or any Subsidiary or any successor from amending, merging, or terminating any Benefit Plan in accordance with the express terms of any such plan and Applicable Law.
(k) The Disclosure Schedule lists, and the Company has made available delivered to the Seller accurate Parent, true and complete copies, if applicable, copies of: (i) all Purchaser Benefit Plan documents and agreements Plans and related trust agreements or annuity Contracts (including other agreements or contracts evidencing any amendments, modifications or supplements funding vehicle with respect thereto); (ii) the most recent annual reports on Treasury Form 5500, including all summary plan descriptions schedules and material modifications attachments thereto, with respect to any Benefit Plan for which such a report is required; (iii) the three (3) most recent Forms 5500, if applicable, and annual report, including all schedules theretoactuarial reports with respect to any Pension Plan that is a "defined benefit plan" within the meaning of Section 414(j) of the Code; (iv) the most recent annual and periodic accounting form of summary plan assetsdescription, including any summary of material modifications thereto or other modifications communicated to participants, currently in effect with respect to each Benefit Plan; (v) the three (3) most recent nondiscrimination testing reports; (vi) the most recent determination letter received from with respect to each Pension Plan intended to qualify under Section 401(a) of the Code and the full and complete application therefor submitted to the IRS, if any; (vii) the most recent actuarial valuation; and (viiivi) all professional opinions, material written communications between internal memoranda, material correspondence with regulatory authorities and administrative policies, manuals, interpretations and the Purchaser or any Subsidiary or any Purchaser Benefit Plan and any Governmental Authority and relating to a Purchaser Benefit Plan within six (6) years preceding the date of this Agreement.
(iv) With like with respect to each Purchaser Benefit Plan: (i) such Purchaser Benefit Plan has been administered and enforced in all material respects in accordance with its terms, the Code and ERISA; (ii) neither the Purchaser nor any Subsidiary nor any employee, officer or director thereof that is a fiduciary (under ERISA) with respect to such Purchaser Benefit Plan has breached any of its fiduciary responsibilities, obligations or duties imposed on it by ERISA; (iii) no Action is pending or threatened in writing (other than routine claims for benefits arising in the ordinary course of administration); (iv) nothing has occurred with respect to any Purchaser Benefit Plan that has subjected the Purchaser or any Subsidiary to any material penalty under Section 502 of ERISA or Section 4975 of the Code; and (v) all contributions and premiums due through the Closing Date have been made in all material respects as required under ERISA or have been fully accrued in all material respects on the Purchaser Financials.
(v) No Purchaser Benefit Plan is, and neither the Purchaser or any Subsidiary or any of their respective ERISA Affiliates sponsors, maintains, contributes to, is required to contribute to, or otherwise has or could reasonably be expected to have any current or contingent Liability under or with respect to, a “defined benefit plan” (as defined in Section 414(j) of the Code), a “multiemployer plan” (as defined in Section 3(37) of ERISA) or a “multiple employer plan” (as described in Section 413(c) of the Code) or is otherwise subject to Title IV of ERISA or Section 412 of the Code. To the Purchaser’s Knowledge, no Purchaser Benefit Plan will become a multiple employer plan with respect to any Purchaser Entity immediately after the Closing Date. Neither the Purchaser nor any Subsidiary currently maintains or has ever maintained, or is required currently or has ever been required to contribute to or otherwise participate in, a multiple employer welfare arrangement or voluntary employees’ beneficiary association as defined in Section 501(c)(9) of the Code. For purposes of this Agreement, “ERISA Affiliate” means, with respect to any Person, any Person or entity (whether or not incorporated) that is under common control or treated as one employer under Section 4001(b)(1) of ERISA or Section 414(b), (c), (m) or (o) of the Code.
Appears in 1 contract
Samples: Merger Agreement (American Medical Systems Holdings Inc)
Benefit Plans. (ia) Set Schedule 2.21 hereto sets forth on Schedule 3.19(aall employee benefit plans and arrangements (including plans described in Section 3(3) is a true and complete list of each material Benefit Plan of the Purchaser and its Subsidiaries Employee Retirement Income Security Act of 1974, as amended (each, a “Purchaser Benefit PlanERISA”). ) currently maintained by the Company or any Subsidiary for the general benefit of their employees, or previously maintained by the Company or any Subsidiary for the general benefit of their employees with respect to which the Company or any Subsidiary has any liability (the “Benefit Plans”).
(b) With respect to each Purchaser Benefit Plan, there are no funded benefit obligations for which contributions have not been materially the Company has made or properly accrued available to the Buyer true and there are no complete copies of the following documents, if applicable: (i) any and all plan documents and agreements, and all amendments thereto; (ii) any and all outstanding summary plan descriptions and material unfunded benefit obligations that have not been accounted for by reservesmodifications thereto; (iii) the most recently filed IRS Form 5500 annual report; (iv) the most recent determination letter received from the Internal Revenue Service with respect to each Benefit Plan intended to qualify under Section 401 of the Internal Revenue Code of 1986, or otherwise properly footnoted in accordance with GAAP on as amended (the Purchaser Financials. “Code”), and (v) the most recent annual and periodic accounting of plan assets.
(c) Except as set forth on Schedule 3.19(a)2.21, neither with respect to each Benefit Plan: (i) such plan has been administered in accordance with its terms and all Legal Requirements in all material respects; (ii) no breach of fiduciary duty has occurred with respect to which the Purchaser nor Company, any Subsidiary or has in any Benefit Plan could reasonably be expected to have any material liability; (iii) no material disputes nor any audits by any Governmental Authority are pending or, to the past been a member knowledge of a the Company, threatened; (iv) no non-exempt “controlled groupprohibited transaction” for purposes (within the meaning of either Section 414(b), (c), (m) or (o4975(c) of the Code other than with the Purchaser or another Subsidiary, nor does the Purchaser or any Subsidiary have any Liability Section 406 of ERISA) has occurred with respect to which the Company, any collectively-bargained for plans, whether Subsidiary or not any Benefit Plan would have any material liability; and (v) no Benefit Plan is subject to Title IV of ERISA or Section 302 of ERISA or Section 412 of the provisions of ERISACode.
(d) Except as set forth on Schedule 2.21, the consummation of the transactions contemplated by this Agreement will not (i) accelerate the time of payment or vesting under any Benefit Plan or (ii) Each Purchaser increase the amount of compensation or benefits due to any individual under any Benefit Plan.
(e) To the knowledge of the Company, no fact or event has occurred since the date of any IRS determination letter referred to above in Section 2.21(b)(iv) for any Benefit Plan in all material respects is and has been operated in compliance with all applicable Laws in all material respects, including ERISA and the Code. Each Purchaser Benefit Plan which is intended to be “qualified” within the meaning of Section 401(a) of the Code (i) has been determined by that would materially and adversely affect the IRS ability of the Company or any Subsidiary to be so qualified (or is based rely on a prototype plan which has received a favorable opinion such determination letter) during . None of the period from its adoption Benefit Plans are intended to satisfy the date requirements of this Agreement and (ii) is funded through a trust exempt from taxation under Section 501(a501(c)(9) of the Code. To the Knowledge of the Purchaser, no fact exists which could adversely affect the qualified status of such Purchaser Benefit Plans or the exempt status of such trusts.
(iiif) With respect Except as set forth on Schedule 2.21(f), no Benefit Plan provides medical, surgical, hospitalization, death or similar benefits (whether or not insured) for employees or former employees of the Company for periods extended beyond their retirement or other termination of service other than coverage mandated by any Legal Requirement.
(g) The terms of each of the Benefit Plans which is a “nonqualified deferred compensation plan” within the meaning of Section 409A of the Code (and associated Treasury Department guidance, including the applicable requirements of all transition guidance (collectively, “Guidance”)) comply with Section 409A of the Code (and associated Guidance), and each such “nonqualified deferred compensation plan” has been operated in compliance with Section 409A of the Code (and associated Guidance). Neither the Company nor any Subsidiary or ERISA Affiliate has any obligation to each Purchaser indemnify any participant of any Benefit Plan for any taxes imposed under Section 409A of the Code.
(h) To the extent permitted by applicable law and the applicable Benefit Plan, each Benefit Plan can be amended or terminated at any time, without consent from any other party and without liability other than for benefits accrued as of the Purchaser has made available to the Seller accurate and complete copies, if applicable, of: date of such amendment or termination (other than charges incurred as a result of such termination).
(i) all Purchaser Benefit Plan documents and agreements and related trust agreements or annuity Contracts (including None of the Company, any amendmentsSubsidiary, modifications or supplements thereto); (ii) all summary plan descriptions and material modifications thereto; (iii) the three (3) most recent Forms 5500, if applicable, and annual report, including all schedules thereto; (iv) the most recent annual and periodic accounting of plan assets; (v) the three (3) most recent nondiscrimination testing reports; (vi) the most recent determination letter received from the IRS, if any; (vii) the most recent actuarial valuation; and (viii) all material written communications between the Purchaser or any Subsidiary or ERISA Affiliate has incurred any Purchaser Benefit Plan and any Governmental Authority and relating to a Purchaser Benefit Plan within six (6) years preceding the date of this Agreement.
(iv) With respect to each Purchaser Benefit Plan: (i) such Purchaser Benefit Plan has been administered and enforced in all material respects in accordance with its terms, the Code and ERISA; (ii) neither the Purchaser nor any Subsidiary nor any employee, officer or director thereof that is a fiduciary (under ERISA) with respect to such Purchaser Benefit Plan has breached any of its fiduciary responsibilities, obligations or duties imposed on it by ERISA; (iii) no Action is pending or threatened in writing (other than routine claims for benefits arising in the ordinary course of administration); (iv) nothing has occurred with respect to any Purchaser Benefit Plan that has subjected the Purchaser or any Subsidiary to any material penalty under Section 502 of ERISA or Section 4975 of the Code; and (v) all contributions and premiums due through the Closing Date have been made in all material respects as required under ERISA or have been fully accrued in all material respects on the Purchaser Financials.
(v) No Purchaser Benefit Plan is, and neither the Purchaser or any Subsidiary or any of their respective ERISA Affiliates sponsors, maintains, contributes to, is required to contribute toliability, or otherwise has or could is reasonably be expected to have incur any current or contingent Liability liability, under or with respect to, a “defined benefit plan” (as defined in Section 414(j) of the Code), a “multiemployer plan” (as defined in Section 3(37) Title IV of ERISA) or a “multiple employer plan” (as described in , Section 413(c) of the Code) or is otherwise subject to Title IV 302 of ERISA or Section 412 of the Code, including any liability under Section 4069 or Section 4212(c) of ERISA. To "ERISA Affiliate" means any entity with which the Purchaser’s Knowledge, no Purchaser Benefit Plan will become a multiple employer plan with respect to any Purchaser Entity immediately after the Closing Date. Neither the Purchaser nor Company or any Subsidiary currently maintains or has ever maintained, or is required currently or has ever been required would be deemed to contribute to or otherwise participate in, be a multiple employer welfare arrangement or voluntary employees’ beneficiary association as defined in Section 501(c)(9) of the Code. For purposes of this Agreement, “ERISA Affiliate” means, with respect to any Person, any Person or entity (whether or not incorporated) that is under common control or treated as one single employer under Section 4001(b)(1) of ERISA or Section 414(b), (c), (m414(b),(c),(m) or (o) of the Code, or Section 4001 of ERISA.
(j) No event has occurred that presents a material risk that any Benefit Plan that is intended to be qualified under Code Section 401(a) has experienced a partial termination within the meaning of Code Section 411(d)(3).
Appears in 1 contract
Samples: Securities Purchase Agreement (Henry Jack & Associates Inc)
Benefit Plans. (i) Set forth on Schedule 3.19(aSection 4.2(l)(i) of the OPCH Disclosure Letter is a true complete and complete correct list of each material Benefit Plan of the Purchaser and its Subsidiaries (each, a “Purchaser OPCH Benefit Plan”). With respect to each Purchaser material OPCH Benefit Plan, there are no funded benefit obligations for which contributions have not been materially OPCH has made or properly accrued available, upon request, to Amedisys complete and there are no material unfunded benefit obligations that have not been accounted for by reserves, or otherwise properly footnoted in accordance with GAAP on the Purchaser Financials. Except as set forth on Schedule 3.19(a), neither the Purchaser nor any Subsidiary or has in the past been a member correct copies of a “controlled group” for purposes of Section 414(b), (c), (m) or (o) of the Code other than with the Purchaser or another Subsidiary, nor does the Purchaser or any Subsidiary have any Liability with respect to any collectively-bargained for plans, whether or not subject to the provisions of ERISAsuch OPCH Benefit Plan.
(ii) Each Purchaser Except as, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect on OPCH, (A) each of the OPCH Benefit Plans has been established, maintained, operated and administered in accordance with its terms and in compliance with Applicable Laws, including ERISA, the Code and in each case the regulations thereunder, (B) no OPCH Benefit Plan provides post-employment or retiree welfare benefits, including death or medical benefits (whether or not insured), other than coverage mandated by COBRA, or comparable U.S. state or foreign law, (C) all contributions, distributions or other amounts payable by OPCH or its subsidiaries as of the Effective Time pursuant to each OPCH Benefit Plan in all material respects respect of current or prior plan years have been timely paid in accordance with Applicable Laws or, to the extent not yet due, have been accrued in accordance with GAAP, (D) neither OPCH nor any of its subsidiaries has engaged in a transaction in connection with which OPCH or its subsidiaries could be subject to either a civil penalty assessed pursuant to Section 409 or 502(i) of ERISA or a tax imposed pursuant to Section 4975 or 4976 of the Code and (E) there are no pending or, to the knowledge of OPCH, threatened in writing or anticipated claims, actions, investigations or audits (other than routine claims for benefits) by, on behalf of or against any of the OPCH Benefit Plans or any trusts related thereto.
(iii) None of OPCH or any of its subsidiaries or any of their respective ERISA Affiliates contributes to or is and obligated to contribute to or has been operated in compliance any liability with all applicable Laws in all material respectsrespect to a plan subject to Title IV of ERISA or a Multiemployer Plan, including ERISA and as a result of any complete or partial withdrawal from any Multiemployer Plan.
(iv) Each of the Code. Each Purchaser OPCH Benefit Plan which is Plans intended to be “qualified” within the meaning of Section 401(a) of the Code Code, (iA) has been determined by the IRS to be is so qualified (or is based on a prototype plan which has received a favorable opinion letter) during the period from its adoption and, to the date knowledge of this Agreement and (ii) is funded through a trust exempt from taxation under Section 501(a) of the Code. To the Knowledge of the PurchaserAmedisys, there are no fact exists which could existing circumstances or any events that have occurred that would reasonably be expected to adversely affect the qualified status of any such Purchaser Benefit Plans plan and (B) has received a favorable determination letter or the exempt status of such trustsopinion letter as to its qualification.
(iiiv) With respect Except as, individually or in the aggregate, would not reasonably be expected to each Purchaser have a Material Adverse Effect on OPCH, all OPCH Benefit Plan, the Purchaser has made available Plans subject to the Seller accurate laws of any jurisdiction outside of the United States (A) have been maintained in accordance with all applicable requirements, (B) that are intended to qualify for special tax treatment meet all requirements for such treatment and complete copies(C) that are intended to be funded or book-reserved are fully funded or book reserved, if applicableas appropriate, of: (i) all Purchaser Benefit Plan documents and agreements and related trust agreements or annuity Contracts (including any amendments, modifications or supplements thereto); (ii) all summary plan descriptions and material modifications thereto; (iii) the three (3) most recent Forms 5500, if applicable, and annual report, including all schedules thereto; (iv) the most recent annual and periodic accounting of plan assets; (v) the three (3) most recent nondiscrimination testing reports; based upon reasonable actuarial assumptions.
(vi) Except as, individually or in the most recent determination letter received from aggregate, would not reasonably be expected to have a Material Adverse Effect on OPCH, (A) each OPCH Benefit Plan maintained by OPCH on behalf of current or former directors, officers, managers, employees or other service providers who reside or work primarily outside of the IRSUnited States (each, if anyan “OPCH Foreign Plan”) required by any Applicable Law to be registered or approved by a Governmental Entity has been so registered or approved and has been maintained in good standing with the applicable Governmental Entity; (viiB) the most recent actuarial valuation; and each OPCH Foreign Plan required under any Applicable Law to be funded, is either (viii1) all material written communications between the Purchaser or any Subsidiary or any Purchaser Benefit Plan and any Governmental Authority and relating to a Purchaser Benefit Plan within six (6) years preceding the date of this Agreement.
(iv) With respect to each Purchaser Benefit Plan: (i) such Purchaser Benefit Plan has been administered and enforced funded in all material respects in accordance with its terms, the Code and ERISA; (ii) neither the Purchaser nor any Subsidiary nor any employee, officer or director thereof that is a fiduciary (under ERISA) such law to an extent sufficient to provide for accrued benefit obligations with respect to such Purchaser Benefit Plan has breached any of its fiduciary responsibilitiesall affected employees or (2) is fully insured, obligations or duties imposed on it by ERISA; (iii) no Action is pending or threatened in writing (other than routine claims for benefits arising in the ordinary course of administration); (iv) nothing has occurred with respect to any Purchaser Benefit Plan that has subjected the Purchaser or any Subsidiary to any material penalty under Section 502 of ERISA or Section 4975 each case based upon generally accepted local accounting and actuarial practices and procedures, and none of the Code; and (v) all contributions and premiums due through the Closing Date have been made in all material respects as required under ERISA or have been fully accrued in all material respects on the Purchaser Financials.
(v) No Purchaser Benefit Plan is, and neither the Purchaser or any Subsidiary or any of their respective ERISA Affiliates sponsors, maintains, contributes to, is required to contribute totransactions contemplated by this Agreement will, or otherwise has or could would reasonably be expected to have any current or contingent Liability under or with respect to, cause such funding or insurance obligations to be materially less than such benefit obligations; (C) no OPCH Foreign Plan is a “defined benefit plan” (as defined in Section 414(j) of the CodeERISA, whether or not subject to ERISA), a “multiemployer plan” seniority premium, termination indemnity, gratuity or similar plan or arrangement; and (as defined in Section 3(37D) of ERISA) no unfunded or a “multiple employer plan” (as described in Section 413(c) of the Code) or is otherwise subject to Title IV of ERISA or Section 412 of the Code. To the Purchaser’s Knowledge, no Purchaser Benefit Plan will become a multiple employer plan underfunded liabilities exist with respect to any Purchaser Entity immediately after the Closing Date. Neither the Purchaser nor any Subsidiary currently maintains or has ever maintained, or is required currently or has ever been required to contribute to or otherwise participate in, a multiple employer welfare arrangement or voluntary employees’ beneficiary association as defined in Section 501(c)(9) of the Code. For purposes of this Agreement, “ERISA Affiliate” means, with respect to any Person, any Person or entity (whether or not incorporated) that is under common control or treated as one employer under Section 4001(b)(1) of ERISA or Section 414(b), (c), (m) or (o) of the Code.OPCH Foreign Plan.
Appears in 1 contract
Samples: Merger Agreement
Benefit Plans. (ia) Set forth on Schedule 3.19(a4.13(a) is a true identifies each benefit, employment and complete list of each material Benefit Plan of the Purchaser and its Subsidiaries (eachcompensation plan, a “Purchaser Benefit Plan”). With respect to each Purchaser Benefit PlanContract, there are no funded benefit obligations for which contributions have not been materially made arrangement or properly accrued and there are no material unfunded benefit obligations that have not been accounted for by reserves, or otherwise properly footnoted in accordance with GAAP on the Purchaser Financials. Except as set forth on Schedule 3.19(a), neither the Purchaser nor any Subsidiary or has in the past been a member of a “controlled group” for purposes of Section 414(b), (c), (m) or (o) of the Code other than with the Purchaser or another Subsidiary, nor does the Purchaser or any Subsidiary have any Liability with respect to any collectively-bargained for plans, whether or not subject to the provisions of ERISA.
(ii) Each Purchaser Benefit Plan in all material respects is and has been operated in compliance with all applicable Laws in all material respectspolicy, including ERISA and the Code. Each Purchaser Benefit Plan which is intended to be any “qualified” within the meaning of Section 401(a) of the Code (i) has been determined by the IRS to be so qualified (or is based on a prototype plan which has received a favorable opinion letter) during the period from its adoption to the date of this Agreement and (ii) is funded through a trust exempt from taxation under Section 501(a) of the Code. To the Knowledge of the Purchaser, no fact exists which could adversely affect the qualified status of such Purchaser Benefit Plans or the exempt status of such trusts.
(iii) With respect to each Purchaser Benefit Plan, the Purchaser has made available to the Seller accurate and complete copies, if applicable, of: (i) all Purchaser Benefit Plan documents and agreements and related trust agreements or annuity Contracts (including any amendments, modifications or supplements thereto); (ii) all summary plan descriptions and material modifications thereto; (iii) the three (3) most recent Forms 5500, if applicable, and annual report, including all schedules thereto; (iv) the most recent annual and periodic accounting of plan assets; (v) the three (3) most recent nondiscrimination testing reports; (vi) the most recent determination letter received from the IRS, if any; (vii) the most recent actuarial valuation; and (viii) all material written communications between the Purchaser or any Subsidiary or any Purchaser Benefit Plan and any Governmental Authority and relating to a Purchaser Benefit Plan within six (6) years preceding the date of this Agreement.
(iv) With respect to each Purchaser Benefit Plan: (i) such Purchaser Benefit Plan has been administered and enforced in all material respects in accordance with its terms, the Code and ERISA; (ii) neither the Purchaser nor any Subsidiary nor any employee, officer or director thereof that is a fiduciary (under ERISA) with respect to such Purchaser Benefit Plan has breached any of its fiduciary responsibilities, obligations or duties imposed on it by ERISA; (iii) no Action is pending or threatened in writing (other than routine claims for benefits arising in the ordinary course of administration); (iv) nothing has occurred with respect to any Purchaser Benefit Plan that has subjected the Purchaser or any Subsidiary to any material penalty under Section 502 of ERISA or Section 4975 of the Code; and (v) all contributions and premiums due through the Closing Date have been made in all material respects as required under ERISA or have been fully accrued in all material respects on the Purchaser Financials.
(v) No Purchaser Benefit Plan is, and neither the Purchaser or any Subsidiary or any of their respective ERISA Affiliates sponsors, maintains, contributes to, is required to contribute to, or otherwise has or could reasonably be expected to have any current or contingent Liability under or with respect to, a “defined employee benefit plan,” (as defined in Section 414(j3(3) of ERISA, and deferred compensation stock option, stock purchase, stock appreciation rights, stock-based, incentive, bonus, severance plans, post-retirement insurance benefits or other benefits, entered into, maintained or contributed to by the Code)Seller or with respect to which the Seller has or may in the future have any Liability. Each plan, agreement, program, policy or arrangement required to be set forth on the Disclosure Schedule pursuant to the foregoing is referred to herein as an “Employee Benefit Plan”.
(b) No benefit plan maintained, sponsored or contributed to or required to be contributed to by the Seller or its respective ERISA Affiliates is or was (i) a “multiemployer plan” (as defined in Section 3(37) of ERISA, (ii) or a “multiple employer plan” (as plan described in Section 413(c) 413 of the Code, (iii) or is otherwise a plan subject to Title IV of ERISA or ERISA, (iv) a plan subject to the minimum funding standards of Section 412 of the Code. To the Purchaser’s Knowledge, no Purchaser Benefit Plan will become a multiple employer plan with respect to any Purchaser Entity immediately after the Closing Date. Neither the Purchaser nor any Subsidiary currently maintains Code or has ever maintainedSection 302 of ERISA, or is required currently or has ever been required to contribute to or otherwise participate in, (v) a multiple employer welfare arrangement or voluntary employees’ beneficiary association as defined plan maintained in connection with any trust described in Section 501(c)(9) of the Code. For purposes of this Agreement.
(i) Each Employee Benefit Plan has been maintained and administered in compliance with its terms and with the requirements prescribed by the Laws, “including ERISA Affiliate” meansand the Code, which are applicable to such plans, in each case in all material respects; (ii) all contributions, reserves or premium payments required to be made or accrued to each Employee Benefit Plan have been timely made or accrued, in each case in all material respects; (iii) no actions, suits, claims (excluding claims for benefits incurred in the ordinary course) or disputes are pending, or threatened, with respect to any PersonEmployee Benefit Plan; (iv) no Litigation is pending with any Governmental Entity with respect to any Employee Benefit Plan; (v) there are no facts which would give rise to any material Liability in the event of any such Litigation; (vi) all reports, returns and similar documents required to be filed with any Person Governmental Entity or entity distributed to any plan participant with respect to each Employee Benefit Plan have been duly or timely filed or distributed, in each case in all material respects; and (whether vii) no “prohibited transaction” for which there is no exception has occurred with respect to any Employee Benefit Plan within the meaning of the applicable provisions of ERISA or the Code.
(d) With respect to each Employee Benefit Plan intended to qualify under Code Section 401(a), (i) the Internal Revenue Service has issued a favorable determination letter, true and correct copies of which have been provided by the Seller to the Buyer, that such plans are qualified and exempt from federal income taxes; and (ii) no such determination letter has been revoked nor, to the Knowledge of the Seller, has revocation been threatened, nor has any amendment or other action or omission occurred with respect to any such plan since the date of its most recent determination letter or application therefor in any respect which would adversely affect its qualification or increase its costs.
(e) The Seller is (i) not incorporated) that is obligated under common control or treated any Employee Benefit Plan as one employer under described in Section 4001(b)(13(1) of ERISA (each, a “Welfare Plan”) to provide medical or death benefits with respect to any Business Employee after termination of employment (other than as required pursuant to Section 414(b4980B of the Code or other applicable Law); and (ii) has complied in all material respects with the notice and continuation coverage requirements of Section 4980B of the Code and the regulations thereunder with respect to each Welfare Plan that is, (c)or was during any taxable year for which the statute of limitations on the assessment of federal income taxes remains open, (m) by consent or (ootherwise, a group health plan within the meaning of Section 5000(b)(1) of the Code.
(f) The assets and liabilities of each funded Employee Benefit Plan are fully and accurately reflected in the most recent annual report provided by the Seller to the Buyer; no assets or liabilities of such funded Employee Benefit Plans have been received from or transferred to any other plan or benefit arrangement since the end of the plan year covered by the most recent annual report; and no material changes have occurred in the financial condition of such plan or arrangement since the end of the plan year covered by the most recent annual report.
(g) Except as set forth in Schedule 4.13(g), none of the Employee Benefit Plans obligates the Seller to pay separation, severance, termination, acceleration or similar benefits solely as a result of the Transactions, whether alone or in connection with other events. The Seller will not as a result of any event connected directly or indirectly with the Transactions become obligated to make any “excess parachute payment” as defined in Section 280G of the Code. There is no written or unwritten agreement, plan, arrangement or other Contract by which the Seller is bound to compensate any individual for excise taxes paid pursuant to Section 4999 of the Code or Section 409A of the Code. Each Employee Benefit Plan that is a “nonqualified deferred compensation plan” (as defined for purposes of Section 409A(d)(1) of the Code) (i) such plan has been operated since January 1, 2005 in compliance with Section 409A of the Code and all applicable IRS guidance promulgated thereunder to the extent such plan is subject to Section 409A of the Code and so as to avoid any tax, interest or penalty thereunder; and (ii) the document or documents that evidence each such plan have conformed to the provisions of Section 409A of the Code and the final regulations under Section 409A of the Code since December 31, 2008.
Appears in 1 contract
Samples: Asset Purchase Agreement (DealerTrack Holdings, Inc.)
Benefit Plans. (ia) Set forth on Schedule 3.19(a) is a true and complete list of each material Benefit Plan Section 2.14 of the Purchaser and its Subsidiaries Disclosure Schedule lists each pension, welfare, incentive, deferred compensation, equity-based compensation, perquisite, paid time off, severance or other benefit plan, policy or practice covering current or former employees of the Seller or their spouses, dependents, family members, domestic partners or beneficiaries (each, a “Purchaser Benefit Plan”“). With respect to each Purchaser Benefit Plan, there are no funded benefit obligations for which contributions Seller has made available to Purchaser the current Plan document or a complete and accurate description of the Plan.
(b) Seller does not and could not have not been materially made any liability arising directly or properly accrued and there are no material unfunded benefit obligations that have not been accounted for by reserves, or otherwise properly footnoted in accordance with GAAP on the Purchaser Financials. Except as set forth on Schedule 3.19(a), neither the Purchaser nor any Subsidiary or has in the past been a member of a “controlled group” for purposes of indirectly under Section 414(b), (c), (m) or (o) 412 of the Code other than with the Purchaser or another Subsidiary, nor does the Purchaser Section 302 or any Subsidiary have any Liability with respect to any collectively-bargained for plans, whether or not subject to the provisions Title IV of ERISA.
(iic) Each Purchaser Benefit Plan in all material respects is Seller does not and has been operated in compliance could not have any liability arising directly or indirectly to or with all applicable Laws in all material respects, including ERISA and the Code. Each Purchaser Benefit Plan which is intended respect to be any “qualifiedmultiemployer plan” within the meaning of Section 401(a4001(a)(3) of ERISA.
(d) Seller does not and could not have any liability arising directly or indirectly in connection with any failure of Seller or any affiliate of Seller to comply with Section 4980B of the Code (i) has been determined by the IRS to be so qualified (or is based on a prototype plan which has received a favorable opinion letter) during the period from its adoption to the date Part 6 of this Agreement and (ii) is funded through a trust exempt from taxation under Section 501(a) Subtitle B of the Code. To the Knowledge Title I of the Purchaser, no fact exists which could adversely affect the qualified status of such Purchaser Benefit Plans or the exempt status of such trustsERISA.
(iiie) With Nothing has occurred or failed to occur with respect to each Purchaser any Benefit PlanPlan that could result in any liability to Purchaser, the Purchaser has made available to the Seller accurate and complete copies, if applicable, of: (i) all Purchaser Benefit Plan documents and agreements and related trust agreements or annuity Contracts (including any amendments, modifications or supplements thereto); (ii) all summary plan descriptions and material modifications thereto; (iii) the three (3) most recent Forms 5500, if applicable, and annual report, including all schedules thereto; (iv) the most recent annual and periodic accounting of plan assets; (v) the three (3) most recent nondiscrimination testing reports; (vi) the most recent determination letter received from the IRS, if any; (vii) the most recent actuarial valuation; and (viii) all material written communications between the Purchaser Parent or any Subsidiary affiliate of the Parent or any Purchaser Benefit Plan and any Governmental Authority and relating other than a liability expressly assumed pursuant to a Purchaser Benefit Plan within six (6) years preceding the date of this Agreement.
(ivf) With respect to each Purchaser Benefit Plan: (i) such Purchaser Benefit Plan has been administered and enforced in all material respects in accordance with its termsThere are no facts or circumstances which could, directly or indirectly, subject the Purchaser, the Code and ERISA; (ii) neither the Purchaser nor any Subsidiary nor any employee, officer or director thereof that is a fiduciary (under ERISA) with respect to such Purchaser Benefit Plan has breached any of its fiduciary responsibilities, obligations or duties imposed on it by ERISA; (iii) no Action is pending or threatened in writing (other than routine claims for benefits arising in the ordinary course of administration); (iv) nothing has occurred with respect to any Purchaser Benefit Plan that has subjected the Purchaser or any Subsidiary to any material penalty under Section 502 of ERISA or Section 4975 of the Code; and (v) all contributions and premiums due through the Closing Date have been made in all material respects as required under ERISA or have been fully accrued in all material respects on the Purchaser Financials.
(v) No Purchaser Benefit Plan is, and neither the Purchaser or any Subsidiary Parent or any of their respective ERISA Affiliates sponsors, maintains, contributes to, is required affiliates to contribute to, or otherwise has or could reasonably be expected to have any current or contingent Liability under or with respect to, a “defined benefit plan” (as defined in Section 414(j) liability of the Code), a “multiemployer plan” (as defined in Section 3(37) of ERISA) or a “multiple employer plan” (as described in Section 413(c) of the Code) or is otherwise subject to Title IV of ERISA or Section 412 of the Code. To the Purchaser’s Knowledge, no Purchaser Benefit Plan will become a multiple employer plan any nature with respect to any Purchaser Entity immediately after pension, welfare, incentive, deferred compensation, perquisite, paid time off, severance or other benefit plan, policy, practice or agreement sponsored, maintained or contributed to by the Closing Date. Neither Seller or any affiliate, to which the Purchaser nor Seller or any Subsidiary currently maintains affiliate is a party or has ever maintained, or is required currently or has ever been required to contribute to or otherwise participate in, a multiple employer welfare arrangement or voluntary employees’ beneficiary association as defined in Section 501(c)(9) of the Code. For purposes of this Agreement, “ERISA Affiliate” means, with respect to which the Seller or any Person, affiliate could have any Person or entity liability (whether or not incorporated) that is under common control or treated as one employer under Section 4001(b)(1) of ERISA or Section 414(ba “Seller Plan”), (c), (m) or (o) of the Code.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Global Epoint Inc)
Benefit Plans. (i) Set forth on Schedule 3.19(a) is a true and complete list of each material All Benefit Plan Plans of the Purchaser and its Subsidiaries (each, a “Purchaser Benefit Plan”). With respect to each Purchaser Benefit Plan, there Company are no funded benefit obligations for which contributions have not been materially made or properly accrued and there are no material unfunded benefit obligations that have not been accounted for by reserves, or otherwise properly footnoted listed in accordance with GAAP on the Purchaser Financials. Except as set forth on Schedule 3.19(a), neither the Purchaser nor any Subsidiary or has in the past been a member of a “controlled group” for purposes of ------------- Section 414(b), (c), (m) or (o) 2.12 of the Code other than with the Purchaser or another SubsidiaryDisclosure Schedule, nor does the Purchaser or any Subsidiary have any Liability and copies of all documentation --------------------------------------- relating to such Benefit Plans (including all plan documents, written descriptions of plans, actuarial reports and governmental filings and determinations with respect to any collectively-bargained for plans, whether such Benefit Plans) have been delivered or not subject to the provisions of ERISA.
(ii) Each Purchaser Benefit Plan in all material respects is and has been operated in compliance with all applicable Laws in all material respects, including ERISA and the Code. Each Purchaser Benefit Plan which is intended to be “qualified” within the meaning of Section 401(a) of the Code (i) has been determined by the IRS to be so qualified (or is based on a prototype plan which has received a favorable opinion letter) during the period from its adoption to the date of this Agreement and (ii) is funded through a trust exempt from taxation under Section 501(a) of the Code. To the Knowledge of the Purchaser, no fact exists which could adversely affect the qualified status of such Purchaser Benefit Plans or the exempt status of such trusts.
(iii) With respect to each Purchaser Benefit Plan, the Purchaser has made available to the Seller accurate and complete copies, if applicable, of: (i) all Purchaser Investors. None of the Benefit Plan documents and agreements and related trust agreements or annuity Contracts (including any amendments, modifications or supplements thereto); (ii) all summary plan descriptions and material modifications thereto; (iii) the three (3) most recent Forms 5500, if applicable, and annual report, including all schedules thereto; (iv) the most recent annual and periodic accounting of plan assets; (v) the three (3) most recent nondiscrimination testing reports; (vi) the most recent determination letter received from the IRS, if any; (vii) the most recent actuarial valuation; and (viii) all material written communications between the Purchaser or any Subsidiary or any Purchaser Plans are Defined Benefit Plan and any Governmental Authority and relating to a Purchaser Benefit Plan within six (6) years preceding the date of this Agreement.Plans:
(iva) With respect to each Purchaser Benefit Plan: (i) such Purchaser Benefit Plan has at all times been maintained and administered and enforced in all material respects in accordance with its termsterms and with the requirements of all applicable law, including, without limitation, ERISA and the Code, and each Benefit Plan intended to qualify under Section 401(a) of the Code has at all times since its adoption been so qualified, and ERISA; each trust which forms a part of any such plan has at all times since its adoption been tax- exempt under Section 501(a) of the Code;
(iib) neither the Purchaser Company nor any Subsidiary nor ERISA Affiliate has incurred any employee, officer liability for any tax imposed under Chapter 43 of the Code or director thereof that is a fiduciary civil liability under Section 502(i) or (under l) of ERISA) with respect to such Purchaser Benefit Plan has breached any of its fiduciary responsibilities, obligations or duties imposed on it by ERISA; ;
(iiic) no Action is pending benefit under any Benefit Plan, including, without limitation, any severance or threatened in writing parachute payment plan or agreement, will be established or become accelerated, vested or payable by reason of any transaction contemplated under this Agreement;
(other than routine claims for benefits arising in d) no tax has been incurred under Section 511 of the ordinary course of administration); (iv) nothing has occurred Code with respect to any Purchaser Benefit Plan that has subjected (or trust or other funding vehicle pursuant thereto);
(e) no Benefit Plan provides health or death benefit coverage beyond the Purchaser or any Subsidiary to any material penalty under Section 502 termination of an employee's employment, except as required by Part 6 of Subtitle B of Title I of ERISA or Section 4975 4980B of the Code; and Code or the laws of any other jurisdiction requiring continuation of benefits coverage following termination of employment;
(vf) all contributions and premiums due through no suit, actions or other litigation (excluding claims for benefits incurred in the Closing Date ordinary course) have been made in all material respects as required under ERISA brought or, to the knowledge of the Company, threatened against or have been fully accrued in all material respects on the Purchaser Financials.
(v) No Purchaser with respect to any Benefit Plan is, and neither there are no facts or circumstances known to the Purchaser or any Subsidiary or any of their respective ERISA Affiliates sponsors, maintains, contributes to, is required to contribute to, or otherwise has or Company that could reasonably be expected to give rise to any such suit, action or other litigation; and
(g) all contributions to Benefit Plans that were required to be made under such Benefit Plans have been made, and all benefits accrued under any current unfunded Benefit Plan have been paid, accrued or contingent Liability otherwise adequately reserved in accordance with GAAP, all of which accruals under or with respect to, a “defined benefit plan” (unfunded Benefit Plans are as defined disclosed in Section 414(j2.12(g) of the Code)Disclosure Schedule, a “multiemployer plan” (as defined in Section 3(37) of ERISA) or a “multiple employer plan” (as described in Section 413(c) of and the Code) or is otherwise subject to Title IV of ERISA or Section 412 of the Code. To the Purchaser’s Knowledge, no Purchaser Benefit Plan will become a multiple employer plan with respect to any Purchaser Entity immediately after the Closing Date. Neither the Purchaser nor any Subsidiary currently maintains or Company has ever maintained, or is required currently or has ever been performed all material obligations required to contribute to or otherwise participate in, a multiple employer welfare arrangement or voluntary employees’ beneficiary association as defined in Section 501(c)(9) of the Code. For purposes of this Agreement, “ERISA Affiliate” means, with respect to any Person, any Person or entity (whether or not incorporated) that is be performed under common control or treated as one employer under Section 4001(b)(1) of ERISA or Section 414(b), (c), (m) or (o) of the Codeall Benefit Plans.
Appears in 1 contract
Benefit Plans. (ia) Set forth on Schedule 3.19(a4.19(a) is a true and complete list of each material Company Benefit Plan of the Purchaser and its Subsidiaries (each, a “Purchaser Benefit Plan”)Target Company. With respect to each Purchaser Company Benefit Plan, there are no funded benefit obligations for which contributions have not been materially made or properly accrued and there are no material unfunded benefit obligations that have not been accounted for by reserves, or otherwise properly footnoted in accordance with GAAP on the Purchaser Company Financials. Except as set forth on Schedule 3.19(a), neither the Purchaser nor any Subsidiary No Target Company is or has in the past been a member of a “controlled group” for purposes of Section 414(b), (c), (m) or (o) of the Code other than with the Purchaser or another SubsidiaryCode, nor does the Purchaser or any Subsidiary Target Company have any Liability with respect to any collectively-bargained for plans, whether or not subject to the provisions of ERISA. No statement, either written or oral, has been made by any Target Company to any Person with regard to any Company Benefit Plan that was not in accordance with the Company Benefit Plan in any material respect.
(iib) Each Purchaser Company Benefit Plan in all material respects is and has been operated at all times in compliance with all applicable Laws in all material respects, including ERISA and the Code. Each Purchaser Company Benefit Plan which is intended to be “qualified” within the meaning of Section 401(a) of the Code (i) has been determined by the IRS to be so qualified (or is based on a prototype plan which has received a favorable opinion letter) during the period from its adoption to the date of this Agreement and (ii) is funded through a its related trust has been determined to be exempt from taxation under Section 501(a) of the CodeCode or the Target Companies have requested an initial favorable IRS determination of qualification and/or exemption within the period permitted by applicable Law. To the Knowledge of the Purchaser, no No fact exists which could adversely affect the qualified status of such Purchaser Company Benefit Plans or the exempt status of such trusts.
(iiic) With respect to each Purchaser Company Benefit PlanPlan which covers any current or former officer, director, consultant or employee (or beneficiary thereof) of a Target Company, the Company has provided to Purchaser has made available to the Seller accurate and complete copies, if applicable, of: (i) all Purchaser Company Benefit Plan documents texts and agreements and related trust agreements or annuity Contracts (including any amendments, modifications or supplements thereto); (ii) all summary plan descriptions and material modifications thereto; (iii) the three (3) most recent Forms 5500, if applicable, and annual report, including all schedules thereto; (iv) the most recent annual and periodic accounting of plan assets; (v) the three (3) most recent nondiscrimination testing reports; (vi) the most recent determination letter received from the IRS, if any; (vii) the most recent actuarial valuation; and (viii) all material written communications between the Purchaser or any Subsidiary or any Purchaser Benefit Plan and with any Governmental Authority and relating to a Purchaser Benefit Plan within six (6) years preceding the date of this AgreementAuthority.
(ivd) With respect to each Purchaser Company Benefit Plan: (i) such Purchaser Company Benefit Plan has been administered and enforced in all material respects in accordance with its terms, the Code and ERISA; (ii) neither the Purchaser nor any Subsidiary nor any employee, officer or director thereof that is a no breach of fiduciary (under ERISA) with respect to such Purchaser Benefit Plan duty has breached any of its fiduciary responsibilities, obligations or duties imposed on it by ERISAoccurred; (iii) no Action is pending pending, or to the Company’s Knowledge, threatened in writing (other than routine claims for benefits arising in the ordinary course of administration); (iv) nothing has occurred with respect to any Purchaser Benefit Plan that has subjected the Purchaser or any Subsidiary to any material penalty under no prohibited transaction, as defined in Section 502 406 of ERISA or Section 4975 of the Code, has occurred, excluding transactions effected pursuant to a statutory or administration exemption; and (v) all contributions and premiums due through the Closing Date have been made in all material respects as required under ERISA or have been fully accrued in all material respects on the Purchaser Company Financials.
(ve) No Purchaser Company Benefit Plan is, and neither the Purchaser or any Subsidiary or any of their respective ERISA Affiliates sponsors, maintains, contributes to, is required to contribute to, or otherwise has or could reasonably be expected to have any current or contingent Liability under or with respect to, a “defined benefit plan” (as defined in Section 414(j) of the Code), a “multiemployer plan” (as defined in Section 3(37) of ERISA) or a “multiple employer plan” (as described in Section 413(c) of the Code) or is otherwise subject to Title IV of ERISA or Section 412 of the Code, and no Target Company has incurred any Liability or otherwise could have any Liability, contingent or otherwise, under Title IV of ERISA and no condition presently exists that is expected to cause such Liability to be incurred. To the Purchaser’s Knowledge, no Purchaser No Company Benefit Plan will become a multiple employer plan with respect to any Purchaser Entity Target Company immediately after the Closing Date. Neither the Purchaser nor any Subsidiary No Target Company currently maintains or has ever maintained, or is required currently or has ever been required to contribute to or otherwise participate in, a multiple employer welfare arrangement or voluntary employees’ beneficiary association as defined in Section 501(c)(9) of the Code. For purposes of this Agreement, “ERISA Affiliate” means, .
(f) There is no arrangement under any Company Benefit Plan with respect to any Personemployee that would result in the payment of any amount that by operation of Sections 280G or 162(m) of the Code would not be deductible by the Target Companies and no arrangement exists pursuant to which a Target Company will be required to “gross up” or otherwise compensate any person because of the imposition of any excise tax on a payment to such person.
(g) With respect to each Company Benefit Plan which is a “welfare plan” (as described in Section 3(1) of ERISA): (i) no such plan provides medical or death benefits with respect to current or former employees of a Target Company beyond their termination of employment (other than coverage mandated by Law, which is paid solely by such employees); and (ii) there are no reserves, assets, surplus or prepaid premiums under any such plan. Each Target Company has complied with the provisions of Section 601 et seq. of ERISA and Section 4980B of the Code.
(h) Except as set forth in Schedule 4.19(h), the consummation of the transactions contemplated by this Agreement and the Ancillary Documents will not: (i) entitle any individual to severance pay, unemployment compensation or other benefits or compensation; (ii) accelerate the time of payment or vesting, or increase the amount of any compensation due, or in respect of, any Person individual; or entity (whether iii) result in or not incorporated) satisfy a condition to the payment of compensation that is would, in combination with any other payment, result in an “excess parachute payment” within the meaning of Section 280G of the Code. No Target Company has incurred any Liability for any Tax imposed under common control Chapter 43 of the Code or treated as one employer civil liability under Section 4001(b)(1) of ERISA or Section 414(b), (c), (m502(i) or (ol) of ERISA.
(i) Except to the extent required by Section 4980B of the Code or similar state Law, no Target Company provides health or welfare benefits to any former or retired employee or is obligated to provide such benefits to any active employee following such employee’s retirement or other termination of employment or service.
(j) All Company Benefit Plans can be terminated at any time as of or after the Closing Date without resulting in any Liability to the Surviving Corporation or Purchaser or their respective Affiliates for any additional contributions, penalties, premiums, fees, fines, excise taxes or any other charges or liabilities.
(k) Each Company Benefit Plan that is subject to Section 409A of the Code (each, a “Section 409A Plan”) as of the Closing Date is indicated as such on Schedule 4.19(k). No options or other equity-based awards have been issued or granted by the Company that are, or are subject to, a Section 409A Plan. Each Section 409A Plan has been administered in compliance, and is in documentary compliance, with the applicable provisions of Section 409A of the Code, the regulations thereunder and other official guidance issued thereunder. No Target Company has any obligation to any employee or other service provider with respect to any Section 409A Plan that may be subject to any Tax under Section 409A of the Code. No payment to be made under any Section 409A Plan is, or to the Knowledge of the Company will be, subject to the penalties of Section 409A(a)(1) of the Code. There is no Contract or plan to which any Target Company is a party or by which it is bound to compensate any employee, consultant or director for penalty taxes paid pursuant to Section 409A of the Code.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Aesther Healthcare Acquisition Corp.)
Benefit Plans. (ia) Set forth on Schedule 3.19(a4.19(a) is a true and complete list of each material Benefit Plan sponsored, administered or maintained by the Company for Company employees (excluding, for the avoidance of the Purchaser and its Subsidiaries doubt, any Benefit Plan sponsored, administered or maintained by any professional employer organization in which Company employees may participate pursuant to an agreement with such professional employer organization) (each, a “Purchaser Company Benefit Plan”). With respect to each Purchaser Company Benefit Plan, there are no funded benefit obligations for which contributions have not been materially made or properly accrued and there are no material unfunded benefit obligations that have not been accounted for by reserves, or otherwise properly footnoted in accordance with GAAP on the Purchaser Company Financials. Except as set forth on Schedule 3.19(a), neither the Purchaser nor any Subsidiary or The Company is not and has not in the past been a member of a “controlled group” for purposes of Section 414(b), (c), (m) or (o) of the Code other than with the Purchaser or another SubsidiaryCode, nor does the Purchaser or any Subsidiary Company have any Liability with respect to any collectively-bargained for plans, whether or not subject to the provisions of ERISA.
(iib) Each Purchaser Company Benefit Plan in all material respects is and has been operated at all times in compliance with all applicable Laws in all material respects, including ERISA and the Code. Each Purchaser Company Benefit Plan which is intended to be “qualified” within the meaning of Section 401(a) of the Code (i) has been determined by the IRS to be so qualified (or is based on a prototype plan which has received a favorable opinion letter) during the period from its adoption to the date of this Agreement and (ii) is funded through a its related trust has been determined to be exempt from taxation under Section 501(a) of the Code. To the Knowledge of the Purchaser, no fact exists which could adversely affect the qualified status of such Purchaser Benefit Plans Code or the exempt status Company has requested an initial favorable IRS determination of such trustsqualification or exemption within the period permitted by applicable Law.
(iiic) With respect to each Purchaser Company Benefit PlanPlan which covers any current or former officer, director, consultant or employee (or beneficiary thereof) of the Company, the Company has provided to Purchaser has made available to the Seller accurate and complete copies, if applicable, of: (i) all Purchaser Company Benefit Plan documents texts and agreements and related trust agreements or annuity Contracts (including any amendments, modifications or supplements thereto); (ii) all summary plan descriptions and material modifications thereto; (iii) the three (3) most recent Forms 5500, if applicable, and annual report, including all schedules thereto; (iv) the most recent annual and periodic accounting of plan assets; (v) the three (3) most recent nondiscrimination testing reports; (vi) the most recent determination letter received from the IRS, if any; (vii) the most recent actuarial valuation; and (viii) all material written communications between the Purchaser or any Subsidiary or any Purchaser Benefit Plan and with any Governmental Authority and relating to a Purchaser Benefit Plan within six (6) years preceding the date of this AgreementAuthority.
(ivd) With respect to each Purchaser Company Benefit Plan: (i) such Purchaser Company Benefit Plan has been administered and enforced in all material respects in accordance with its terms, the Code and ERISA; (ii) neither the Purchaser nor any Subsidiary nor any employee, officer or director thereof that is a no breach of fiduciary (under ERISA) with respect to such Purchaser Benefit Plan duty has breached any of its fiduciary responsibilities, obligations or duties imposed on it by ERISAoccurred; (iii) no Action is pending pending, or to the Company’s Knowledge, threatened in writing (other than routine claims for benefits arising in the ordinary course of administration); (iv) nothing has occurred with respect to any Purchaser Benefit Plan that has subjected the Purchaser or any Subsidiary to any material penalty under no prohibited transaction, as defined in Section 502 406 of ERISA or Section 4975 of the Code, has occurred, excluding transactions effected pursuant to a statutory or administration exemption; and (v) all contributions and premiums due through the Closing Date date hereof have been made in all material respects as required under ERISA or have been fully accrued in all material respects on the Purchaser Company Financials.
(ve) No Purchaser Company Benefit Plan is, and neither the Purchaser or any Subsidiary or any of their respective ERISA Affiliates sponsors, maintains, contributes to, is required to contribute to, or otherwise has or could reasonably be expected to have any current or contingent Liability under or with respect to, a “defined benefit plan” (as defined in Section 414(j) of the Code), a “multiemployer plan” (as defined in Section 3(37) of ERISA) or a “multiple employer plan” (as described in Section 413(c) of the Code) or is otherwise subject to Title IV of ERISA or Section 412 of the Code, and the Company has not incurred any Liability under Title IV of ERISA. To the Purchaser’s Knowledge, no Purchaser Benefit Plan will become a multiple employer plan with respect to any Purchaser Entity immediately after the Closing Date. Neither the Purchaser nor any Subsidiary The Company does not currently maintains or maintain and has ever never maintained, or and is not required currently or and has ever never been required to contribute to or otherwise participate in, a multiple employer welfare arrangement or voluntary employees’ beneficiary association as defined in Section 501(c)(9) of the Code. For purposes of this Agreement.
(f) Except as set forth on Schedule 4.19(f), “ERISA Affiliate” means, there is no arrangement under any Company Benefit Plan with respect to any Personemployee that would result in the payment of any amount that by operation of Sections 280G or 162(m) of the Code would not be deductible by the Company and no arrangement exists pursuant to which the Company will be required to “gross up” or otherwise compensate any person because of the imposition of any excise tax on a payment to such person.
(g) With respect to each Company Benefit Plan which is a “welfare plan” (as described in Section 3(1) of ERISA): (i) no such plan provides medical or death benefits with respect to current or former employees of the Company beyond their termination of employment (other than coverage mandated by Law, which is paid solely by such employees); and (ii) there are no reserves, assets, surplus or prepaid premiums under any such plan. The Company has complied in all material respects with the provisions of Section 601 et seq. of ERISA and Section 4980B of the Code.
(h) Except as set forth on Schedule 4.19(h), the consummation of the transactions contemplated by this Agreement and the Ancillary Documents will not: (i) entitle any individual to severance pay, unemployment compensation or other benefits or compensation; (ii) accelerate the time of payment or vesting, or increase the amount of any compensation due, or in respect of, any Person individual; or entity (whether iii) result in or satisfy a condition to the payment of compensation that would, in combination with any other payment, result in an “excess parachute payment” within the meaning of Section 280G of the Code. The Company has not incorporated) that is incurred any Liability for any Tax imposed under common control Chapter 43 of the Code or treated as one employer civil liability under Section 4001(b)(1) of ERISA or Section 414(b), (c), (m502(i) or (ol) of ERISA.
(i) Except to the extent required by Section 4980B of the Code or similar state Law, the Company does not provide health or welfare benefits to any former or retired employee or is obligated to provide such benefits to any active employee following such employee’s retirement or other termination of employment or service.
(j) Each Company Benefit Plan that is subject to Section 409A of the Code (each, a “Section 409A Plan”) as of the Closing Date is indicated as such on Schedule 4.19(j). Each Section 409A Plan has been administered in compliance, and is in documentary compliance, with the applicable provisions of Section 409A of the Code, the regulations thereunder and other official guidance issued thereunder. The Company does not have any obligation to any employee or other service provider with respect to any Section 409A Plan that may be subject to any Tax under Section 409A of the Code. No payment to be made under any Section 409A Plan is, or to the Knowledge of the Company will be, subject to the penalties of Section 409A(a)(1) of the Code. There is no Contract or plan to which any the Company is a party or by which it is bound to compensate any employee, consultant or director for penalty taxes paid pursuant to Section 409A of the Code.
Appears in 1 contract
Benefit Plans. (a) The Disclosure Schedule lists all "Seller Pension Plans," "Seller Welfare Plans," "Seller Benefit Arrangements," and material incentive, bonus, supplementary benefit, club membership, retention and similar "Current Compensation" plans and "Transferred Plans," as such terms are defined in the Personnel Agreement (collectively, "Plans"). Seller has made available to Buyer true and complete copies of (i) Set forth the Plans and related trust agreements, funding agreements or other agreements or contracts evidencing any funding vehicle with respect thereto; (ii) the three most recent annual reports on Schedule 3.19(a) is a true Treasury Form 5500, including all schedules and complete list of each material Benefit Plan of the Purchaser and its Subsidiaries (each, a “Purchaser Benefit Plan”). With respect to each Purchaser Benefit Plan, there are no funded benefit obligations for which contributions have not been materially made or properly accrued and there are no material unfunded benefit obligations that have not been accounted for by reservesattachments thereto, or otherwise properly footnoted any other annual return required to be filed in accordance with GAAP on a jurisdiction outside the Purchaser Financials. Except as set forth on Schedule 3.19(a), neither the Purchaser nor any Subsidiary or has in the past been a member of a “controlled group” for purposes of Section 414(b), (c), (m) or (o) of the Code other than with the Purchaser or another Subsidiary, nor does the Purchaser or any Subsidiary have any Liability U.S. with respect to any collectively-bargained Plan for plans, whether or not subject to the provisions of ERISA.
(ii) Each Purchaser Benefit Plan in all material respects which such a report is and has been operated in compliance with all applicable Laws in all material respects, including ERISA and the Code. Each Purchaser Benefit Plan which is intended to be “qualified” within the meaning of Section 401(a) of the Code (i) has been determined by the IRS to be so qualified (or is based on a prototype plan which has received a favorable opinion letter) during the period from its adoption to the date of this Agreement and (ii) is funded through a trust exempt from taxation under Section 501(a) of the Code. To the Knowledge of the Purchaser, no fact exists which could adversely affect the qualified status of such Purchaser Benefit Plans or the exempt status of such trusts.
(iii) With respect to each Purchaser Benefit Plan, the Purchaser has made available to the Seller accurate and complete copies, if applicable, of: (i) all Purchaser Benefit Plan documents and agreements and related trust agreements or annuity Contracts (including any amendments, modifications or supplements thereto); (ii) all summary plan descriptions and material modifications theretorequired; (iii) the three (3) most recent Forms 5500actuarial reports with respect to any Plan that is subject to Title IV of the Employee Retirement Income Security Act of 1974, if applicableas amended ("ERISA"), and annual report, including all schedules theretoor any other Plan in respect of which such actuarial reports have been prepared; (iv) the most recent annual form of summary plan description, including any summary of material modifications thereto or other modifications communicated to participants, currently in effect with respect to each Plan; and periodic accounting of plan assets; (v) the three (3) most recent nondiscrimination testing reports; (vi) the most recent determination letter received from with respect to each Plan intended to qualify under Section 401(a) of the IRSCode.
(b) Except as set forth in the Disclosure Schedule:
(i) Except as provided for in Section 4.1(d) of the Personnel Agreement, if any; (vii) the most recent actuarial valuation; and (viii) each Transferred Plan has been administered in all material respects consistently with its written communications between terms and Seller and each of the Purchaser CD Int Subsidiaries has complied in connection with each Transferred Plan in all material respects with applicable provisions of ERISA, the Code and any other applicable law of the United States or of any other applicable jurisdiction, including, without limitation, the qualification provisions of Code Section 401(a) for each Plan intended to qualify thereunder.
(ii) There is no pending or, to the knowledge of Seller, threatened legal action or proceeding or investigation against any Transferred Plan, the assets or any Subsidiary of the trusts under such plans or the plan sponsor or the plan administrator or against any Purchaser Benefit Plan fiduciary of the Transferred Plans that would reasonably be expected to have a material adverse effect on the CD Int Business and there is no basis for any Governmental Authority and relating such claim or lawsuit.
(iii) No CD Int Entity has made any plan or commitment, whether or not legally binding, to create any additional plan or modify or change any existing plan that would, individually or in the aggregate, reasonably be expected to, directly or indirectly, have a material adverse effect on the CD Int Business.
(iv) No CD Int Entity has incurred any outstanding liability under Section 4062 of ERISA or to the PBGC, to a Purchaser Benefit Plan within six trust established under Section 4041 or 4042 of ERISA or to a trustee appointed under ERISA Section 4042.
(6v) years preceding None of the date Transferred Plans contains any provisions which would prohibit the transactions contemplated by this Agreement and none of the Transferred Plans, other than any Retention Agreement listed on Schedule 2.3 to the Personnel Agreement or employment agreement with Daxx Xxxxx, would give rise to any material severance, termination or other payments as a result of the transactions contemplated by this Agreement.
(ivvi) With respect to each Purchaser Benefit Plan: (i) such Purchaser Benefit Pension Plan has been administered and enforced in all material respects in accordance with its terms, the Code and ERISA; (ii) neither the Purchaser nor any Subsidiary nor any employee, officer or director thereof that is a fiduciary (under ERISA) with respect to such Purchaser Benefit Plan has breached any of its fiduciary responsibilities, obligations or duties imposed on it by ERISA; (iii) no Action is pending or threatened in writing (other than routine claims for benefits arising in the ordinary course of administration); (iv) nothing has occurred with respect to any Purchaser Benefit Plan that has subjected the Purchaser or any Subsidiary to any material penalty under Section 502 of ERISA or Section 4975 of the Code; and (v) all contributions and premiums due through the Closing Date have been made in all material respects as required under ERISA or have been fully accrued in all material respects on the Purchaser Financials.
(v) No Purchaser Benefit Plan is, and neither the Purchaser or any Subsidiary or any of their respective ERISA Affiliates sponsors, maintains, contributes to, is required to contribute to, or otherwise has or could reasonably be expected to have any current or contingent Liability under or with respect to, a “defined benefit plan” (as defined in Section 414(jthe Personnel Agreement) that the Seller (including any member of the Codecontrolled group of corporations, within the meaning of Code Section 1563, which includes the Seller) maintains or ever has maintained, or to which any of them contributes, ever has contributed or ever been required to contribute, neither Seller nor any member of its controlled group of corporations (as referenced above) has incurred or has any reason to expect that it will incur any liability to the PBGC (other than PBGC premium payments) or otherwise under Title IV of ERISA (including any withdrawal liability).
(vii) None of the CD Int Entities or other members of their controlled group of corporations (as referenced above) contributes to, a “multiemployer plan” ever has contributed to, or ever has been required to contribute to any Multiemployer Plan (as defined in Section 3(37) of ERISA) or a “multiple employer plan” has any liability (as described in Section 413(cincluding withdrawal liability) under any Multiemployer Plan.
(viii) None of the CodeTransferred Plans that are Welfare Benefit Plans (including any Seller maintained retiree medical or life benefit plans) contain vested benefits that may not be changed. Each such plan may be amended or is otherwise subject to Title IV of ERISA terminated at any time by the Seller (or Section 412 of the Code. To the Purchaser’s Knowledge, appropriate CD Int Subsidiary) and no Purchaser Benefit Plan will become a multiple employer such plan with respect to contains any Purchaser Entity immediately provision that would prevent Buyer from amending or terminating any plan maintained by it on or after the Closing Date. Neither the Purchaser nor Buyer acknowledges that such rights to amend or terminate such plans are subject to applicable collective bargaining agreements and other applicable law.
(ix) No CD Int Entity is obligated to make any Subsidiary currently maintains or has ever maintained, payment or is required currently or has ever been required to contribute to or otherwise participate in, a multiple employer welfare arrangement or voluntary employees’ beneficiary association as defined in Section 501(c)(9) of the Code. For purposes of this Agreement, “ERISA Affiliate” means, with respect party to any Person, agreement that under any Person circumstances could obligate Buyer or entity (whether any CD Int Entity to make any payment that will not be deductible in whole or not incorporated) that is under common control or treated as one employer under in part by reason of Section 4001(b)(1) of ERISA or Section 414(b), (c), (m) or (o) 280G of the Code.
(x) Seller has delivered or otherwise made available to Buyer the most recent listing of open workers' compensation claims for the CD Int Business.
Appears in 1 contract
Benefit Plans. (ia) Set Section 4.22 of the Vendor Disclosure Schedule sets forth on Schedule 3.19(a) is a true and complete list of each material the Benefit Plan of the Purchaser and its Subsidiaries (each, a “Purchaser Benefit Plan”). With respect to each Purchaser Benefit Plan, there are no funded benefit obligations for which contributions have not been materially made or properly accrued and there are no material unfunded benefit obligations that have not been accounted for by reserves, or otherwise properly footnoted in accordance with GAAP on the Purchaser Financials. Except as set forth on Schedule 3.19(a), neither the Purchaser nor any Subsidiary or has in the past been a member of a “controlled group” for purposes of Section 414(b), (c), (m) or (o) of the Code other than with the Purchaser or another Subsidiary, nor does the Purchaser or any Subsidiary have any Liability with respect to any collectively-bargained for plans, whether or not subject to the provisions of ERISAPlans.
(iib) Each Purchaser Benefit Plan in all material respects is and has been operated in compliance with all applicable Laws in all material respects, including ERISA and Neither the Code. Each Purchaser Benefit Plan Vendors nor any entity which is intended to be “qualified” within considered one employer with the meaning Company under Section 4001 of ERISA or Section 401(a) 414 of the Code (ian “ERISA Affiliate”) (x) maintains or contributes to or has been determined by the IRS to be so qualified (or is based on a prototype plan which has received a favorable opinion letter) during the period from its adoption to the date of this Agreement and (ii) is funded through a trust exempt from taxation under Section 501(a) of the Code. To the Knowledge of the Purchaser, no fact exists which could adversely affect the qualified status of such Purchaser Benefit Plans or the exempt status of such trusts.
(iii) With respect to each Purchaser Benefit Plan, the Purchaser has made available to the Seller accurate and complete copies, if applicable, of: (i) all Purchaser Benefit Plan documents and agreements and related trust agreements or annuity Contracts (including had any amendments, modifications or supplements thereto); (ii) all summary plan descriptions and material modifications thereto; (iii) the three (3) most recent Forms 5500, if applicable, and annual report, including all schedules thereto; (iv) the most recent annual and periodic accounting of plan assets; (v) the three (3) most recent nondiscrimination testing reports; (vi) the most recent determination letter received from the IRS, if any; (vii) the most recent actuarial valuation; and (viii) all material written communications between the Purchaser or any Subsidiary or any Purchaser Benefit Plan and any Governmental Authority and relating to a Purchaser Benefit Plan within six (6) years preceding the date of this Agreement.
(iv) With respect to each Purchaser Benefit Plan: (i) such Purchaser Benefit Plan has been administered and enforced in all material respects in accordance with its terms, the Code and ERISA; (ii) neither the Purchaser nor any Subsidiary nor any employee, officer or director thereof that is a fiduciary (under ERISA) liability with respect to such Purchaser Benefit Plan or has breached within the past six years maintained or contributed to or had any of its fiduciary responsibilities, obligations or duties imposed on it by ERISA; (iii) no Action is pending or threatened in writing (other than routine claims for benefits arising in the ordinary course of administration); (iv) nothing has occurred liability with respect to any Purchaser Benefit a Pension Plan that has subjected the Purchaser or any Subsidiary to any material penalty under Section 502 of ERISA or Section 4975 of the Code; and (v) all contributions and premiums due through the Closing Date have been made in all material respects as required under ERISA or have been fully accrued in all material respects on the Purchaser Financials.
(v) No Purchaser Benefit Plan is, and neither the Purchaser or any Subsidiary or any of their respective ERISA Affiliates sponsors, maintains, contributes to, is required to contribute to, or otherwise has or could reasonably be expected to have any current or contingent Liability under or with respect to, a “defined benefit plan” (as defined in Section 414(j) of the Code), a “multiemployer plan” (as defined in Section 3(37) of ERISA) or a “multiple employer plan” (as described in Section 413(c) of the Code) or is otherwise subject to Subtitles C or D of Title IV of ERISA or Section 412 of the Code. To the Purchaser’s Knowledge, no Purchaser Benefit Plan will become a multiple employer plan with respect to any Purchaser Entity immediately after the Closing Date. Neither the Purchaser nor any Subsidiary currently (y) maintains or has ever maintained, or is required currently or has ever been required an obligation to contribute to or otherwise participate in, a multiple employer welfare arrangement or voluntary employees’ beneficiary association as defined in Section 501(c)(9) of the Code. For purposes of this Agreement, “ERISA Affiliate” means, had any liability with respect to or has within the past six years maintained or had an obligation to contribute to or had any Personliability with respect to a multiemployer plan.
(c) Neither the execution of this Agreement nor the consummation of the transactions contemplated hereby will (w) entitle any Employees to severance pay or any increase in severance pay upon any termination of employment after the date hereof, (x) accelerate the time of payment or vesting or result in any payment or funding (through a grantor trust or otherwise) of compensation or benefits under, increase the amount payable or result in any other material obligation pursuant to, any Person of the Benefit Plans, (y) limit or entity restrict the right of the Vendors or, after the consummation of the transactions contemplated hereby, the Purchasers, to merge, amend or terminate any of the Benefit Plans or (whether or z) result in payments under any of the Benefit Plans which would not incorporated) that is under common control or treated as one employer be deductible under Section 4001(b)(1) of ERISA or Section 414(b), (c), (m) or (o) 280G of the Code.
(d) None of the Benefit Plans provide benefits beyond retirement or other termination of service to Employees or former employees or to the beneficiaries or dependants of such employees.
Appears in 1 contract
Samples: Asset Purchase Agreement (Alliance Semiconductor Corp /De/)
Benefit Plans. (ia) Set forth on Schedule 3.19(aSection 5.15(a) is a true and complete list of the Seller Disclosure Letter lists each material Benefit Plan of the Purchaser and its Subsidiaries Plan.
(each, a “Purchaser Benefit Plan”). b) With respect to each Purchaser material Benefit Plan, there are no funded benefit obligations for which contributions have Seller has made available to Buyer (A) a copy of the plan document and all amendments thereto (or, if a Benefit Plan is not been materially made reduced to writing, a written summary of such plan’s key terms) and (B) if applicable, a copy of the most recent IRS determination letter or properly accrued and there are no material unfunded benefit obligations that have not been accounted for by reservesopinion letter received, (C) if applicable, each trust agreement, insurance contract, account, or otherwise properly footnoted in accordance other documents that establish the funding of a vehicle for such Benefit Plan, (D) the most recent summary plan description and any summaries of material modifications, (E) if applicable, the Form 5500 annual report for the most recently completed year, including all schedules and attachments, (F) copies of all estimates of potential withdrawal liability or funded status with GAAP on respect to any Benefit Plan that is subject to Title IV of ERISA from each of the Purchaser Financials. last three (3) years; and (G) any written notices, letters, or other material correspondence within the last three (3) years from any Governmental Body.
(c) Except as set forth on Schedule 3.19(a)in Section 5.15(c) of the Seller Disclosure Letter, neither the Purchaser Company nor any Subsidiary of its ERISA Affiliates sponsors, maintains, contributes to, or is required to contribute to or, within the preceding six (6) years has sponsored, maintained, contributed to, or been required to contribute to, or has in the past been a member of incurred, or is reasonably expected to incur, any liability or obligation with respect to (i) a “controlled groupmultiemployer plan” for purposes of as defined in Section 414(b), (c), (m) or (o3(37) of the Code, (ii) a plan that is or was subject to Title IV of ERISA or Section 412 of the Code, (iii) a “defined benefit plan” as defined in Section 3(35) of ERISA, or (iv) a “multiple employer plan” subject to Section 413(c) of the Code; and no such liability or obligation is reasonably expected to result in a liability or obligation of Buyer. No prohibited transaction (within the meaning of Code other than with the Purchaser or another Subsidiary, nor does the Purchaser or any Subsidiary have any Liability Section 4975 and Section 406 of ERISA has occurred with respect to any collectively-bargained for plans, whether Benefit Plan that would reasonably be expected to subject Buyer to a Tax or not subject penalty imposed by either Section 4975 of the Code or Section 502(i) of ERISA in an amount which would reasonably be expected to be material to the provisions Company. All liability of ERISA.
(ii) Each Purchaser the Company and its ERISA Affiliates under Title IV of ERISA that has been incurred with respect to any Benefit Plan described in this Section 5.15(c) in the last six (6) years has been satisfied in all material respects is and each of the Company and its ERISA Affiliates has met in all applicable minimum funding requirements under Section 302 of ERISA and Section 412 of the Code with respect to such Benefit Plans.
(d) Each Benefit Plan, including any associated trust or fund, has been established, and at all relevant times, has been maintained, funded, administered, and operated in compliance with all applicable Laws in all material respectsrespects with its terms and with the applicable requirements of the Code, including ERISA and the Code. regulations issued thereunder and any other Requirements of Law.
(e) Each Purchaser Benefit Plan which is intended to be “qualified” within the meaning of Section 401(a) of the Code (i) has been determined by the IRS to be so qualified (or is based on a prototype plan which has received a favorable determination, or is entitled to rely on an opinion letter) during , from the period from IRS as to its adoption qualification under the Code, and to the Knowledge of Seller, no event has occurred since the date of this Agreement and (ii) is funded through a trust exempt from taxation under Section 501(a) of the Code. To the Knowledge of the Purchaser, no fact exists which could such determination or opinion letter that would reasonably be expected to materially adversely affect the qualified status of such Purchaser Benefit Plans or the tax-exempt status of any such trusts.
(iii) With respect to each Purchaser Benefit Plan, the Purchaser has made available to the Seller accurate and complete copies, if applicable, of: (i) all Purchaser Benefit Plan documents and agreements and related trust agreements or annuity Contracts (including any amendments, modifications or supplements thereto); (ii) all summary plan descriptions and material modifications thereto; (iii) the three (3) most recent Forms 5500, if applicable, and annual report, including all schedules thereto; (iv) the most recent annual and periodic accounting of plan assets; (v) the three (3) most recent nondiscrimination testing reports; (vi) the most recent determination letter received from the IRS, if any; (vii) the most recent actuarial valuation; and (viii) all material written communications between the Purchaser or any Subsidiary or any Purchaser Benefit Plan and any Governmental Authority and relating related trust or result in material liability to a Purchaser Benefit Plan within six (6) years preceding the date of this AgreementBusiness.
(ivf) With respect to each Purchaser Benefit Plan: (i) such Purchaser Benefit Plan has been administered and enforced in all There are no material respects in accordance with its termsactions, the Code and ERISA; (ii) neither the Purchaser nor any Subsidiary nor any employee, officer suits or director thereof that is a fiduciary (under ERISA) with respect to such Purchaser Benefit Plan has breached any of its fiduciary responsibilities, obligations or duties imposed on it by ERISA; (iii) no Action is pending or threatened in writing proceedings (other than routine claims for benefits arising benefits) pending or, to the Knowledge of Seller, threatened in the ordinary course of administration); (iv) nothing has occurred connection with respect to any Purchaser Benefit Plan that would reasonably be expected to result in a material liability to the Business. No Benefit Plan is, or within the last six (6) years has subjected been, the Purchaser subject of an examination or any Subsidiary audit by a Governmental Body, is the subject of an application or filing under, or is a participant in, a government-sponsored amnesty, voluntary compliance, and self-correction of similar program, in each case, that would reasonably be expected to any result in material penalty under Section 502 of ERISA or Section 4975 of liability to the Code; and Business.
(vg) Except as would not reasonably be expected to be material to the Business, taken as a whole, all contributions and premiums due through required to be made under the Closing Date terms of any Benefit Plan to any funds, insurance contracts or trusts established thereunder or in connection therewith have been properly accrued in accordance with GAAP and have been made by the due date thereof (including any valid extension thereof) in all material respects as required under ERISA or have been fully accrued in all material respects on accordance with the Purchaser Financialsterms of such Benefit Plans, the terms of any collective bargaining agreement (to the extent applicable) and applicable statutes, laws and regulations, including ERISA, the Patient Protection and Affordability Act, and the Code.
(vh) Except as set forth in Section 5.15(h) of the Seller Disclosure Letter, or as required by this Agreement, the execution, delivery and performance of this Agreement by Seller and the consummation of the transactions contemplated by this Agreement will not (alone or in combination with any other event) (i) entitle any Business Employee to any payment (including severance or unemployment pay), (ii) result in any payment becoming due, accelerate the time of payment or vesting of benefits, or increase the amount of compensation due to any Business Employee, or (iii) result in the forgiveness of any indebtedness of any Business Employee.
(i) No Purchaser Benefit Plan isPlan, and neither the Purchaser or any Subsidiary or any of their respective ERISA Affiliates sponsorsagreement, maintainscontract, contributes to, is required to contribute toarrangement, or otherwise has or could plan would reasonably be expected to have result, separately or in the aggregate, either alone or together with any current or contingent Liability under or with respect toother event, a in the payment of any “defined benefit planexcess parachute payment” (as defined in within the meaning of Section 414(j) 280G of the CodeCode or in the imposition of an excise Tax under Section 4999 of the Code (or any corresponding provisions of state, local or foreign Tax law). The Company has no obligation to gross up, a compensate, reimburse, indemnify or “multiemployer planmake-whole” (as defined in Section 3(37) of ERISA) any Business Employee for any penalty or a “multiple employer plan” (as Tax, including those described in Section 413(c) or payable by reason of the Code) Sections 280G, 409A or is otherwise subject to Title IV of ERISA or Section 412 of the Code. To the Purchaser’s Knowledge, no Purchaser Benefit Plan will become a multiple employer plan with respect to any Purchaser Entity immediately after the Closing Date. Neither the Purchaser nor any Subsidiary currently maintains or has ever maintained, or is required currently or has ever been required to contribute to or otherwise participate in, a multiple employer welfare arrangement or voluntary employees’ beneficiary association as defined in Section 501(c)(9) of the Code. For purposes of this Agreement, “ERISA Affiliate” means, with respect to any Person, any Person or entity (whether or not incorporated) that is under common control or treated as one employer under Section 4001(b)(1) of ERISA or Section 414(b), (c), (m) or (o) 4999 of the Code.
Appears in 1 contract
Benefit Plans. (ia) Set SCHEDULE 2.18(a) hereto sets forth on Schedule 3.19(a) is a true and complete list of each all material Benefit Plan employee benefit plans and arrangements of the Purchaser and its Subsidiaries any type (eachincluding, a “Purchaser Benefit Plan”). With respect to each Purchaser Benefit Planbut not limited to, there are no funded benefit obligations for which contributions have not been materially made or properly accrued and there are no material unfunded benefit obligations that have not been accounted for by reserves, or otherwise properly footnoted plans described in accordance with GAAP on the Purchaser Financials. Except as set forth on Schedule 3.19(aSections 3(1), neither the Purchaser nor any Subsidiary or has in the past been a member of a “controlled group” for purposes of Section 414(b), (c), (m3(2) or (oand 3(3) of the Code Employee Retirement Income Security Act of 1974, as amended ("ERISA")) maintained by the Seller or Subsidiaries for the benefit of any Employees (the "BENEFIT PLANS"). SCHEDULE 2.18(a) hereto sets forth a complete list of the Benefit Plans which are sponsored by the Seller or an Affiliate of Seller (other than with the Purchaser or another a Subsidiary, nor does the Purchaser or any Subsidiary ) and which have any Liability with respect either provided coverage and benefits directly to any collectively-bargained employees of the Seller or been adopted and participated in or contributed to by a Subsidiary for plans, whether or not subject to the provisions benefit of ERISA.
any employees of such Subsidiary (ii) Each Purchaser Benefit Plan in all material respects is and has been operated in compliance with all applicable Laws in all material respects, including ERISA and the Code"CYRK BENEFIT PLANS"). Each Purchaser Any Benefit Plan which is intended to be “qualified” within the meaning of Section 401(a) not a Cyrk Benefit Plan is a benefit plan or arrangement provided by one of the Code (i) has been determined by the IRS to be so qualified (or is based on a prototype plan which has received a favorable opinion letter) during the period from its adoption to the date of this Agreement and (ii) is funded through a trust exempt from taxation under Section 501(a) of the Code. To the Knowledge of the Purchaser, no fact exists which could adversely affect the qualified status of such Purchaser Benefit Plans or the exempt status of such trustsSubsidiaries.
(iiib) With respect to each Purchaser Benefit Plan, the Purchaser Seller has made available to the Seller accurate Buyer true and complete copies, if applicable, copies of: (i) any and all Purchaser Benefit Plan documents plan texts and agreements and related trust agreements or annuity Contracts (including any amendments, modifications or supplements thereto)agreements; (ii) any and all summary plan descriptions and material modifications thereto; (iii) the three (3) most recent Forms 5500annual report, if applicable, and annual report, including all schedules thereto; (iv) the most recent annual and periodic accounting of plan assets, if applicable; and (v) the three (3) most recent nondiscrimination testing reports; (vi) the most recent determination letter received from the IRSInternal Revenue Service (the "SERVICE"), if any; (vii) the most recent actuarial valuation; and (viii) all material written communications between the Purchaser or any Subsidiary or any Purchaser Benefit Plan and any Governmental Authority and relating to a Purchaser Benefit Plan within six (6) years preceding the date of this Agreementapplicable.
(ivc) With respect to each Purchaser Benefit Plan: (i) such Purchaser Benefit Plan plan has been administered and enforced in all material respects in accordance with its terms, the Code terms and ERISAall applicable laws in all material respects; (ii) neither the Purchaser nor any Subsidiary nor any employee, officer or director thereof that is a no breach of fiduciary (under ERISA) duty has occurred with respect to such Purchaser which the Seller, or any Subsidiary of either or any Benefit Plan has breached may be liable or otherwise damaged in any of its fiduciary responsibilities, obligations or duties imposed on it by ERISAmaterial respect; (iii) no Action is material disputes are pending or threatened in writing (other than routine claims for benefits arising in or, to the ordinary course knowledge of administration)the Seller, threatened; and (iv) nothing to the knowledge of the Seller, no "prohibited transaction" (within the meaning of either Section 4975(c) of the Code or Section 406 of ERISA) has occurred with respect to any Purchaser Benefit Plan that has subjected which the Purchaser Seller or any Subsidiary to may be liable or otherwise damaged in any material penalty under Section 502 of ERISA or Section 4975 of the Code; and (v) all contributions and premiums due through the Closing Date have been made in all material respects as required under ERISA or have been fully accrued in all material respects on the Purchaser Financialsrespect.
(vd) No Purchaser Benefit Plan is, and neither the Purchaser or any Subsidiary or any of their respective ERISA Affiliates sponsors, maintains, contributes to, is required to contribute to, or otherwise has or could reasonably be expected to have any current or contingent Liability under or with respect to, a “defined benefit plan” (as defined in Section 414(j) of the Code), a “multiemployer plan” (as defined in Section 3(37) of ERISA) or a “multiple employer plan” (as described in Section 413(c) of the Code) or is otherwise subject to Title IV of ERISA or Section 412 of the Code. To the Purchaser’s Knowledge, no Purchaser No Benefit Plan will become is a multiple employer plan "multiemployer plan" within the meaning of Section 3(37) of ERISA and the Seller and the Subsidiaries have never been participating employers in any "multiemployer plan". No reportable event, or event or condition which presents a material risk of termination by the Pension Benefits Guaranty Corporation, has occurred with respect to any Purchaser Entity immediately after the Closing Date. Neither the Purchaser nor any Subsidiary currently maintains or has ever maintained, or Benefit Plan which is required currently or has ever been required subject to contribute to or otherwise participate in, a multiple employer welfare arrangement or voluntary employees’ beneficiary association as defined in Section 501(c)(9) Title IV of the Code. For purposes of this Agreement, “ERISA Affiliate” means, with respect to any Person, any Person or entity (whether or not incorporated) that is under common control or treated as one employer under Section 4001(b)(1) of ERISA or Section 414(b), (c), (m) or (o) of the CodeERISA.
Appears in 1 contract
Samples: Purchase Agreement (Cyrk Inc)
Benefit Plans. (ia) Set forth on Schedule 3.19(a4.12(a) is a true and complete list of each material Benefit Plan of the Purchaser and its Subsidiaries (each, a “Purchaser Benefit Plan”). With respect to each Purchaser Benefit Plan, there are no funded benefit obligations for which contributions have not been materially made or properly accrued and there are no material unfunded benefit obligations that have not been accounted for by reserves, or otherwise properly footnoted in accordance with GAAP on the Purchaser Financials. Except as set forth on Schedule 3.19(a), neither the Purchaser is not nor any Subsidiary or has in the past been a member of a “controlled group” for purposes of Section 414(b), (c), (m) or (o) of the Code other than with the Purchaser or another SubsidiaryCode, nor does the Purchaser or any Subsidiary have any Liability with respect to any collectively-bargained for plans, whether or not subject to the provisions of ERISA. No statement, either written or oral, has been made by Purchaser to any Person with regard to any Purchaser Benefit Plan that was not in accordance with the Purchaser Benefit Plan in any material respect.
(iib) Each Purchaser Benefit Plan in all material respects is and has been operated at all times in compliance with all applicable Laws in all material respects, including ERISA and the Code. Each Purchaser Benefit Plan which is intended to be “qualified” within the meaning of Section 401(a) of the Code (i) has been determined by the IRS to be so qualified (or is based on a prototype plan which has received a favorable opinion letter) during the period from its adoption to the date of this Agreement and (ii) is funded through a its related trust has been determined to be exempt from taxation under Section 501(a) of the CodeCode or Purchaser have requested an initial favorable IRS determination of qualification and/or exemption within the period permitted by applicable Law. To the Knowledge of the Purchaser, no No fact exists which could adversely affect the qualified status of such Purchaser Benefit Plans or the exempt status of such trusts.
(iii) With respect to each Purchaser Benefit Plan, the Purchaser has made available to the Seller accurate and complete copies, if applicable, of: (i) all Purchaser Benefit Plan documents and agreements and related trust agreements or annuity Contracts (including any amendments, modifications or supplements thereto); (ii) all summary plan descriptions and material modifications thereto; (iii) the three (3) most recent Forms 5500, if applicable, and annual report, including all schedules thereto; (iv) the most recent annual and periodic accounting of plan assets; (v) the three (3) most recent nondiscrimination testing reports; (vi) the most recent determination letter received from the IRS, if any; (vii) the most recent actuarial valuation; and (viii) all material written communications between the Purchaser or any Subsidiary or any Purchaser Benefit Plan and any Governmental Authority and relating to a Purchaser Benefit Plan within six (6) years preceding the date of this Agreement.
(ivc) With respect to each Purchaser Benefit Plan: (i) such Purchaser Benefit Plan has been administered and enforced in all material respects in accordance with its terms, the Code and ERISA; (ii) neither the Purchaser nor any Subsidiary nor any employee, officer or director thereof that is a no breach of fiduciary (under ERISA) with respect to such Purchaser Benefit Plan duty has breached any of its fiduciary responsibilities, obligations or duties imposed on it by ERISAoccurred; (iii) no Action is pending pending, or to Purchaser’s Knowledge, threatened in writing (other than routine claims for benefits arising in the ordinary course of administration); (iv) nothing has occurred with respect to any Purchaser Benefit Plan that has subjected the Purchaser or any Subsidiary to any material penalty under no prohibited transaction, as defined in Section 502 406 of ERISA or Section 4975 of the Code, has occurred, excluding transactions effected pursuant to a statutory or administration exemption; and (v) all contributions and premiums due through the Closing Date have been made in all material respects as required under ERISA or have been fully accrued in all material respects on the Purchaser Financials.
(vd) No Purchaser Benefit Plan is, and neither the Purchaser or any Subsidiary or any of their respective ERISA Affiliates sponsors, maintains, contributes to, is required to contribute to, or otherwise has or could reasonably be expected to have any current or contingent Liability under or with respect to, a “defined benefit plan” (as defined in Section 414(j) of the Code), a “multiemployer plan” (as defined in Section 3(37) of ERISA) or a “multiple employer plan” (as described in Section 413(c) of the Code) or is otherwise subject to Title IV of ERISA or Section 412 of the Code, and Purchaser has not incurred any Liability or otherwise could have any Liability, contingent or otherwise, under Title IV of ERISA and no condition presently exists that is expected to cause such Liability to be incurred. To the Purchaser’s Knowledge, no No Purchaser Benefit Plan will become a multiple employer plan with respect to any the Purchaser Entity immediately after the Closing Date. Neither the Purchaser nor any Subsidiary does not currently maintains or has ever maintained, or is required currently or has ever been required to contribute to or otherwise participate in, a multiple employer welfare arrangement or voluntary employees’ beneficiary association as defined in Section 501(c)(9) of the Code. For purposes of this Agreement, “ERISA Affiliate” means, .
(e) There is no arrangement under any Purchaser Benefit Plan with respect to any Personemployee that would result in the payment of any amount that by operation of Sections 280G or 162(m) of the Code would not be deductible by the Purchaser and no arrangement exists pursuant to which the Purchaser will be required to “gross up” or otherwise compensate any person because of the imposition of any excise tax on a payment to such person.
(f) The consummation of the transactions contemplated by this Agreement and the Ancillary Documents will not: (i) entitle any individual to severance pay, unemployment compensation or other benefits or compensation; (ii) accelerate the time of payment or vesting, or increase the amount of any compensation due, or in respect of, any Person individual; or entity (whether iii) result in or satisfy a condition to the payment of compensation that would, in combination with any other payment, result in an “excess parachute payment” within the meaning of Section 280G of the Code. Purchaser has not incorporated) that is incurred any Liability for any Tax imposed under common control Chapter 43 of the Code or treated as one employer civil liability under Section 4001(b)(1) of ERISA or Section 414(b), (c), (m502(i) or (ol) of ERISA.
(g) Except to the Codeextent required by Section 4980B of the Code or similar state Law, Purchaser does not provide health or welfare benefits to any former or retired employee or is obligated to provide such benefits to any active employee following such employee’s retirement or other termination of employment or service.
Appears in 1 contract
Samples: Share Exchange Agreement (Lm Funding America, Inc.)
Benefit Plans. (ia) Set Each "employee pension benefit plan" (as defined in Section 3(2) of the Employee Retirement Income Security Act of 1974, as amended 20 25 ("ERISA")) (a "Pension Plan"), "employee welfare benefit plan" (as defined in Section 3(1) of ERISA) (a "Welfare Plan") and each other plan, pension or welfare arrangement or policy (written or oral) relating to stock options, stock purchases, compensation, deferred compensation, bonuses, severance, fringe benefits or other employee benefits, in each case maintained or contributed to, or required to be maintained or contributed to, by the Company for the benefit of any present or former employee, officer or director (each of the foregoing, a "Benefit Plan") has been administered in all material respects in accordance with its terms. The Company and all the Benefit Plans are in compliance in all material respects with the applicable provisions of ERISA, the Code and all other applicable laws.
(b) Schedule 4.10 of the Company Disclosure Schedule sets forth on Schedule 3.19(a) is a true and complete list of each material Benefit Plan as well as each employment, termination, indemnity, consulting and severance agreement and any and all other contracts, binding arrangements and understandings (whether written or oral) with any present or former directors, officers, employees or consultants of the Purchaser Company.
(c) None of the Pension Plans is subject to Title IV of ERISA or Section 412 of the Code and its Subsidiaries none of the Company or any other person or entity that, together with the Company, is treated as a single employer under Section 414 (each, a “Purchaser Benefit Plan”). With respect to each Purchaser Benefit Plan, there are no funded benefit obligations for which contributions have not been materially made or properly accrued and there are no material unfunded benefit obligations that have not been accounted for by reserves, or otherwise properly footnoted in accordance with GAAP on the Purchaser Financials. Except as set forth on Schedule 3.19(a), neither the Purchaser nor any Subsidiary or has in the past been a member of a “controlled group” for purposes of Section 414(bb), (c), (m) or (o) of the Code other than with the Purchaser or another Subsidiary, nor does the Purchaser or any Subsidiary have any Liability with respect to any collectively-bargained for plans, whether or not subject to the provisions of ERISA.
(ii) Each Purchaser Benefit Plan in all material respects is and has been operated in compliance with all applicable Laws in all material respectseach, including ERISA and the Code. Each Purchaser Benefit Plan which is intended to be “qualified” within the meaning of Section 401(a) of the Code Company, a "Commonly Controlled Entity"): (i) currently has been determined by the IRS to be so qualified (or is based on a prototype plan which has received a favorable opinion letter) during the period from its adoption to the date of this Agreement and (ii) is funded through a trust exempt from taxation under Section 501(a) of the Code. To the Knowledge of the Purchaser, no fact exists which could adversely affect the qualified status of such Purchaser Benefit Plans or the exempt status of such trusts.
(iii) With respect to each Purchaser Benefit Plan, the Purchaser has made available to the Seller accurate and complete copies, if applicable, of: (i) all Purchaser Benefit Plan documents and agreements and related trust agreements or annuity Contracts (including any amendments, modifications or supplements thereto); (ii) all summary plan descriptions and material modifications thereto; (iii) the three (3) most recent Forms 5500, if applicable, and annual report, including all schedules thereto; (iv) the most recent annual and periodic accounting of plan assets; (v) the three (3) most recent nondiscrimination testing reports; (vi) the most recent determination letter received from the IRS, if any; (vii) the most recent actuarial valuation; and (viii) all material written communications between the Purchaser or any Subsidiary or any Purchaser Benefit Plan and any Governmental Authority and relating to a Purchaser Benefit Plan within six (6) years preceding the date of this Agreement.
(iv) With respect to each Purchaser Benefit Plan: (i) such Purchaser Benefit Plan has been administered and enforced in all material respects in accordance with its terms, the Code and ERISA; (ii) neither the Purchaser nor any Subsidiary nor any employee, officer or director thereof that is a fiduciary (under ERISA) with respect to such Purchaser Benefit Plan has breached any of its fiduciary responsibilities, obligations or duties imposed on it by ERISA; (iii) no Action is pending or threatened in writing (other than routine claims for benefits arising in the ordinary course of administration); (iv) nothing has occurred with respect to any Purchaser Benefit Plan that has subjected the Purchaser or any Subsidiary to any material penalty under Section 502 of ERISA or Section 4975 of the Code; and (v) all contributions and premiums due through the Closing Date have been made in all material respects as required under ERISA or have been fully accrued in all material respects on the Purchaser Financials.
(v) No Purchaser Benefit Plan is, and neither the Purchaser or any Subsidiary or any of their respective ERISA Affiliates sponsors, maintains, contributes to, is required an obligation to contribute to, or otherwise has or could reasonably be expected during any time during the last six years had an obligation to have any current or contingent Liability under or with respect contribute to, a “defined benefit plan” (as defined in Section 414(j) of the Code), a “multiemployer plan” (as defined in Section 3(37) of ERISA) or a “multiple employer plan” (as described in Section 413(c) of the Code) or is otherwise Pension Plan subject to Title IV of ERISA or Section 412 of the Code, or (ii) has incurred any liability to the Pension Benefit Guaranty Corporation, which liability has not been fully paid. To All contributions and other payments required to be made by the Purchaser’s Knowledge, no Purchaser Benefit Company to any Pension Plan will become a multiple employer plan with respect to any Purchaser Entity immediately after period ending before the Closing Date. Date have been made or reserves adequate for such contributions or other payments have been or will be set aside therefor and have been or will be reflected in financial statements.
(d) Neither the Purchaser Company nor any Subsidiary currently maintains or has ever maintained, or Commonly Controlled Entity is required currently or has ever been required to contribute to or otherwise participate in, a multiple employer welfare arrangement or voluntary employees’ beneficiary association any "multiemployer plan" (as defined in Section 501(c)(94001(a)(3) of ERISA) or has withdrawn from any multiemployer plan where such withdrawal has resulted or would result in any "withdrawal liability" (within the 21 26 meaning of Section 4201 of ERISA) or "mass withdrawal liability" within the meaning of PBGC Regulation 4219.2 that has not been fully paid.
(e) Except as set forth on Schedule 4.10 of the Company Disclosure Schedule, each Benefit Plan (and its related trust, if any) that is intended to be qualified under Section s 401 and 501(a) of the Code. For purposes Code has been determined by the IRS to qualify under such sections and nothing has occurred to cause the loss of this Agreement, “ERISA Affiliate” means, with respect to any Person, any Person or entity such qualified status.
(whether or not incorporatedf) Each Benefit Plan that is under common control a Welfare Plan may be amended or treated terminated at any time after the Effective Time without material liability to the Company.
(g) Except as one employer set forth on Schedule 4.10 of the Company Disclosure Schedule, or as required under Section 4001(b)(1) of ERISA or Section 414(b), (c), (m) or (o) 4980B of the Code, the Company does not have any obligation to provide post-retirement health benefits.
(h) The Company has heretofore delivered to Parent correct and complete copies of each of the following:
(i) All written, and descriptions of all binding oral, employment, termination, consulting and severance agreements, contracts, arrangements and understandings listed on Schedule 4.10 of the Company Disclosure Schedule;
(ii) Each Benefit Plan and all amendments thereto; the trust instrument and/or insurance contracts, if any, forming a part of such Benefit Plan and all amendments thereto;
(iii) The most recent IRS Form 5500 and all schedules thereto, if any;
(iv) The most recent determination letter issued by the IRS regarding the qualified status of each such Pension Plan;
(v) The most recent accountant's report, if any; and
(vi) The most recent summary plan description, if any.
Appears in 1 contract
Benefit Plans. (i) Set Schedule 4.11 sets forth on Schedule 3.19(a) is a true and complete list of each material Benefit Plan of the Purchaser and its Subsidiaries (each, a “Purchaser Benefit LED Employee Plan”). With respect to each Purchaser Benefit Plan, there are no funded benefit obligations for which contributions have not been materially made or properly accrued and there are no material unfunded benefit obligations that have not been accounted for by reserves, or otherwise properly footnoted in accordance with GAAP on the Purchaser Financials. Except as set forth on Schedule 3.19(a), neither the Purchaser nor any Subsidiary or has in the past been a member of a “controlled group” for purposes of Section 414(b), (c), (m) or (o) of the Code other than with the Purchaser or another Subsidiary, nor does the Purchaser or any Subsidiary have any Liability with respect to any collectively-bargained for plans, whether or not subject to the provisions of ERISA.
(ii) Each Purchaser Benefit Plan in all material respects is and has been operated in compliance with all applicable Laws in all material respects, including ERISA and the Code. Each Purchaser Benefit Plan which is intended to be “qualified” within the meaning of Section 401(a) of the Code (i) has been determined by the IRS to be so qualified (or is based on a prototype plan which has received a favorable opinion letter) during the period from its adoption to the date of this Agreement and (ii) is funded through a trust exempt from taxation under Section 501(a) of the Code. To the Knowledge of the Purchaser, no fact exists which could adversely affect the qualified status of such Purchaser Benefit Plans or the exempt status of such trusts.
(iii) With respect to each Purchaser Benefit Plan, the Purchaser has made available to the Seller accurate and complete copies, if applicable, of: (i) all Purchaser Benefit Plan documents and agreements and related trust agreements or annuity Contracts (including any amendments, modifications or supplements thereto); (ii) all summary plan descriptions and material modifications thereto; (iii) the three (3) most recent Forms 5500, if applicable, and annual report, including all schedules thereto; (iv) the most recent annual and periodic accounting of plan assets; (v) the three (3) most recent nondiscrimination testing reports; (vi) the most recent determination letter received from the IRS, if any; (vii) the most recent actuarial valuation; and (viii) all material written communications between the Purchaser or any Subsidiary or any Purchaser Benefit Plan and any Governmental Authority and relating to a Purchaser Benefit Plan within six (6) years preceding the date of this Agreement.
(iv) With respect to each Purchaser Benefit Plan: (i) such Purchaser Benefit LED Employee Plan has been established, operated and administered and enforced in all material respects in accordance with its terms, and each such LED Employee Plan is in material compliance with all applicable Laws. All contributions (including all employer contributions and employee salary reduction contributions) and premiums required to have been paid by LED to any LED Employee Plan under the Code terms of any such LED Employee Plan or its related trust, insurance contract or other funding arrangement, or pursuant to any applicable law have been paid within the time prescribed by any such LED Employee Plan, trust, contract or arrangement, or applicable Law. All contributions and premiums for any period ending on or before the Closing Date that are not yet due have been made to each such LED Employee Plan or its related trust, insurance contract or other funding arrangement. No LED Employee Plan is (i) a "multiple employer plan" for purposes of Sections 4063 or 4064 of ERISA; , (ii) neither subject to Section 412 of the Purchaser nor any Subsidiary nor any employeeCode or Section 302 or Title IV of ERISA, officer or director thereof that is a fiduciary (under ERISA) with respect to such Purchaser Benefit Plan has breached any of its fiduciary responsibilities, obligations or duties imposed on it by ERISA; (iii) no Action is pending or threatened in writing a "multiemployer plan" (other than routine claims for benefits arising in within the ordinary course meaning of administrationSection 4001(a)(3) of ERISA); , (iv) nothing has occurred with respect intended to any Purchaser Benefit Plan that has subjected satisfy the Purchaser or any Subsidiary to any material penalty under requirements of Section 502 of ERISA or Section 4975 of the Code; and (v) all contributions and premiums due through the Closing Date have been made in all material respects as required under ERISA or have been fully accrued in all material respects on the Purchaser Financials.
(v) No Purchaser Benefit Plan is, and neither the Purchaser or any Subsidiary or any of their respective ERISA Affiliates sponsors, maintains, contributes to, is required to contribute to, or otherwise has or could reasonably be expected to have any current or contingent Liability under or with respect to, a “defined benefit plan” (as defined in Section 414(j403(a) of the Code), a “multiemployer plan” (as defined in Section 3(37) of ERISA) or a “multiple employer plan” (as described in Section 413(c) of the Code) or is otherwise subject to Title IV of ERISA or Section 412 of the Code. To the Purchaser’s Knowledge, no Purchaser Benefit Plan will become a multiple employer plan with respect to any Purchaser Entity immediately after the Closing Date. Neither the Purchaser nor any Subsidiary currently maintains or has ever maintained, or is required currently or has ever been required (v) intended to contribute to or otherwise participate in, a multiple employer welfare arrangement or voluntary employees’ beneficiary association as defined in be qualified under Section 501(c)(9401(a) of the Code. For purposes Neither LED nor any LED ERISA Affiliate has incurred any liability (including as a result of this Agreementany indemnification obligation) under Title I or Title IV of ERISA for which LED could be liable. No event has occurred, “no condition exists, and there are no pending or, to the Knowledge of LED, threatened claims by or on behalf of any LED Employee Plan by any person covered thereby (other than ordinary claims for benefits submitted by participants or beneficiaries) or any Governmental Authority that would subject LED, either directly or by reason of affiliation with an LED ERISA Affiliate” means, with to any material Tax, fine, Encumbrance, or other liability imposed by ERISA, the Code or other applicable Law. No asset of LED is subject to any Encumbrance under ERISA or the Code. With respect to each LED Employee Plan, LED has provided or made available to LSG true and complete copies of: (i) such LED Employee Plan, if written, or a description of such LED Employee Plan, if not written, and (ii) to the extent applicable to such LED Employee Plan: all trust agreements, insurance contracts or other funding arrangements; the three most recent Forms 5500 required to have been filed with the IRS and all schedules thereto; all current summary plan descriptions, all material communications received from or sent to the IRS or the Department of Labor (including a written description of any Personoral communication); and all amendments and modifications to any such document. No LED Employee Plan exists that could result in the payment to any Continued Employee of any money or other property (including any severance payments, any Person or entity (whether or not incorporated) that is under common control or treated as one employer under Section 4001(b)(1) bonus of ERISA or Section 414(b), (c), (mother compensation) or (o) in the acceleration of any other rights or benefits to any Continued Employee as a result of the Codetransactions contemplated herein.
Appears in 1 contract
Samples: Exchange and Contribution Agreement (Lighting Science Group Corp)
Benefit Plans. (ia) Set forth on Schedule 3.19(a) 3.18 is a true and complete list of each material Benefit Plan of the Purchaser and its Subsidiaries Company (each, a “Purchaser Company Benefit Plan”). With respect to each Purchaser Company Benefit Plan, there are no funded benefit obligations for which contributions have not been materially made or properly accrued and there are no material unfunded benefit obligations that have not been accounted for by reserves, or otherwise properly footnoted in accordance with GAAP on the Purchaser Company Financials. Except as set forth on Schedule 3.19(a), neither the Purchaser The Company is not nor any Subsidiary or has in the past been a member of a “controlled group” for purposes of Section 414(b), (c), (m) or (o) of the Code other than with the Purchaser or another SubsidiaryCode, nor does the Purchaser or any Subsidiary Company have any Liability with respect to any collectively-bargained for plans, whether or not subject to the provisions of ERISA. No statement, either written or oral, has been made by the Company to any Person with regard to any Company Benefit Plan that was not in accordance with the Company Benefit Plan in any material respect.
(iib) Each Purchaser Company Benefit Plan in all material respects is and has been operated at all times in compliance with all applicable Laws in all material respects, including ERISA and the Code. Each Purchaser Company Benefit Plan which is intended to be “qualified” within the meaning of Section 401(a) of the Code (i) has been determined by the IRS to be so qualified (or is based on a prototype plan which has received a favorable opinion letter) during the period from its adoption to the date of this Agreement and (ii) is funded through a its related trust has been determined to be exempt from taxation under Section 501(a) of the CodeCode or the Company have requested an initial favorable IRS determination of qualification and/or exemption within the period permitted by applicable Law. To the Knowledge of the Purchaser, no No fact exists which could adversely affect the qualified status of such Purchaser Company Benefit Plans or the exempt status of such trusts.
(iiic) With respect to each Purchaser Benefit Plan, the Purchaser has made available to the Seller accurate and complete copies, if applicable, of: (i) all Purchaser Benefit Plan documents and agreements and related trust agreements or annuity Contracts (including any amendments, modifications or supplements thereto); (ii) all summary plan descriptions and material modifications thereto; (iii) the three (3) most recent Forms 5500, if applicable, and annual report, including all schedules thereto; (iv) the most recent annual and periodic accounting of plan assets; (v) the three (3) most recent nondiscrimination testing reports; (vi) the most recent determination letter received from the IRS, if any; (vii) the most recent actuarial valuation; and (viii) all material written communications between the Purchaser or any Subsidiary or any Purchaser Benefit Plan and any Governmental Authority and relating to a Purchaser Benefit Plan within six (6) years preceding the date of this Agreement.
(iv) With respect to each Purchaser Company Benefit Plan: (i) such Purchaser Company Benefit Plan has been administered and enforced in all material respects in accordance with its terms, the Code and ERISA; (ii) neither the Purchaser nor any Subsidiary nor any employee, officer or director thereof that is a no breach of fiduciary (under ERISA) with respect to such Purchaser Benefit Plan duty has breached any of its fiduciary responsibilities, obligations or duties imposed on it by ERISAoccurred; (iii) no Action is pending pending, or to the Company’s Knowledge, threatened in writing (other than routine claims for benefits arising in the ordinary course of administration); (iv) nothing has occurred with respect to any Purchaser Benefit Plan that has subjected the Purchaser or any Subsidiary to any material penalty under no prohibited transaction, as defined in Section 502 406 of ERISA or Section 4975 of the Code, has occurred, excluding transactions effected pursuant to a statutory or administration exemption; and (v) all contributions and premiums due through the Closing Date have been made in all material respects as required under ERISA or have been fully accrued in all material respects on the Purchaser Company Financials.
(vd) No Purchaser Company Benefit Plan is, and neither the Purchaser or any Subsidiary or any of their respective ERISA Affiliates sponsors, maintains, contributes to, is required to contribute to, or otherwise has or could reasonably be expected to have any current or contingent Liability under or with respect to, a “defined benefit plan” (as defined in Section 414(j) of the Code), a “multiemployer plan” (as defined in Section 3(37) of ERISA) or a “multiple employer plan” (as described in Section 413(c) of the Code) or is otherwise subject to Title IV of ERISA or Section 412 of the Code, and no Target Company has incurred any Liability or otherwise could have any Liability, contingent or otherwise, under Title IV of ERISA and no condition presently exists that is expected to cause such Liability to be incurred. To the Purchaser’s Knowledge, no Purchaser No Company Benefit Plan will become a multiple employer plan with respect to any Purchaser Entity the Company immediately after the Closing Date. Neither the Purchaser nor any Subsidiary No Target Company currently maintains or has ever maintained, or is required currently or has ever been required to contribute to or otherwise participate in, a multiple employer welfare arrangement or voluntary employees’ beneficiary association as defined in Section 501(c)(9) of the Code. For purposes of this Agreement, “ERISA Affiliate” means, .
(e) There is no arrangement under any Company Benefit Plan with respect to any Personemployee that would result in the payment of any amount that by operation of Sections 280G or 162(m) of the Code would not be deductible by the Company and no arrangement exists pursuant to which the Company will be required to “gross up” or otherwise compensate any person because of the imposition of any excise tax on a payment to such person.
(f) The consummation of the transactions contemplated by this Agreement and the Ancillary Documents will not: (i) entitle any individual to severance pay, unemployment compensation or other benefits or compensation; (ii) accelerate the time of payment or vesting, or increase the amount of any compensation due, or in respect of, any Person individual; or entity (whether iii) result in or satisfy a condition to the payment of compensation that would, in combination with any other payment, result in an “excess parachute payment” within the meaning of Section 280G of the Code. The Company has not incorporated) that is incurred any Liability for any Tax imposed under common control Chapter 43 of the Code or treated as one employer civil liability under Section 4001(b)(1) of ERISA or Section 414(b), (c), (m502(i) or (ol) of ERISA.
(g) Except to the Codeextent required by Section 4980B of the Code or similar state Law, the Company does not provide health or welfare benefits to any former or retired employee or is obligated to provide such benefits to any active employee following such employee’s retirement or other termination of employment or service.
Appears in 1 contract
Samples: Merger Agreement (Spherix Inc)
Benefit Plans. (ia) Set forth on Schedule 3.19(a5.19(a) is a true and complete list of each material Benefit Plan of the Purchaser and its Subsidiaries a Target Company (each, a “Purchaser Company Benefit Plan”). With respect to each Purchaser Company Benefit Plan, there are no funded benefit obligations for which contributions have not been materially made or properly accrued and there are no material unfunded benefit obligations that have not been accounted for by reserves, or otherwise properly footnoted in accordance with GAAP on the Purchaser Company Financials. Except as set forth on Schedule 3.19(a), neither the Purchaser nor any Subsidiary No Target Company is or has in the past been a member of a “controlled group” for purposes of Section 414(b), (c), (m) or (o) of the Code other than with the Purchaser or another SubsidiaryCode, nor does the Purchaser or any Subsidiary Target Company have any Liability with respect to any collectively-bargained for plans, whether or not subject to the provisions of ERISA. No statement, either written or oral, has been made by any Target Company to any Person with regard to any Company Benefit Plan that was not in accordance with the Company Benefit Plan in any material respect.
(iib) Each Purchaser Except as set forth in Schedule 5.19(b), each Company Benefit Plan in all material respects is and has been operated at all times in compliance with all applicable Laws in all material respects, including ERISA and the Code. Each Purchaser Company Benefit Plan which is intended to be “qualified” within the meaning of Section 401(a) of the Code (i) has been determined by the IRS to be so qualified (or is based on a prototype plan which has received a favorable opinion letter) during the period from its adoption to the date of this Agreement and (ii) is funded through a its related trust has been determined to be exempt from taxation under Section 501(a) of the CodeCode or the Target Companies have requested an initial favorable IRS determination of qualification and/or exemption within the period permitted by applicable Law. To the Knowledge of the Purchaser, no No fact exists which could adversely affect the qualified status of such Purchaser Company Benefit Plans or the exempt status of such trusts.
(iiic) With respect to each Purchaser Company Benefit PlanPlan which covers any current or former officer, director, consultant or employee (or beneficiary thereof) of a Target Company, the Company has provided to Purchaser has made available to the Seller accurate and complete copies, if applicable, of: (i) all Purchaser Company Benefit Plan documents texts and agreements and related trust agreements or annuity Contracts (including any amendments, modifications or supplements thereto); (ii) all summary plan descriptions and material modifications thereto; (iii) the three (3) most recent Forms 5500, if applicable, and annual report, including all schedules thereto; (iv) the most recent annual and periodic accounting of plan assets; (v) the three (3) most recent nondiscrimination testing reports; (vi) the most recent determination letter received from the IRS, if any; (vii) the most recent actuarial valuation; and (viii) all material written communications between the Purchaser or any Subsidiary or any Purchaser Benefit Plan and with any Governmental Authority and relating to a Purchaser Benefit Plan within six (6) years preceding the date of this AgreementAuthority.
(ivd) With Except as set forth in Schedule 5.19(d), with respect to each Purchaser Company Benefit Plan: (i) such Purchaser Company Benefit Plan has been administered and enforced in all material respects in accordance with its terms, the Code and ERISA; (ii) neither the Purchaser nor no breach of fiduciary duty that could reasonably be expected to result in liability to any Subsidiary nor any employee, officer or director thereof that is a fiduciary (under ERISA) with respect to such Purchaser Benefit Plan Target Company has breached any of its fiduciary responsibilities, obligations or duties imposed on it by ERISAoccurred; (iii) no Action is pending pending, or to the Company’s Knowledge, threatened in writing (other than routine claims for benefits arising in the ordinary course of administration); (iv) nothing has occurred with respect to any Purchaser Benefit Plan that has subjected the Purchaser or any Subsidiary to any material penalty under no prohibited transaction, as defined in Section 502 406 of ERISA or Section 4975 of the Code, has occurred that could reasonably be likely to result in liability to any Target Company, excluding transactions effected pursuant to a statutory or administration exemption; and (v) all contributions and premiums due through the Closing Date have been made in all material respects as required under ERISA or have been fully accrued in all material respects on the Purchaser Company Financials.
(ve) No Purchaser Benefit Plan isDuring the six (6) year period preceding the Effective Time, and neither the Purchaser or any Subsidiary no Target Company or any of their respective ERISA Affiliates sponsorshas maintained, maintains, contributes to, is required to contribute contributed to, or otherwise has or could reasonably be expected had an obligation to have any current or contingent Liability under or with respect to, contribute to (i) a “defined benefit plan” (as defined in Section 414(j) of the Code), (ii) a “multiemployer plan” (as defined in Section 3(37) of ERISA) or (iii) a “multiple employer plan” (as described in Section 413(c) of the Code) or ). No Company Benefit Plan is otherwise subject to Title IV of ERISA or Section 412 of the Code, and neither the Target Company nor any ERISA Affiliate has incurred any Liability or otherwise could have any Liability, contingent or otherwise, under Title IV of ERISA and no condition presently exists that is expected to cause such Liability to be incurred. To the Purchaser’s Knowledge, no Purchaser No Company Benefit Plan will become a multiple employer plan with respect to any Purchaser Entity Target Company immediately after the Closing Date. Neither the Purchaser nor any Subsidiary No Target Company currently maintains or has ever maintained, or is required currently or has ever been required to contribute to or otherwise participate in, a multiple employer welfare arrangement or voluntary employees’ beneficiary association as defined in Section 501(c)(9) of the Code. For purposes of this Agreement, “ERISA Affiliate” means, .
(f) There is no arrangement under any Company Benefit Plan with respect to any Personemployee that would result in the payment of any amount that by operation of Sections 280G or 162(m) of the Code would not be deductible by the Target Companies and no arrangement exists pursuant to which a Target Company will be required to “gross up” or otherwise compensate any person because of the imposition of any excise tax on a payment to such person.
(g) With respect to each Company Benefit Plan which is a “welfare plan” (as described in Section 3(1) of ERISA): (i) no such plan provides medical or death benefits with respect to current or former employees of a Target Company beyond their termination of employment (other than coverage mandated by Law, which is paid solely by such employees); and (ii) there are no reserves, assets, surplus or prepaid premiums under any such plan. Each Target Company has complied with the provisions of Section 601 et seq. of ERISA and Section 4980B of the Code.
(h) Except as set forth in Schedule 5.19(h), the consummation of the transactions contemplated by this Agreement and the Ancillary Documents will not: (i) entitle any individual to severance pay, unemployment compensation or other benefits or compensation; (ii) accelerate the time of payment or vesting, or increase the amount of any compensation due, or in respect of, any Person individual; or entity (iii) result in or satisfy a condition to the payment of compensation that would, in combination with any other payment, result in an “excess parachute payment” within the meaning of Section 280G of the Code. No Target Company has incurred any Liability for any Tax imposed under Chapter 43 of the Code or civil liability under Section 502(i) or (l) of ERISA.
(i) Except to the extent required by Section 4980B of the Code or similar state Law, no Target Company provides health or welfare benefits to any former or retired employee or is obligated to provide such benefits to any active employee following such employee’s retirement or other termination of employment or service.
(j) All Company Benefit Plans can be terminated at any time as of or after the Closing Date without resulting in any Liability to the Surviving Subsidiaries or Pubco, or their respective Affiliates for any additional contributions, penalties, premiums, fees, fines, excise taxes or any other charges or liabilities.
(k) Each Company Benefit Plan that is subject to Section 409A of the Code (each, a “Section 409A Plan”) as of the Closing Date is indicated as such on Schedule 5.19(k). No Company Options or other equity-based awards have been issued or granted by the Company that are, or are subject to, a Section 409A Plan. Except as set forth in Schedule 5.19(k), (i) each Section 409A Plan has been administered in compliance, and is in documentary compliance, with the applicable provisions of Section 409A of the Code, the regulations thereunder and other official guidance issued thereunder; (ii) no Target Company has any obligation to any employee or other service provider with respect to any Section 409A Plan that may be subject to any Tax under Section 409A of the Code; and (iii) no payment to be made under any Section 409A Plan is, or to the Knowledge of the Company will be, subject to the penalties of Section 409A(a)(1) of the Code. There is no Contract or plan to which any Target Company is a party or by which it is bound to compensate any employee, consultant or director for any Taxes or interest imposed pursuant to Section 409A of the Code.
(l) Each Foreign Pension Plan has been maintained in substantial compliance with its terms and with the requirements of all applicable Laws and has been maintained, where required, in good standing with applicable regulatory authorities. All contributions required to be made with respect to a Foreign Pension Plan have been timely made. No Target Company has incurred any obligation in connection with the termination of, or withdrawal from, any Foreign Pension Plan. The present value of the accrued benefit liabilities (whether or not incorporatedvested) that is under common control or treated each Foreign Pension Plan, determined as one employer under Section 4001(b)(1) of ERISA or Section 414(b), (c), (m) or (o) of the Codeend of the Target Company’s most recently ended fiscal year on the basis of actuarial assumptions, each of which is reasonable, did not exceed the current value of the assets of such Foreign Pension Plan allocable to such benefit liabilities.
Appears in 1 contract
Samples: Merger Agreement (Americas Technology Acquisition Corp.)
Benefit Plans. (a) Schedule 4.7(a) lists: (i) Set forth on Schedule 3.19(a) is a true and complete list of each material Employee Benefit Plan contributed to, sponsored or maintained by Seller or a Selling Party as of the Purchaser date hereof, in each case, for the benefit of any Prospective Employee; and its Subsidiaries (eachii) each material employment agreement with any Material Employee, a “Purchaser Benefit Plan”). With respect to each Purchaser Benefit Plan, there are no funded including any material individual benefit obligations for which contributions have not been materially made arrangement or properly accrued and there are no material unfunded benefit obligations policy (other than any arrangement or policy that have not been accounted for by reserves, or otherwise properly footnoted in accordance with GAAP on the Purchaser Financials. Except as set forth on Schedule 3.19(ais mandatory under applicable Legal Requirements), neither the Purchaser nor any Subsidiary or has in the past been a member of a “controlled group” for purposes of Section 414(b), (c), (m) or (o) of the Code other than with the Purchaser or another Subsidiary, nor does the Purchaser or any Subsidiary have any Liability with respect to any Prospective Employee that is a Material Employee and (iii) with regard to Prospective Employees in Germany all collective bargaining agreements, works agreements or other collective agreements, reconciliation of interest agreements and social plans under which the Prospective Employees in Germany have any entitlements to any payments or other monetary benefits (collectively-bargained for plans, whether or not subject to the provisions of ERISA“Seller Benefit Plans”).
(iib) Other than disclosed in Schedule 4.7(b), neither Seller nor any Selling Party sponsors or maintains any defined benefit pension plan covering any Prospective Employees, and no similar commitments or arrangements have been promised by Seller or a Selling Party to any Prospective Employees. Any obligations under such existing employee pension benefit plans (if any) have been duly fulfilled or accrued or adequate book reserves for such liabilities have been set aside.
(c) Except as would not result in a Material Adverse Effect on the Business, Seller or a Selling Party, as applicable, has administered the Seller Benefit Plans in accordance with their terms and all applicable Legal Requirements.
(d) Neither the execution and delivery of this Agreement nor the consummation of the Transactions will result in any material payment (including severance, golden parachute, bonus or otherwise) becoming due to any Prospective Employee, other than any such payments to be borne by the Selling Parties, assuming compliance by Purchaser and its applicable Affiliates with ARTICLE 8.
(e) Neither Seller nor any other Person that would be considered a single employer with Seller under the Code or ERISA has at any time within the past six (6) years contributed to or had any material liability pursuant to a plan subject to Title IV of ERISA, including any “multiemployer plan” as defined in Section 4001(a)(3) of ERISA that in any such case would reasonably be expected to result in any liability to Purchaser.
(f) Each Purchaser Seller Benefit Plan in all material respects is and has been operated in compliance with all applicable Laws in all material respects, including ERISA and the Code. Each Purchaser Benefit Plan which that is intended to be “qualified” within the meaning of qualified under Section 401(a) of the Code (i) has been determined by the IRS is subject to be so qualified (or is based on a prototype plan which has received a favorable determination or opinion letter) during letter from the period from United States Internal Revenue Service with respect to its adoption qualified status, and, to Seller’s knowledge, no fact or event has occurred since the date of this Agreement and (ii) is funded through a trust exempt from taxation under Section 501(a) of the Code. To the Knowledge of the Purchaser, no fact exists which could such determination or opinion letter that would reasonably be expected to adversely affect in a material respect the qualified status of any such Purchaser Seller Benefit Plans Plan or the exempt status of such trustsany related trust.
(iiig) With respect to each Purchaser Benefit Plan, the Purchaser has made available to the Seller accurate and complete copies, if applicable, of: (i) all Purchaser Benefit Plan documents and agreements and related trust agreements or annuity Contracts (including any amendments, modifications or supplements thereto); (ii) all summary plan descriptions and material modifications thereto; (iii) the three (3) most recent Forms 5500, if applicable, and annual report, including all schedules thereto; (iv) the most recent annual and periodic accounting of plan assets; (v) the three (3) most recent nondiscrimination testing reports; (vi) the most recent determination letter received from the IRS, if any; (vii) the most recent actuarial valuation; and (viii) all material written communications between the Purchaser or any Subsidiary or any Purchaser Benefit Plan and any Governmental Authority and relating to a Purchaser Benefit Plan within six (6) years preceding the date of this Agreement.
(iv) With respect to each Purchaser Benefit Plan: (i) such Purchaser Benefit Plan has been administered and enforced in all material respects in accordance with its terms, the Code and ERISA; (ii) neither the Purchaser nor any Subsidiary nor any employee, officer or director thereof that is a fiduciary (under ERISA) with respect to such Purchaser Benefit Plan has breached any of its fiduciary responsibilities, obligations or duties imposed on it by ERISA; (iii) no Action is pending or threatened in writing (other than routine claims for benefits arising in the ordinary course of administration); (iv) nothing has occurred with respect to any Purchaser Benefit Plan that has subjected the Purchaser or any Subsidiary to any material penalty under Section 502 of ERISA or Section 4975 of the Code; and (v) all contributions and premiums due through the Closing Date have been made in all material respects Except as required under ERISA or have been fully accrued in all material respects on the Purchaser Financials.
(v) No Purchaser Section 601 et seq. of ERISA, no Seller Benefit Plan iscovering Prospective Employees located in the United States provides material health, and neither the Purchaser life or any Subsidiary disability insurance following retirement or any other termination of their respective ERISA Affiliates sponsors, maintains, contributes to, is required to contribute to, or otherwise has or could reasonably be expected to have any current or contingent Liability under or with respect to, a “defined benefit plan” (as defined in Section 414(j) of the Code), a “multiemployer plan” (as defined in Section 3(37) of ERISA) or a “multiple employer plan” (as described in Section 413(c) of the Code) or is otherwise subject to Title IV of ERISA or Section 412 of the Code. To the Purchaser’s Knowledge, no Purchaser Benefit Plan will become a multiple employer plan with respect to any Purchaser Entity immediately after the Closing Date. Neither the Purchaser nor any Subsidiary currently maintains or has ever maintained, or is required currently or has ever been required to contribute to or otherwise participate in, a multiple employer welfare arrangement or voluntary employees’ beneficiary association as defined in Section 501(c)(9) of the Code. For purposes of this Agreement, “ERISA Affiliate” means, with respect to any Person, any Person or entity (whether or not incorporated) that is under common control or treated as one employer under Section 4001(b)(1) of ERISA or Section 414(b), (c), (m) or (o) of the Codeemployment.
Appears in 1 contract
Benefit Plans. (a) Schedule 4.7(a) lists: (i) Set forth on Schedule 3.19(a) is a true and complete list of each material Employee Benefit Plan contributed to, sponsored or maintained by Seller or a Selling Party as of the Purchaser date hereof, in each case, for the benefit of any Prospective Employee; and its Subsidiaries (eachii) each material employment agreement with any Material Employee, a “Purchaser Benefit Plan”). With respect to each Purchaser Benefit Plan, there are no funded including any material individual benefit obligations for which contributions have not been materially made arrangement or properly accrued and there are no material unfunded benefit obligations policy (other than any arrangement or policy that have not been accounted for by reserves, or otherwise properly footnoted in accordance with GAAP on the Purchaser Financials. Except as set forth on Schedule 3.19(ais mandatory under applicable Legal Requirements), neither the Purchaser nor any Subsidiary or has in the past been a member of a “controlled group” for purposes of Section 414(b), (c), (m) or (o) of the Code other than with the Purchaser or another Subsidiary, nor does the Purchaser or any Subsidiary have any Liability with respect to any Prospective Employee that is a Material Employee and (iii) with regard to Prospective Employees in Germany all collective bargaining agreements, works agreements or other collective agreements, reconciliation of interest agreements and social plans under which the Prospective Employees in Germany have any entitlements to any payments or other monetary benefits (collectively-bargained for plans, whether or not subject to the provisions of ERISA“Seller Benefit Plans”).
(iib) Other than disclosed in Schedule 4.7(b), neither Seller nor any Selling Party sponsors or maintains any defined benefit pension plan covering any Prospective Employees, and no similar commitments or arrangements have been promised by Seller or a Selling Party to any Prospective Employees. Any obligations under such existing employee pension benefit plans (if any) have been duly fulfilled or accrued or adequate book reserves for such liabilities have been set aside.
(c) Except as would not result in a Material Adverse Effect on the Business, Seller or a Selling Party, as applicable, has administered the Seller Benefit Plans in accordance with their terms and all applicable Legal Requirements.
(d) Neither the execution and delivery of this Agreement nor the consummation of the Transactions will result in any material payment (including severance, golden parachute, bonus or otherwise) becoming due to any Prospective Employee, other than any such payments to be borne by the Selling Parties, assuming compliance by Purchaser and its applicable Affiliates with ARTICLE 8.
(e) Neither Seller nor any other Person that would be considered a single employer with Seller under the Code or ERISA has at any time within the past six (6) years contributed to or had any material liability pursuant to a plan subject to Title IV of ERISA, including any “multiemployer plan” as defined in Section 4001(a)(3) of ERISA that in any such case would reasonably be expected to result in any liability to Purchaser. 17
(f) Each Purchaser Seller Benefit Plan in all material respects is and has been operated in compliance with all applicable Laws in all material respects, including ERISA and the Code. Each Purchaser Benefit Plan which that is intended to be “qualified” within the meaning of qualified under Section 401(a) of the Code (i) has been determined by the IRS is subject to be so qualified (or is based on a prototype plan which has received a favorable determination or opinion letter) during letter from the period from United States Internal Revenue Service with respect to its adoption qualified status, and, to Seller’s knowledge, no fact or event has occurred since the date of this Agreement and (ii) is funded through a trust exempt from taxation under Section 501(a) of the Code. To the Knowledge of the Purchaser, no fact exists which could such determination or opinion letter that would reasonably be expected to adversely affect in a material respect the qualified status of any such Purchaser Seller Benefit Plans Plan or the exempt status of such trustsany related trust.
(iiig) With respect to each Purchaser Benefit Plan, the Purchaser has made available to the Seller accurate and complete copies, if applicable, of: (i) all Purchaser Benefit Plan documents and agreements and related trust agreements or annuity Contracts (including any amendments, modifications or supplements thereto); (ii) all summary plan descriptions and material modifications thereto; (iii) the three (3) most recent Forms 5500, if applicable, and annual report, including all schedules thereto; (iv) the most recent annual and periodic accounting of plan assets; (v) the three (3) most recent nondiscrimination testing reports; (vi) the most recent determination letter received from the IRS, if any; (vii) the most recent actuarial valuation; and (viii) all material written communications between the Purchaser or any Subsidiary or any Purchaser Benefit Plan and any Governmental Authority and relating to a Purchaser Benefit Plan within six (6) years preceding the date of this Agreement.
(iv) With respect to each Purchaser Benefit Plan: (i) such Purchaser Benefit Plan has been administered and enforced in all material respects in accordance with its terms, the Code and ERISA; (ii) neither the Purchaser nor any Subsidiary nor any employee, officer or director thereof that is a fiduciary (under ERISA) with respect to such Purchaser Benefit Plan has breached any of its fiduciary responsibilities, obligations or duties imposed on it by ERISA; (iii) no Action is pending or threatened in writing (other than routine claims for benefits arising in the ordinary course of administration); (iv) nothing has occurred with respect to any Purchaser Benefit Plan that has subjected the Purchaser or any Subsidiary to any material penalty under Section 502 of ERISA or Section 4975 of the Code; and (v) all contributions and premiums due through the Closing Date have been made in all material respects Except as required under ERISA or have been fully accrued in all material respects on the Purchaser Financials.
(v) No Purchaser Section 601 et seq. of ERISA, no Seller Benefit Plan iscovering Prospective Employees located in the United States provides material health, and neither the Purchaser life or any Subsidiary disability insurance following retirement or any other termination of their respective ERISA Affiliates sponsors, maintains, contributes to, is required to contribute to, or otherwise has or could reasonably be expected to have any current or contingent Liability under or with respect to, a “defined benefit plan” (as defined in Section 414(j) of the Code), a “multiemployer plan” (as defined in Section 3(37) of ERISA) or a “multiple employer plan” (as described in Section 413(c) of the Code) or is otherwise subject to Title IV of ERISA or Section 412 of the Code. To the Purchaser’s Knowledge, no Purchaser Benefit Plan will become a multiple employer plan with respect to any Purchaser Entity immediately after the Closing Date. Neither the Purchaser nor any Subsidiary currently maintains or has ever maintained, or is required currently or has ever been required to contribute to or otherwise participate in, a multiple employer welfare arrangement or voluntary employees’ beneficiary association as defined in Section 501(c)(9) of the Code. For purposes of this Agreement, “ERISA Affiliate” means, with respect to any Person, any Person or entity (whether or not incorporated) that is under common control or treated as one employer under Section 4001(b)(1) of ERISA or Section 414(b), (c), (m) or (o) of the Codeemployment.
Appears in 1 contract
Benefit Plans. (ia) Set forth on Schedule 3.19(a) in Section 4.19 of the Company Disclosure Schedules is a true and complete list of each material Benefit Plan of the Purchaser and its Subsidiaries a Target Company (each, a “Purchaser Company Benefit Plan”). With respect to each Purchaser Company Benefit Plan, there are no funded benefit obligations for which contributions have not been materially made or properly accrued and there are no material unfunded benefit obligations that have not been accounted for by reserves, or otherwise properly footnoted in accordance with GAAP or Japanese generally accepted accounting principles on the Purchaser Company Financials. Except as set forth on Schedule 3.19(a), neither the Purchaser nor any Subsidiary No Target Company is or has in the past been a member of a “controlled group” for purposes of Section 414(b), (c), (m) or (o) of the Code other than with the Purchaser or another SubsidiaryCode, nor does the Purchaser or any Subsidiary Target Company have any Liability with respect to any collectively-bargained for plans, whether or not subject to the provisions of ERISA.
(iib) Each Purchaser Company Benefit Plan in all material respects is and has been operated at all times in compliance with all applicable Laws in all material respects, including ERISA and the Code. Each Purchaser Company Benefit Plan which is intended to be “qualified” within the meaning of Section 401(a) of the Code (i) has been determined by the IRS to be so qualified (or is based on a prototype plan which has received a favorable opinion letter) during the period from its adoption to the date of this Agreement Date and (ii) is funded through a its related trust has been determined to be exempt from taxation under Section 501(a) of the CodeCode or the Target Companies have requested an initial favorable IRS determination of qualification and/or exemption within the period permitted by applicable Law. To the Knowledge of the PurchaserCompany’s Knowledge, no fact exists which could adversely affect the qualified status of such Purchaser Company Benefit Plans or the exempt status of such trusts.
(iiic) With respect to each Purchaser Company Benefit PlanPlan which covers any current or former officer, director, consultant or employee (or beneficiary thereof) of a Target Company, the Company has provided to Purchaser has made available to the Seller accurate and complete copies, if applicable, of: (i) all Purchaser Company Benefit Plan documents and agreements and related trust agreements or annuity Contracts (including any amendments, modifications or supplements thereto); (ii) all summary plan descriptions and summary of material modifications thereto; (iii) the three (3) most recent Forms 5500, if applicable, and annual report, including all schedules thereto; (iv) the most recent annual and periodic accounting of plan assets; (v) the three (3) most recent nondiscrimination testing reports; (vi) the most recent determination letter received from the IRS, if any; (vii) the most recent actuarial valuation; and (viii) all material written communications between the Purchaser or any Subsidiary or any Purchaser Benefit Plan and with any Governmental Authority and relating to a Purchaser Benefit Plan within six the last three (63) years preceding the date of this Agreementyears.
(ivd) With respect to each Purchaser Company Benefit Plan: (i) such Purchaser Company Benefit Plan has been administered and enforced in all material respects in accordance with its terms, the Code and ERISA; (ii) neither the Purchaser nor any Subsidiary nor any employee, officer or director thereof that is a no breach of fiduciary (under ERISA) with respect to such Purchaser Benefit Plan duty has breached any of its fiduciary responsibilities, obligations or duties imposed on it by ERISAoccurred; (iii) no Action is pending pending, or to the Company’s Knowledge, threatened in writing (other than routine claims for benefits arising in the ordinary course of administration); (iv) nothing has occurred with respect to any Purchaser Benefit Plan that has subjected the Purchaser or any Subsidiary to any material penalty under no prohibited transaction, as defined in Section 502 406 of ERISA or Section 4975 of the Code, has occurred, excluding transactions effected pursuant to a statutory or administration exemption; and (v) all contributions and premiums due through the Closing Date have been made in all material respects as required under ERISA or have been fully accrued in all material respects on the Purchaser Company Financials.
(ve) No Purchaser Company Benefit Plan is, and neither the Purchaser or any Subsidiary or any of their respective ERISA Affiliates sponsors, maintains, contributes to, is required to contribute to, or otherwise has or could reasonably be expected to have any current or contingent Liability under or with respect to, a “defined benefit plan” (as defined in Section 414(j) of the Code), a “multiemployer plan” (as defined in Section 3(37) of ERISA) or a “multiple employer plan” (as described in Section 413(c) of the Code) or is otherwise subject to Title IV of ERISA or Section 412 of the Code, and no Target Company has incurred any Liability or otherwise could have any Liability, contingent or otherwise, under Title IV of ERISA and no condition presently exists that is expected to cause such Liability to be incurred. To the Purchaser’s Knowledge, no Purchaser No Company Benefit Plan will become a multiple employer plan with respect to any Purchaser Entity Target Company immediately after the Closing Date. Neither the Purchaser nor any Subsidiary No Target Company currently maintains or has ever maintained, or is required currently or has ever been required to contribute to or otherwise participate in, a multiple employer welfare arrangement or voluntary employees’ beneficiary association as defined in Section 501(c)(9) of the Code.
(f) No arrangement exists pursuant to which a Target Company will be required to “gross up” or otherwise compensate any person because of the imposition of any excise tax on a payment to such person.
(g) With respect to each Company Benefit Plan which is a “welfare plan” (as described in Section 3(1) of ERISA): (i) no such plan provides medical or death benefits with respect to current or former employees of a Target Company beyond their termination of employment (other than coverage mandated by Law, which is paid solely by such employees); and (ii) there are no reserves, assets, surplus or prepaid premiums under any such plan. For The Target Companies have complied in all material respects with the provisions of Section 601 et seq. of ERISA and Section 4980B of the Code.
(h) Each Company Benefit Plan satisfies the requirements of the Patient Protection and Affordable Care Act of 2010 (the “PPACA”), such that there is no reasonable expectation that any Tax or penalty could be imposed pursuant to the PPACA that relates to such group health plan. To the Knowledge of the Company, no condition exists that could cause any Target Company to have any Liability for any assessable payment under Section 4980H of the Code. To the Knowledge of the Company, no event has occurred, or condition exists, that could subject any Target Company to any Liability on account of a violation of the health care requirements of Part 6 or 7 of Title I of ERISA or Section 4980B or 4980D of the Code. Each Target Company has maintained records that are sufficient to satisfy the reporting requirements under Sections 6055 and 6056 of the Code, to the extent required, for all periods of time up to and through the Closing Date. No Target Company has modified the employment or service terms of any employee or service provider for the purpose of excluding such employee or service provider from full-time status for purposes of PPACA.
(i) Except as set forth in Section 4.19(i) of the Company Disclosure Schedules, the consummation of the transactions contemplated by this AgreementAgreement and the Ancillary Documents will not: (i) entitle any individual to severance pay, unemployment compensation or other benefits or compensation (except as set forth in Section 4.19 of the Company Disclosure Schedules); (ii) accelerate the time of payment or vesting, or increase the amount of any compensation due, or in respect of, any individual; or (iii) result in or satisfy a condition to the payment of compensation that would, in combination with any other payment, result in an “ERISA Affiliateexcess parachute payment” meanswithin the meaning of Section 280G of the Code. No Target Company has incurred any Liability for any Tax imposed under Chapter 43 of the Code or civil liability under Section 502(i) or (l) of ERISA.
(j) All Company Benefit Plans can be terminated at any time prior to the Closing Date without resulting in any Liability to the Surviving Corporation or Purchaser or their respective Affiliates for any additional contributions, penalties, premiums, fees, fines, excise taxes or any other charges or liabilities.
(k) Each Company Benefit Plan that is subject to Section 409A of the Code (each, a “Section 409A Plan”) as of the Closing Date is indicated as such in Section 4.19(k) of the Company Disclosure Schedules. No options or other equity-based awards have been issued or granted by the Company that are, or are subject to, a Section 409A Plan. Each Section 409A Plan has been administered in compliance, and is in documentary compliance, in all material respects, with the applicable provisions of Section 409A of the Code, the regulations thereunder and other official guidance issued thereunder. No Target Company has any obligation to any employee or other service provider with respect to any Person, Section 409A Plan that may be subject to any Person or entity (whether or not incorporated) that is under common control or treated as one employer Tax under Section 4001(b)(1) 409A of ERISA the Code. No payment to be made under any Section 409A Plan is, or to the Knowledge of the Company will be, subject to the penalties of Section 414(b), (c), (m) or (o409A(a)(1) of the Code. There is no Contract or plan to which any Target Company is a party or by which it is bound to compensate any employee, consultant or director for penalty taxes paid pursuant to Section 409A of the Code.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Pono Capital Two, Inc.)
Benefit Plans. (ia) Set forth on Schedule 3.19(a4.19(a) is a true and complete list of each material Benefit Plan of the Purchaser and its Subsidiaries a Target Company (each, a “Purchaser Company Benefit Plan”). With respect to each Purchaser Company Benefit Plan, there are no funded benefit obligations for which contributions have not been materially made or properly accrued according to GAAP and there are no material unfunded benefit obligations that have not been accounted for by reserves, or otherwise properly footnoted in accordance with GAAP on the Purchaser Company Financials. Except as set forth on Schedule 3.19(a4.19(a), neither the Purchaser nor any Subsidiary no Target Company is or has in the past been a member of a “controlled group” for purposes of Section 414(b), (c), (m) or (o) of the Code other than with the Purchaser or another SubsidiaryCode, nor does the Purchaser or any Subsidiary Target Company have any Liability with respect to any collectively-bargained for plans, whether or not subject to the provisions of ERISA. No statement, either written or oral, has been made by any Target Company to any Person with regard to any Company Benefit Plan that was not in accordance with the Company Benefit Plan in any material respect.
(iib) Each Purchaser Company Benefit Plan in all material respects is and has been operated at all times in compliance with all applicable Laws in all material respects, including ERISA and the Code. Each Purchaser Company Benefit Plan which is intended to be “qualified” within the meaning of Section 401(a) of the Code (i) has been determined by the IRS to be so qualified (or is based on a prototype plan which has received a favorable opinion letter) during the period from its adoption to the date of this Agreement and (ii) is funded through a its related trust has been determined to be exempt from taxation under Section 501(a) of the CodeCode or the Target Companies have requested an initial favorable IRS determination of qualification and/or exemption within the period permitted by applicable Law. To the Knowledge of the Purchaser, no No fact exists which could adversely affect the qualified status of such Purchaser Company Benefit Plans or the exempt status of such trusts.
(iiic) With respect to each Purchaser Company Benefit PlanPlan which covers any current or former officer, director, consultant, independent contractor or employee (or beneficiary thereof) of a Target Company, the Company has provided to Purchaser has made available to the Seller accurate and complete copies, if applicable, of: (i) all Purchaser Company Benefit Plan documents texts and agreements and related trust agreements or annuity Contracts (including any amendments, modifications or supplements thereto); (ii) all summary plan descriptions and material modifications thereto; (iii) the three (3) most recent Forms 5500, if applicable, and annual report, including all schedules thereto; (iv) the most recent annual and periodic accounting of plan assets; (v) the three (3) most recent nondiscrimination testing reports; (vi) the most recent determination letter received from the IRS, if any; (vii) the most recent actuarial valuation; and (viii) all material written communications between the Purchaser or any Subsidiary or any Purchaser Benefit Plan and with any Governmental Authority and relating to a Purchaser Benefit Plan within six (6) years preceding the date of this AgreementAuthority.
(ivd) With respect to each Purchaser Company Benefit Plan: (i) such Purchaser Company Benefit Plan has been administered administered, funded , maintained and enforced in all material respects in accordance with its terms, the Code and ERISA; (ii) neither the Purchaser nor any Subsidiary nor any employee, officer or director thereof that is a no breach of fiduciary (under ERISA) with respect to such Purchaser Benefit Plan duty has breached any of its fiduciary responsibilities, obligations or duties imposed on it by ERISAoccurred; (iii) no Action is pending pending, or to the Company’s Knowledge, threatened in writing (other than routine claims for benefits arising in the ordinary course of administration); (iv) nothing has occurred with respect to any Purchaser Benefit Plan that has subjected the Purchaser or any Subsidiary to any material penalty under no prohibited transaction, as defined in Section 502 406 of ERISA or Section 4975 of the Code, has occurred, excluding transactions effected pursuant to a statutory or administration exemption; and (v) all contributions and premiums due through the Closing Date have been made in all material respects as required under ERISA or have been fully accrued in all material respects on the Purchaser Company Financials.
(ve) No Purchaser Company Benefit Plan is, and neither the Purchaser no Target Company or any Subsidiary entity, trade or any business that is a member of their respective ERISA Affiliates a group described in Section 414(b), (c), (m) or (o) of the Code sponsors, maintains, contributes to, is required has an obligation to contribute to, or otherwise has or could reasonably be expected to have any current or contingent Liability under or with respect to, a “defined benefit plan” (as defined in Section 414(j) of the Code), a “multiemployer plan” (as defined in Section 3(37) of ERISA) or a “multiple employer plan” (as described in Section 413(c) of the Code) or is otherwise subject to Title IV of ERISA or Section 412 of the Code, and no Target Company has incurred any Liability or otherwise could have any Liability, contingent or otherwise, under Title IV of ERISA and no condition presently exists that is expected to cause such Liability to be incurred. To the Purchaser’s Knowledge, no Purchaser Benefit Plan will become a multiple employer plan with respect to any Purchaser Entity immediately after the Closing Date. Neither the Purchaser nor any Subsidiary No Target Company currently maintains or has ever maintained, or is required currently or has ever been required to contribute to or otherwise participate in, a multiple employer welfare arrangement or voluntary employees’ beneficiary association as defined in Section 501(c)(9) of the Code. For purposes of this Agreement, “ERISA Affiliate” means, .
(f) There is no arrangement under any Company Benefit Plan with respect to any Personemployee that would result in the payment of any amount that by operation of Sections 280G or 162(m) of the Code would not be deductible by the Target Companies and no arrangement exists pursuant to which a Target Company will be required to “gross up” or otherwise compensate any person because of the imposition of any excise tax on a payment to such person.
(g) With respect to each Company Benefit Plan which is a “welfare plan” (as described in Section 3(1) of ERISA): (i) no such plan provides medical or death benefits with respect to current or former employees, officers, directors, consultants, or independent contractors of a Target Company beyond their termination of employment (other than coverage mandated by Law, which is paid solely by such employees); and (ii) there are no reserves, assets, surplus or prepaid premiums under any such plan. Each Target Company has complied with the provisions of Section 601 et seq. of ERISA, Section 4980B of the Code and with the Patient Protection and Affordable Care Act of 2010, and, to the Knowledge of the Company, no event has occurred, and no condition or circumstance exists, that would subject any Target Company or any Company Benefit Plan to any material Liability for penalties or excise Taxes under Sections 4980D or 4980H of the Code.
(h) The consummation of the transactions contemplated by this Agreement and the Ancillary Documents will not: (i) entitle any individual to severance pay, unemployment compensation or other benefits or compensation; (ii) accelerate the time of payment or vesting, or increase the amount of any compensation due, or in respect of, any Person individual; or entity (whether iii) result in or not incorporated) satisfy a condition to the payment of compensation that is would, in combination with any other payment, result in an “excess parachute payment” within the meaning of Section 280G of the Code. No Target Company has incurred any Liability for any Tax imposed under common control Chapter 43 of the Code or treated as one employer civil liability under Section 4001(b)(1) of ERISA or Section 414(b), (c), (m502(i) or (ol) of ERISA.
(i) Except to the extent required by Section 4980B of the Code or similar state Law, no Target Company provides health or welfare benefits to any former or retired employee or is obligated to provide such benefits to any active employee following such employee’s retirement or other termination of employment or service.
(j) All Company Benefit Plans can be terminated at any time as of or after the Closing Date without resulting in any Liability to the Surviving Corporation or Purchaser or their respective Affiliates for any additional contributions, penalties, premiums, fees, fines, excise taxes or any other charges or liabilities.
(k) Each Company Benefit Plan that is subject to Section 409A of the Code (each, a “Section 409A Plan”) as of the Closing Date is indicated as such on Schedule 4.19(k). No Company Options or other equity-based awards have been issued or granted by the Company that are, or are subject to, a Section 409A Plan. Each Section 409A Plan has been administered in compliance, and is in documentary compliance, with the applicable provisions of Section 409A of the Code, the regulations thereunder and other official guidance issued thereunder. No Target Company has any obligation to any employee or other service provider with respect to any Section 409A Plan that may be subject to any Tax under Section 409A of the Code. No payment to be made under any Section 409A Plan is, or to the Knowledge of the Company will be, subject to the penalties of Section 409A(a)(1) of the Code. There is no Contract or plan to which any Target Company is a party or by which it is bound to compensate any employee, consultant or director for penalty taxes paid pursuant to Section 409A of the Code.
Appears in 1 contract
Samples: Merger Agreement (Artemis Strategic Investment Corp)
Benefit Plans. (ia) Set forth on Schedule 3.19(a4.19(a) is a true and complete list of each material Benefit Plan of the Purchaser and its Subsidiaries a Target Company (each, a “Purchaser Company Benefit Plan”). With respect to each Purchaser Target Company Benefit Plan, there are no funded benefit obligations for which contributions have not been materially made or properly accrued and there are no material unfunded benefit obligations that have not been accounted for by reserves, or otherwise properly footnoted in accordance with GAAP on the Purchaser Company Financials. Except as set forth on Schedule 3.19(a), neither the Purchaser nor any Subsidiary No Target Company is or has in the past been a member of a “controlled group” for purposes of Section 414(b), (c), (m) or (o) of the Code other than with the Purchaser or another SubsidiaryCode, nor does the Purchaser or any Subsidiary Target Company have any Liability with respect to any collectively-bargained for plans, whether or not subject to the provisions of ERISA. No statement, either written or oral, has been made by any Target Company to any Person with regard to any Company Benefit Plan that was not in accordance with the Company Benefit Plan in any material respect.
(iib) Each Purchaser Company Benefit Plan in all material respects is and has been operated at all times in compliance with all applicable Laws in all material respects, including ERISA and the Code. Each Purchaser Company Benefit Plan which is intended to be “qualified” within the meaning of Section 401(a) of the Code (i) has been determined by the IRS to be so qualified (or is based on a prototype plan which has received a favorable TABLE OF CONTENTS opinion letter) during the period from its adoption to the date of this Agreement and (ii) is funded through a its related trust has been determined to be exempt from taxation under Section 501(a) of the CodeCode or the Target Companies have requested an initial favorable IRS determination of qualification and/or exemption within the period permitted by applicable Law. To the Knowledge of the Purchaser, no No fact exists which could adversely affect the qualified status of such Purchaser Company Benefit Plans or the exempt status of such trusts.
(iiic) With respect to each Purchaser Target Company Benefit PlanPlan which covers any current or former officer, director, consultant or employee (or beneficiary thereof) of a Target Company, the Company has provided to Purchaser has made available to the Seller accurate and complete copies, if applicable, of: (i) all Purchaser Company Benefit Plan documents texts and agreements and related trust agreements or annuity Contracts (including any amendments, modifications or supplements thereto); (ii) all summary plan descriptions and material modifications thereto; (iii) the three (3) most recent Forms 5500, if applicable, and annual report, including all schedules thereto; (iv) the most recent annual and periodic accounting of plan assets; (v) the three (3) most recent nondiscrimination testing reports; (vi) the most recent determination letter received from the IRS, if any; (vii) the most recent actuarial valuation; and (viii) all material written communications between the Purchaser or any Subsidiary or any Purchaser Benefit Plan and with any Governmental Authority and relating to a Purchaser Benefit Plan within six (6) years preceding the date of this AgreementAuthority.
(ivd) With respect to each Purchaser Target Company Benefit Plan: (i) such Purchaser Company Benefit Plan has been administered and enforced in all material respects in accordance with its terms, the Code and ERISA; (ii) neither the Purchaser nor any Subsidiary nor any employee, officer or director thereof that is a no breach of fiduciary (under ERISA) with respect to such Purchaser Benefit Plan duty has breached any of its fiduciary responsibilities, obligations or duties imposed on it by ERISAoccurred; (iii) no Action is pending pending, or to the Company’s Knowledge, threatened in writing (other than routine claims for benefits arising in the ordinary course of administration); (iv) nothing has occurred with respect to any Purchaser Benefit Plan that has subjected the Purchaser or any Subsidiary to any material penalty under no prohibited transaction, as defined in Section 502 406 of ERISA or Section 4975 of the Code, has occurred, excluding transactions effected pursuant to a statutory or administration exemption; and (v) all contributions and premiums due through the Closing Date have been made in all material respects as required under ERISA or have been fully accrued in all material respects on the Purchaser Company Financials.
(ve) No Purchaser Company Benefit Plan is, and neither the Purchaser or any Subsidiary or any of their respective ERISA Affiliates sponsors, maintains, contributes to, is required to contribute to, or otherwise has or could reasonably be expected to have any current or contingent Liability under or with respect to, a “defined benefit plan” (as (as defined in Section 414(j) of the Code), a “multiemployer plan” (as (as defined in Section 3(37) of ERISA) or a “multiple employer plan” (as (as described in Section 413(c) of the Code) or is otherwise subject to Title IV of ERISA or Section 412 of the Code, and no Target Company has incurred any Liability or otherwise could have any Liability, contingent or otherwise, under Title IV of ERISA and no condition presently exists that is expected to cause such Liability to be incurred. To the Purchaser’s Knowledge, no Purchaser No Company Benefit Plan will become a multiple employer plan with respect to any Purchaser Entity Target Company immediately after the Closing Date. Neither the Purchaser nor any Subsidiary No Target Company currently maintains or has ever maintained, or is required currently or has ever been required to contribute to or otherwise participate in, a multiple employer welfare arrangement or voluntary employees’ beneficiary association as defined in Section 501(c)(9) of the Code. For purposes of this Agreement, “ERISA Affiliate” means, .
(f) There is no arrangement under any Company Benefit Plan with respect to any Person, employee that would result in the payment of any Person amount that by operation of Sections 280G or entity (whether or not incorporated) that is under common control or treated as one employer under Section 4001(b)(1162(m) of the Code would not be deductible by the Target Companies and no arrangement exists pursuant to which a Target Company will be required to “gross up” or otherwise compensate any person because of the imposition of any excise tax on a payment to such person.
(g) With respect to each Target Company Benefit Plan which is a “welfare plan” (as described in Section 3(1) of ERISA): (i) no such plan provides medical or death benefits with respect to current or former employees of a Target Company beyond their termination of employment (other than coverage mandated by Law, which is paid solely by such employees); and (ii) there are no reserves, assets, surplus or prepaid premiums under any such plan. Each Target Company has complied with the provisions of Section 601 et seq. of ERISA or and Section 414(b), (c), (m) or (o) 4980B of the Code.
(h) The consummation of the transactions contemplated by this Agreement and the Ancillary Documents will not: (i) entitle any individual to severance pay, unemployment compensation or other benefits or compensation; (ii) accelerate the time of payment or vesting, or increase the amount of any compensation due, or in respect of, any individual; or (iii) result in or satisfy a condition to the payment of compensation that would, in combination with any other payment, result in an “excess parachute payment” within the meaning of Section 280G of the Code. No Target Company has incurred any Liability for any Tax imposed under Chapter 43 of the Code or civil liability under Section 502(i) or (l) of ERISA.
Appears in 1 contract
Samples: Merger Agreement (Integrated Wellness Acquisition Corp)
Benefit Plans. (ia) Set forth on Schedule 3.19(a5.13(a) is contains a true and complete list of each material Benefit Plan that currently provides employee benefits for the remuneration of the Purchaser and its Subsidiaries Business Employees.
(each, a “Purchaser Benefit Plan”). With respect to each Purchaser Benefit Plan, there are no funded benefit obligations for which contributions have not been materially made or properly accrued and there are no material unfunded benefit obligations that have not been accounted for by reserves, or otherwise properly footnoted in accordance with GAAP on the Purchaser Financials. b) Except as set forth on in Schedule 3.19(a), neither the Purchaser nor any Subsidiary or has in the past been a member of a “controlled group” for purposes of Section 414(b), (c), (m) or (o) of the Code other than with the Purchaser or another Subsidiary, nor does the Purchaser or any Subsidiary have any Liability with respect to any collectively-bargained for plans, whether or not subject to the provisions of ERISA.5.13(a):
(ii) Each Purchaser Benefit Plan in all material respects is and has been operated in compliance with all applicable Laws in all material respects, including ERISA and the Code. Each Purchaser Benefit Plan which is intended to be “qualified” within the meaning of Section 401(a) of the Code (i) has been determined by the IRS to be so qualified (or is based on a prototype plan which has received a favorable opinion letter) during the period from its adoption to the date of this Agreement and (ii) is funded through a trust exempt from taxation under Section 501(a) of the Code. To the Knowledge of the Purchaser, no fact exists which could adversely affect the qualified status of such Purchaser Benefit Plans or the exempt status of such trusts.
(iii) With respect to each Purchaser Benefit PlanPlan identified on Schedule 5.13(a), either Caterpillar or the Purchaser Company has heretofore delivered or made available to the Seller accurate Buyer true and complete copiescopies of each such Benefit Plan, if applicable, of: (i) all Purchaser Benefit Plan documents and agreements and related trust agreements or annuity Contracts (including any amendments, modifications or supplements thereto); (ii) all summary plan descriptions descriptions, booklets and material modifications thereto; (iii) the three (3) most recent Forms 5500any other summaries thereof, if applicable, and annual report, including all schedules thereto; (iv) the most recent annual and periodic accounting of plan assets; (v) the three (3) most recent nondiscrimination testing reports; (vi) the most recent determination letter received from the IRSInternal Revenue Service with respect to each such Benefit Plan intended to qualify under Section 401 of the Code, if any; the IRS Form 5500 (viito the extent applicable) for the most recent actuarial valuationyear in respect of each such Benefit Plan; and (viii) all material written communications between the Purchaser or any Subsidiary or any Purchaser Benefit Plan and any Governmental Authority and relating to a Purchaser Benefit Plan within six (6) years preceding the date of this Agreement.
(iv) With respect to each Purchaser Benefit Plan: (i) such Purchaser Benefit Plan has been administered and enforced in all material respects in accordance with its terms, the Code and ERISA; (ii) neither the Purchaser nor any Subsidiary nor any employee, officer or director thereof that is a fiduciary (under ERISA) with respect to such Purchaser Benefit Plan has breached any of its fiduciary responsibilities, obligations or duties imposed on it by ERISA; (iii) no Action is pending or threatened in writing (other than routine claims for benefits arising in the ordinary course of administration); (iv) nothing has occurred documentation with respect to any Purchaser such Benefit Plan that has subjected as is reasonably requested by the Purchaser or any Subsidiary to any material penalty under Section 502 of ERISA or Section 4975 of the Code; and (v) all contributions and premiums due through the Closing Date have been made in all material respects as required under ERISA or have been fully accrued in all material respects on the Purchaser FinancialsBuyer.
(vii) No Purchaser Benefit Plan isAt no time during the last six years has Caterpillar or the Company (1) sponsored, and neither the Purchaser maintained contributed to or any Subsidiary or any of their respective ERISA Affiliates sponsors, maintains, contributes to, is been required to contribute to, to any Employee Benefit Plan covering Business Employees that is or otherwise has or could reasonably be expected to have any current or contingent Liability under or with respect to, a “defined benefit plan” (as defined in Section 414(j) of the Code), a “multiemployer plan” (as defined in Section 3(37) of ERISA) or a “multiple employer plan” (as described in Section 413(c) of the Code) or is otherwise was subject to Title IV of ERISA or Section 412 of the Code, (2) contributed to or been required to contribute on behalf of Business Employees to any Multiemployer Plan, or (3) incurred any withdrawal liability to any Multiemployer Plan with respect to Business Employees that remains unsatisfied. To the Purchaser’s Knowledge, no Purchaser Benefit Plan will become a multiple employer plan The PBGC has not assessed any material liability with respect to any Purchaser Entity immediately after Employee Benefit Plan against Caterpillar or the Closing DateCompany that has not been paid by Caterpillar or the Company. Neither Caterpillar nor the Purchaser nor any Subsidiary currently maintains or Company has ever maintainedincurred, or is required currently or has ever been required and no facts exist that reasonably could be expected to contribute to or otherwise participate result in, a multiple employer welfare arrangement material liability as a result of a termination, withdrawal or voluntary employees’ beneficiary association as defined funding waiver with respect to a Benefit Plan that covers or covered Business Employees.
(iii) To the Knowledge of Caterpillar or the Company, no transaction contemplated in Section 501(c)(9) this Agreement will or is likely to result in the imposition of the Code. For purposes withdrawal liability pursuant to Subtitle E of this Agreement, “Title IV of ERISA Affiliate” means, with respect to any PersonEmployee Benefit Plan in which Business Employees participate or have participated.
(iv) Except as would not reasonably be expected to result in material liability to the Company, Caterpillar or the Company has satisfied in full any Person obligation to provide COBRA coverage or entity COBRA notice in respect of any employee, former employee, consultant, independent contractor, contingent worker or leased employee, or the dependents of any of them, engaged in any respect in the operations of the Business with respect to qualifying events on or prior to the date hereof.
(whether or not incorporatedc) that is under common control or treated Except as one employer under Section 4001(b)(1) of ERISA or Section 414(bset forth on Schedule 5.13(a), the execution, delivery and performance of, and consummation of the transactions contemplated by this Agreement will not (c)1) entitle any Business Employee to severance pay, (m) unemployment compensation or any other payment, or (o2) accelerate the time of payment of or vesting of benefits under an Benefit Plan, or increase the Codeamount of compensation due any such individual.
Appears in 1 contract
Benefit Plans. (i) Set forth on Section 5.15 of the Disclosure Schedule 3.19(a) is contains a true and complete list of each material all Benefit Plan Plans covering Company Employees, and copies of all such written Benefit Plans have been made available to the Purchaser and its Subsidiaries (each, a “Purchaser Benefit Plan”)Buyer. With respect to each Purchaser all Benefit Plan, there are no funded benefit obligations for which contributions have not been materially made or properly accrued and there are no material unfunded benefit obligations that have not been accounted for by reserves, or otherwise properly footnoted Plans listed in accordance with GAAP on the Purchaser Financials. Except as set forth on Schedule 3.19(a), neither the Purchaser nor any Subsidiary or has in the past been a member of a “controlled group” for purposes of Section 414(b), (c), (m) or (o) 5.15 of the Code other than with Disclosure Schedule and except as disclosed in Section 5.15 of the Purchaser or another Subsidiary, nor does the Purchaser or any Subsidiary have any Liability with respect to any collectively-bargained for plans, whether or not subject to the provisions of ERISA.Disclosure Schedule:
(iia) Each Purchaser such Benefit Plan and the administration thereof complies, and has at all times complied, in all material respects is with its terms and has been operated in compliance with all applicable Laws in all material respectsRequirements of Laws, including requirements of ERISA and the Code. Each Purchaser , and each Benefit Plan which is intended to be “qualified” within the meaning of Section qualify under section 401(a) of the Code (i) has been determined by the IRS to be so qualified (or is based on a prototype plan which has received a favorable opinion letter) during the period from at all times since its adoption to the date been so qualified, and each trust which forms a part of this Agreement and (ii) is funded through a trust any such plan has at all times since its adoption been tax-exempt from taxation under Section section 501(a) of the Code. To ;
(b) No such Benefit Plan is a “multiemployer plan” as such term is defined in section 4001(a)(3) of ERISA;
(c) No liability has been incurred or is expected to be incurred under Title IV of ERISA by any party with respect to (i) any Benefit Plan or (ii) any other plan currently or heretofore maintained or contributed to by the Knowledge Company, any predecessor to the Company, or any ERISA Affiliate;
(d) The Company has not incurred any material liability for any Tax imposed under sections 4971 through 4980B of the Purchaser, no fact exists which could adversely affect the qualified status Code or civil liability under section 502(i) or (1) of such Purchaser Benefit Plans or the exempt status of such trusts.ERISA;
(iiie) With respect to each Purchaser No such Benefit Plan provides or has ever provided health or death benefit coverage beyond the termination of an employee’s employment, except as required by Part 6 of Title I of ERISA or section 4980B of the Code or similar state laws;
(f) No benefit under any Benefit Plan, the Purchaser has made available to the Seller accurate and complete copiesincluding, if applicablewithout limitation, of: (i) all Purchaser Benefit Plan documents and agreements and related trust agreements any severance or annuity Contracts (including parachute payment plan or agreement, will be established or become accelerated, vested or payable by reason of any amendments, modifications or supplements thereto); (ii) all summary plan descriptions and material modifications thereto; (iii) the three (3) most recent Forms 5500, if applicable, and annual report, including all schedules thereto; (iv) the most recent annual and periodic accounting of plan assets; (v) the three (3) most recent nondiscrimination testing reports; (vi) the most recent determination letter received from the IRS, if any; (vii) the most recent actuarial valuation; and (viii) all material written communications between the Purchaser or any Subsidiary or any Purchaser Benefit Plan and any Governmental Authority and relating to a Purchaser Benefit Plan within six (6) years preceding the date of transaction contemplated under this Agreement.;
(ivg) With respect to each Purchaser Benefit Plan: (i) such Purchaser Benefit Plan The Company has been administered and enforced complied in all material respects in accordance with its termsthe health care continuation requirements of Section 601, the Code and et. seq., of ERISA; and
(iih) neither the Purchaser nor any Subsidiary nor any employee, officer or director thereof that is a fiduciary No Legal Proceeding (under ERISA) with respect to such Purchaser Benefit Plan has breached any of its fiduciary responsibilities, obligations or duties imposed on it by ERISA; (iii) no Action is pending or threatened in writing (other than routine excluding claims for benefits arising incurred in the ordinary course of administration); (ivplan activities) nothing has occurred been brought against or with respect to any Purchaser Benefit Plan that has subjected the Purchaser or any Subsidiary to any material penalty under Section 502 of ERISA or Section 4975 of the Code; and (v) all contributions and premiums due through the Closing Date have been made in all material respects as required under ERISA or have been fully accrued in all material respects on the Purchaser FinancialsPlan.
(v) No Purchaser Benefit Plan is, and neither the Purchaser or any Subsidiary or any of their respective ERISA Affiliates sponsors, maintains, contributes to, is required to contribute to, or otherwise has or could reasonably be expected to have any current or contingent Liability under or with respect to, a “defined benefit plan” (as defined in Section 414(j) of the Code), a “multiemployer plan” (as defined in Section 3(37) of ERISA) or a “multiple employer plan” (as described in Section 413(c) of the Code) or is otherwise subject to Title IV of ERISA or Section 412 of the Code. To the Purchaser’s Knowledge, no Purchaser Benefit Plan will become a multiple employer plan with respect to any Purchaser Entity immediately after the Closing Date. Neither the Purchaser nor any Subsidiary currently maintains or has ever maintained, or is required currently or has ever been required to contribute to or otherwise participate in, a multiple employer welfare arrangement or voluntary employees’ beneficiary association as defined in Section 501(c)(9) of the Code. For purposes of this Agreement, “ERISA Affiliate” means, with respect to any Person, any Person or entity (whether or not incorporated) that is under common control or treated as one employer under Section 4001(b)(1) of ERISA or Section 414(b), (c), (m) or (o) of the Code.
Appears in 1 contract
Samples: Stock Purchase Agreement (American Safety Insurance Holdings LTD)
Benefit Plans. (ia) Set forth on Schedule 3.19(a4.19(a) is a true and complete list of each material Benefit Plan of a Target Company as of the Purchaser and its Subsidiaries date hereof (each, a “Purchaser Company Benefit Plan”). With respect to each Purchaser Company Benefit Plan, there are no funded benefit obligations for which contributions have not been materially made or properly accrued and there are no material unfunded benefit obligations that have not been accounted for by reserves, or otherwise properly footnoted in accordance with GAAP on the Purchaser Company Financials. Except as set forth on Schedule 3.19(a), neither the Purchaser nor any Subsidiary No Target Company is or has in the past been a member of a “controlled group” for purposes of Section 414(b), (c), (m) or (o) of the Code with respect to any person or entity other than with the Purchaser or another SubsidiaryTarget Company, nor does the Purchaser or any Subsidiary Target Company have any Liability with respect to any collectively-bargained for benefit plans, whether or not subject to the provisions of ERISA.
(iib) Each Purchaser Company Benefit Plan in all material respects is and has been operated at all times in compliance with all applicable Laws in all material respects, including ERISA and the Code. Each Purchaser Company Benefit Plan which is intended to be “qualified” within the meaning of Section 401(a) of the Code (i) has been determined by the IRS to be so qualified (or is based on a prototype plan which has received a favorable opinion letter) during the period from its adoption to the date of this Agreement and (ii) is funded through a its related trust has been determined to be exempt from taxation under Section 501(a) of the CodeCode or the Target Companies have requested an initial favorable IRS determination of qualification and/or exemption within the period permitted by applicable Law. To the Knowledge of the PurchaserCompany’s Knowledge, no fact exists which that could adversely affect the qualified status of such Purchaser Company Benefit Plans or the exempt status of such trusts.
(iiic) With respect to each Purchaser Company Benefit PlanPlan that covers any current or former officer, director, consultant or employee (or beneficiary thereof) of a Target Company, the Purchaser Company has made available to the Seller Purchaser accurate and complete copies, if applicable, of: (i) all Purchaser Company Benefit Plan documents and agreements Plans and related trust agreements or annuity Contracts (including any amendments, modifications or supplements thereto); (ii) all summary plan descriptions and material modifications thereto; (iii) the three (3) most recent Forms 5500, if applicable, and annual report, including all schedules thereto; (iv) the most recent annual and periodic accounting of plan assets; (v) the three (3) most recent nondiscrimination testing reports; (vi) the most recent determination letter received from the IRS, if any; (vii) the most recent actuarial valuation; and (viii) all material written communications between the Purchaser or any Subsidiary or any Purchaser Benefit Plan and with any Governmental Authority and relating to a Purchaser Benefit Plan within six the last three (63) years preceding the date of this Agreementyears.
(ivd) With respect to each Purchaser Company Benefit Plan: (i) such Purchaser Benefit Plan to the Knowledge of the Company, no breach of fiduciary duty that could reasonably be expected to result in Liability to any Target Company has been administered and enforced in all material respects in accordance with its terms, the Code and ERISAoccurred; (ii) neither the Purchaser nor any Subsidiary nor any employee, officer or director thereof that is a fiduciary (under ERISA) with respect to such Purchaser Benefit Plan has breached any of its fiduciary responsibilities, obligations or duties imposed on it by ERISA; (iii) no Action is pending pending, or to the Company’s Knowledge, threatened in writing (other than routine claims for benefits arising in the ordinary course of administration); and (iviii) nothing has occurred with respect to any Purchaser Benefit Plan that has subjected the Purchaser or any Subsidiary to any material penalty under no prohibited transaction, as defined in Section 502 406 of ERISA or Section 4975 of the Code; and (v) all contributions and premiums due through the Closing Date have been made , has occurred that could reasonably be likely to result in all material respects as required under ERISA liability to any Target Company, excluding transactions effected pursuant to a statutory or have been fully accrued in all material respects on the Purchaser Financialsadministration exemption.
(ve) No Purchaser Benefit Plan isDuring the six (6) year period preceding the Effective Time, and neither the Purchaser or any Subsidiary no Target Company or any of their respective ERISA Affiliates sponsorshas maintained, maintains, contributes to, is required to contribute contributed to, or otherwise has or could reasonably be expected had an obligation to have any current or contingent Liability under or with respect to, contribute to (i) a “defined benefit plan” (as defined in Section 414(j) of the Code), (ii) a “multiemployer plan” (as defined in Section 3(37) of ERISA) or (iii) a “multiple employer plan” (as described in Section 413(c) of the Code) or ). No Company Benefit Plan is otherwise subject to Title IV of ERISA or Section 412 of the Code. To , and neither the PurchaserTarget Company nor any ERISA Affiliate has incurred any Liability, contingent or otherwise, under Title IV of ERISA and, to the Company’s Knowledge, no Purchaser condition presently exists that is expected to cause such Liability to be incurred. No Company Benefit Plan will become a multiple employer plan with respect to any Purchaser Entity Target Company immediately after the Closing Date. Neither the Purchaser nor any Subsidiary No Target Company currently maintains or has ever maintained, or is required currently or has ever been required to contribute to or otherwise participate in, a multiple employer welfare arrangement or voluntary employees’ beneficiary association as defined in Section 501(c)(9) of the Code.
(f) With respect to each Company Benefit Plan that is a “welfare plan” (as described in Section 3(1) of ERISA): (i) no such plan provides medical or death benefits with respect to current or former employees of a Target Company beyond their termination of employment (other than coverage mandated by Law); and (ii) there are no reserves, assets, surplus or prepaid premiums under any such plan. For purposes Each Target Company has complied in all material respects with the provisions of Section 601 et seq. of ERISA and Section 4980B of the Code.
(g) The consummation of the transactions contemplated by this Agreement and the Ancillary Documents will not, by itself: (i) entitle any individual to severance pay, unemployment compensation or other benefits or compensation or (ii) accelerate the time of payment or vesting, or increase the amount of any compensation due, or in respect of, any individual. No Target Company has incurred any Liability for any Tax imposed under Chapter 43 of the Code or civil liability under Section 502(i) or (l) of ERISA.
(h) Except to the extent required by Section 4980B of the Code or similar state Law, no Target Company provides health or welfare benefits to any former or retired employee or is obligated to provide such benefits to any active employee following such employee’s retirement or other termination of employment or service.
(i) Each Company Benefit Plan that is subject to Section 409A of the Code (each, a “Section 409A Plan”) has been administered in compliance, and is in documentary compliance, in each case in all material respects, with the applicable provisions of Section 409A of the Code, the regulations thereunder and other official guidance issued thereunder. There is no Contract or plan to which any Target Company is a party or by which it is bound to compensate any employee, consultant or director for any Taxes or interest imposed pursuant to Section 409A of the Code.
(j) The Company has made available to the Purchaser complete and accurate copies of the Company Equity Plan and forms of agreements used thereunder, and the stock option agreement evidencing the Company Non-Plan Option. Schedule 4.3(b) sets forth the beneficial and record owners of all outstanding Company Options and the Company Non-Plan Option as of the date of this Agreement (including the grant date, number and type of shares issuable thereunder, the exercise price, the expiration date and any vesting schedule).
(k) Each Company Option intended to qualify as an “incentive stock option” under the Code so qualifies. Each grant of a Company Option and Company Non-Plan Option was duly authorized no later than the date on which the grant of such Company Option or Company Non-Plan Option was by its terms to be effective by all necessary corporate action, and: (i) the stock option agreement governing such grant was duly executed and delivered by each party thereto (including electronic execution and delivery); (ii) each such grant was made in accordance with the terms of the Company Equity Plan (except for the Company Non-Plan Option) and all other applicable Laws; (iii) the per share exercise price of each Company Option and Company Non-Plan Option was equal or greater than the fair market value (within the meaning of Section 409A of the Code) of a share of Company Common Stock on the applicable grant date; and (iv) each such grant was properly accounted for in accordance with GAAP in the financial statements (including the related notes) of the Company.
(l) Each Foreign Pension Plan has been maintained in all material respects in compliance with its terms and with the requirements of all applicable Laws and has been maintained, where required, in good standing with applicable regulatory authorities. Each Target Company has complied in all material respects with the requirements of any Foreign Statutory Plan. As of the date of this Agreement, “ERISA Affiliate” means, all contributions required to be made with respect to a Foreign Pension Plan or a Foreign Statutory Plan have been timely made. As of the date of this Agreement, no Target Company has incurred any Personobligation in connection with the termination of, or withdrawal from, any Person Foreign Pension Plan or entity Foreign Statutory Plan. No Target Company located outside of the United States is an “own risk bearer” (eigen rxxxxx xxxxxx) for any statutory social benefits. The present value of the accrued benefit liabilities (whether or not incorporatedvested) that is under common control or treated each Foreign Pension Plan, determined as one employer under Section 4001(b)(1) of ERISA or Section 414(b), (c), (m) or (o) of the Codeend of the Target Company’s most recently ended fiscal year on the basis of actuarial assumptions, each of which is reasonable, did not exceed the current value of the assets of such Foreign Pension Plan allocable to such benefit liabilities.
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Benefit Plans. (ia) Set forth on Schedule 3.19(a4.15(a) is lists all Benefit Plans sponsored by Xxxxx-Xxxxx and its ERISA Affiliates. Such Benefit Plans have been maintained in compliance in all material respects with their terms and applicable Law. Seller has provided to Buyer, to the extent applicable to each such Benefit Plan, a true and complete list of each material Benefit Plan copy of the Purchaser and its Subsidiaries (each, a “Purchaser following: the plan document for each such Benefit Plan”); the related trust agreement, insurance contract or other funding arrangement; the most recent report on Form 5500; and the most recent summary plan description. With respect to each Purchaser Benefit Plan, there There are no funded benefit obligations Proceedings pending (other than routine claims for which benefits) or, to the Knowledge of Seller, threatened against, or with respect to, any of such Benefit Plans or their assets. All contributions required to be made to such Benefit Plans pursuant to their terms and the provisions of applicable Law have not been materially timely made or properly accrued and there are no material unfunded benefit obligations that have not been accounted for by reserves, or otherwise properly footnoted in accordance with GAAP on the Purchaser Financialsbooks of Xxxxx-Xxxxx in a manner consistent with past practice. Except as set forth on Schedule 3.19(a), neither the Purchaser nor any Subsidiary or has in the past been a member of a “controlled group” for purposes of Section 414(b), (c), (m) or (o) of the Code other than with the Purchaser or another Subsidiary, nor does the Purchaser or any Subsidiary have any Liability There is no matter pending with respect to any collectively-bargained for plansof such Benefit Plans before any Governmental Entity. For purposes of this Agreement, an “ERISA Affiliate” means each trade or business (whether or not subject to the provisions of ERISA.
(iiincorporated) Each Purchaser Benefit Plan in all material respects is and has been operated in compliance that together with all applicable Laws in all material respects, including ERISA and the Code. Each Purchaser Benefit Plan which is intended Xxxxx-Xxxxx would be deemed to be a “qualifiedsingle employer” within the meaning of Section 401(a) 4001 of the Code (i) has been determined by the IRS to be so qualified (ERISA or is based on a prototype plan which has received a favorable opinion letter) during the period from its adoption to the date of this Agreement and (ii) is funded through a trust exempt from taxation under Section 501(a) 414 of the Code. To the Knowledge of the Purchaser, no fact exists which could adversely affect the qualified status of such Purchaser Schedule 4.15(a) also lists all Benefit Plans or the exempt status of such trustssponsored by XxxXxxxx in which Workers are eligible to participate.
(iiib) With respect to each Purchaser Benefit PlanNeither Xxxxx-Xxxxx nor any ERISA Affiliate of Xxxxx-Xxxxx sponsors, maintains, or directly contributes to, or has, within the Purchaser has made available to the Seller accurate and complete copies, if applicable, of: (i) all Purchaser Benefit Plan documents and agreements and related trust agreements or annuity Contracts (including any amendments, modifications or supplements thereto); (ii) all summary plan descriptions and material modifications thereto; (iii) the three (3) most recent Forms 5500, if applicable, and annual report, including all schedules thereto; (iv) the most recent annual and periodic accounting of plan assets; (v) the three (3) most recent nondiscrimination testing reports; (vi) the most recent determination letter received from the IRS, if any; (vii) the most recent actuarial valuation; and (viii) all material written communications between the Purchaser or any Subsidiary or any Purchaser Benefit Plan and any Governmental Authority and relating to a Purchaser Benefit Plan within past six (6) years preceding the date of this Agreement.
(iv) With respect to each Purchaser Benefit Plan: (i) such Purchaser Benefit Plan has been administered and enforced in all material respects in accordance with its termsyears, the Code and ERISA; (ii) neither the Purchaser nor any Subsidiary nor any employeesponsored, officer maintained or director thereof that is a fiduciary (under ERISA) with respect to such Purchaser Benefit Plan has breached any of its fiduciary responsibilities, obligations or duties imposed on it by ERISA; (iii) no Action is pending or threatened in writing (other than routine claims for benefits arising in the ordinary course of administration); (iv) nothing has occurred with respect to any Purchaser Benefit Plan that has subjected the Purchaser or any Subsidiary to any material penalty under Section 502 of ERISA or Section 4975 of the Code; and (v) all contributions and premiums due through the Closing Date have been made in all material respects as required under ERISA or have been fully accrued in all material respects on the Purchaser Financials.
(v) No Purchaser Benefit Plan is, and neither the Purchaser or any Subsidiary or any of their respective ERISA Affiliates sponsors, maintains, contributes directly contributed to, is required to contribute to, or otherwise has or could reasonably be expected to have any current or contingent Liability under or with respect to, a “defined benefit plan” (as defined in Section 414(j) of the Code), a “multiemployer plan” (as defined in within the meaning of Section 3(37) of ERISA) or ), a “multiple employer plan” (as described in Section 413(c) of the Code) or is otherwise plan subject to Title IV of ERISA or Section 412 of the Code. To , a plan intended to be qualified under Section 401(a) of the Purchaser’s Knowledge, no Purchaser Benefit Plan will become a multiple employer plan with respect to any Purchaser Entity immediately after the Closing Date. Neither the Purchaser nor any Subsidiary currently maintains or has ever maintainedCode, or a plan funded pursuant to a trust that is required currently or has ever been required intended to contribute be exempt from federal income taxation pursuant to or otherwise participate in, a multiple employer welfare arrangement or voluntary employees’ beneficiary association as defined in Section 501(c)(9) of the Code.
(c) Xxxxx-Xxxxx and its ERISA Affiliates have paid and discharged promptly all obligations and liabilities arising under ERISA or the Code of a character which, if unpaid or unperformed, might result in a claim against Buyer or Xxxxx-Xxxxx or the imposition of a lien against Xxxxx-Xxxxx or its assets. For purposes The execution and delivery of this AgreementAgreement and the consummation of the Transactions or the Reorganization will not (i) require Xxxxx-Xxxxx to make a larger contribution to, “ERISA Affiliate” means, with respect to any Personor pay greater benefits or provide other rights under, any Person or entity (Benefit Plan than it otherwise would, whether or not incorporated) that is under common control some other subsequent action or treated as one employer under Section 4001(b)(1) of ERISA event would be required to cause such payment or Section 414(b)provision to be triggered, (c), (m) or (oii) of the Codecreate or give rise to any additional vested rights or service credits under any Benefit Plan.
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Samples: Purchase and Sale Agreement (Forum Energy Technologies, Inc.)
Benefit Plans. (a) Schedule 4.16(a) provides a description of each of the following which is sponsored, maintained or contributed to by BRG for the benefit of the employees of BRG, or has been so sponsored, maintained or contributed to within six years prior to the Closing Date:
(i) Set forth on Schedule 3.19(aeach "employee benefit plan," as such term is defined in Section 3(3) of ERISA (including, but not limited to, employee benefit plans, such as foreign plans, which are not subject to the provisions of ERISA) ("Benefit Plan");
(ii) each personnel policy, stock option plan, collective bargaining agreement, bonus plan or arrangement, incentive award plan or arrangement, vacation policy, severance pay plan, policy, or agreement, deferred compensation agreement or arrangement, executive compensation or supplemental income arrangement, consulting agreement, employment agreement, and each other employee benefit plan, agreement, arrangement, program, practice, or understanding which is a true not described in Section 4.16(a)(i) ("Benefit Program or Agreement").
(b) True, correct, and complete list copies of each material Benefit Plan of the Purchaser Benefit Plans, and its Subsidiaries (eachrelated trusts, a “Purchaser Benefit Plan”)if applicable, including all amendments thereto, have been furnished or made available to Buyer. With There has also been furnished or made available to Buyer, with respect to each Purchaser Benefit PlanPlan required to file such report and description, there are no funded benefit obligations for which contributions the most recent report on Form 5500 and the summary plan description. True, correct, and complete copies or descriptions of all Benefit Programs and Agreements have not also been materially furnished or made or properly accrued and there are no material unfunded benefit obligations that have not been accounted for by reserves, or otherwise properly footnoted in accordance with GAAP on the Purchaser Financials. available to Buyer.
(c) Except as otherwise set forth on Schedule 3.19(a4.16(c),
(i) BRG does not contribute to or have an obligation to contribute to, neither and has not at any time within six years prior to the Purchaser nor any Subsidiary Closing Date contributed to or had an obligation to contribute to, a multiemployer plan within the meaning of Section 3(37) of ERISA;
(ii) All reports and disclosures relating to the Benefit Plans required to be filed with or furnished to governmental agencies, Benefit Plan participants or Benefit Plan beneficiaries have been filed or furnished in accordance with applicable law in a timely manner, and each Benefit Plan and each Benefit Program or Agreement has been administered in substantial compliance with its governing documents;
(iii) Each of the Benefit Plans intended to be qualified under Section 401 of the Code, (A) satisfies in form and operation the requirements of such Section except to the extent amendments are not required by law to be made until a date after the Closing Date, (B) has received a favorable determination letter from the Internal Revenue Service regarding such qualified status, (C) has not, since receipt of the most recent favorable determination letter, been amended, and (D) has not been operated in a way that would adversely affect its qualified status;
(iv) No Benefit Plan subject to Title IV of ERISA is sponsored, maintained or contributed to or has in been sponsored, maintained or contributed to within six years prior to the past been a member of a “controlled group” for purposes Closing Date by BRG or any corporation, trade business or entity under common control with BRG, within the meaning of Section 414(b), (c), (m) or (om) of the Code other than with the Purchaser or another Subsidiary, nor does the Purchaser or any Subsidiary have any Liability with respect Section 4001 of ERISA;
(v) As to any collectively-bargained for plansBenefit Plan intended to be qualified under Section 401 of the Code, whether there has been no termination or not subject to partial termination of the provisions Benefit Plan within the meaning of Section 411(d)(3) of the Code;
(vi) No act, omission or transaction has occurred which would result in imposition on BRG of (A) breach of fiduciary duty liability damages under Section 409 of ERISA., (B) a civil penalty assessed pursuant to subsections (c), (i) or (l) of Section 502 of ERISA, or (C) a tax imposed pursuant to Chapter 43 of Subtitle D of the Code;
(iivii) Each Purchaser No Benefit Plan in all material respects is and or has been operated in compliance with all applicable Laws in all material respects, including ERISA and the Code. Each Purchaser Benefit Plan funded by BRG through a trust which is intended to be “qualified” within the meaning of Section 401(a) of the Code (i) has been determined by the IRS to be so qualified (or is based on a prototype plan which has received a favorable opinion letter) during the period from its adoption to the date of this Agreement and (ii) is funded through a trust exempt from federal income taxation under Section 501(a) of the Code. To the Knowledge of the Purchaser, no fact exists which could adversely affect the qualified status of such Purchaser Benefit Plans or the exempt status of such trusts.
(iii) With respect pursuant to each Purchaser Benefit Plan, the Purchaser has made available to the Seller accurate and complete copies, if applicable, of: (i) all Purchaser Benefit Plan documents and agreements and related trust agreements or annuity Contracts (including any amendments, modifications or supplements thereto); (ii) all summary plan descriptions and material modifications thereto; (iii) the three (3) most recent Forms 5500, if applicable, and annual report, including all schedules thereto; (iv) the most recent annual and periodic accounting of plan assets; (v) the three (3) most recent nondiscrimination testing reports; (vi) the most recent determination letter received from the IRS, if any; (vii) the most recent actuarial valuation; and (viii) all material written communications between the Purchaser or any Subsidiary or any Purchaser Benefit Plan and any Governmental Authority and relating to a Purchaser Benefit Plan within six (6) years preceding the date of this Agreement.
(iv) With respect to each Purchaser Benefit Plan: (i) such Purchaser Benefit Plan has been administered and enforced in all material respects in accordance with its terms, the Code and ERISA; (ii) neither the Purchaser nor any Subsidiary nor any employee, officer or director thereof that is a fiduciary (under ERISA) with respect to such Purchaser Benefit Plan has breached any of its fiduciary responsibilities, obligations or duties imposed on it by ERISA; (iii) no Action is pending or threatened in writing (other than routine claims for benefits arising in the ordinary course of administration); (iv) nothing has occurred with respect to any Purchaser Benefit Plan that has subjected the Purchaser or any Subsidiary to any material penalty under Section 502 of ERISA or Section 4975 of the Code; and (v) all contributions and premiums due through the Closing Date have been made in all material respects as required under ERISA or have been fully accrued in all material respects on the Purchaser Financials.
(v) No Purchaser Benefit Plan is, and neither the Purchaser or any Subsidiary or any of their respective ERISA Affiliates sponsors, maintains, contributes to, is required to contribute to, or otherwise has or could reasonably be expected to have any current or contingent Liability under or with respect to, a “defined benefit plan” (as defined in Section 414(j) of the Code), a “multiemployer plan” (as defined in Section 3(37) of ERISA) or a “multiple employer plan” (as described in Section 413(c) of the Code) or is otherwise subject to Title IV of ERISA or Section 412 of the Code. To the Purchaser’s Knowledge, no Purchaser Benefit Plan will become a multiple employer plan with respect to any Purchaser Entity immediately after the Closing Date. Neither the Purchaser nor any Subsidiary currently maintains or has ever maintained, or is required currently or has ever been required to contribute to or otherwise participate in, a multiple employer welfare arrangement or voluntary employees’ beneficiary association as defined in Section 501(c)(9) of the Code. For purposes ;
(d) Except as otherwise set forth in Schedule 7.9, BRG is not a party to any agreement, nor has it established any policy or practice, requiring it to make a payment or provide any other form of compensation or benefit to any person performing services for BRG upon termination of such services which would not be payable or provided in the absence of the consummation of the transactions contemplated by this Agreement, “ERISA Affiliate” means, with respect to any Person, any Person or entity .
(whether or not incorporatede) that Each Benefit Plan which is under common control or treated an "employee welfare benefit plan," as one employer under such term is defined in Section 4001(b)(13(1) of ERISA ERISA, may be unilaterally amended or Section 414(b), (c), (m) terminated in its entirety without liability except as to benefits accrued thereunder prior to such amendment or (o) of the Codetermination.
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Benefit Plans. (ia) Set forth on Schedule 3.19(a) Neither the Company nor any other ERISA Affiliate sponsors, maintains, contributes to, is required to contribute to or has or could have any liability of any nature, whether known or unknown, direct or indirect, fixed or contingent, with respect to, any Pension Plan, including, without limitation, any such plan that is excluded from coverage by Section 4 of ERISA or is a true and complete list of each material Benefit Plan of the Purchaser and its Subsidiaries (each, a “Purchaser Benefit Multiemployer Plan”). With respect to each Purchaser Benefit Plan, there are no funded benefit obligations for which contributions have not been materially made or properly accrued and there are no material unfunded benefit obligations that have not been accounted for by reserves, or otherwise properly footnoted in accordance with GAAP on the Purchaser Financials. Except as set forth on Schedule 3.19(a), neither the Purchaser nor any Subsidiary or has in the past been a member of a “controlled group” for purposes of Section 414(b), (c), (m) or (o) of the Code other than with the Purchaser or another Subsidiary, nor does the Purchaser or any Subsidiary have any Liability with respect to any collectively-bargained for plans, whether or not subject to the provisions of ERISA.
(ii) Each Purchaser Benefit Plan in all material respects is and has been operated in compliance with all applicable Laws in all material respects, including ERISA and the Code. Each Purchaser Benefit Plan which is intended to be “qualified” within the meaning of Section 401(a3(37) or 4001(a)(3) of the Code (i) has been determined by the IRS to be so qualified (or ERISA. Each such Pension Plan that is based on a prototype plan which has received a favorable opinion letter) during the period from its adoption to the date of this Agreement and (ii) is funded through a trust exempt from taxation under Section 501(a) of the Code. To the Knowledge of the Purchaser, no fact exists which could adversely affect the qualified status of such Purchaser Benefit Plans or the exempt status of such trusts.
(iii) With respect to each Purchaser Benefit Plan, the Purchaser has made available to the Seller accurate and complete copies, if applicable, of: (i) all Purchaser Benefit Plan documents and agreements and related trust agreements or annuity Contracts (including any amendments, modifications or supplements thereto); (ii) all summary plan descriptions and material modifications thereto; (iii) the three (3) most recent Forms 5500, if applicable, and annual report, including all schedules thereto; (iv) the most recent annual and periodic accounting of plan assets; (v) the three (3) most recent nondiscrimination testing reports; (vi) the most recent determination letter received from the IRS, if any; (vii) the most recent actuarial valuation; and (viii) all material written communications between the Purchaser or any Subsidiary or any Purchaser Benefit Plan and any Governmental Authority and relating to a Purchaser Benefit Plan within six (6) years preceding the date of this Agreement.
(iv) With respect to each Purchaser Benefit Plan: (i) such Purchaser Benefit Multiemployer Plan has been administered and enforced operated in all material respects in accordance with its termsterms and is 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 which the Company operates as plans that are qualified under the provisions of Section 401(a) of the Code satisfy in form and operation all applicable qualification requirements and has not received in the preceding seven (ii7) neither years or committed to receive a transfer of assets and/or liabilities or spin-off from another plan, except transfers, which qualify as transfers from eligible rollover distributions within the Purchaser meaning of Code Section 402(c)(4). Neither the Company nor any Subsidiary other 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 nor has ever been “top-heavy” pursuant to Section 416 of the Code.
(c) The Disclosure Schedule sets forth the name of each ERISA Affiliate.
(d) Neither the Company nor any employeeother ERISA Affiliate has or could have any liability of any nature, officer whether known or director thereof that is a fiduciary (unknown, direct or indirect, fixed or contingent, to any Pension Plan, the Pension Benefit Guaranty Corporation or any other Person, arising directly or indirectly under ERISA) with respect to such Purchaser Benefit Plan has breached any Title IV of its fiduciary responsibilities, obligations or duties imposed on it by ERISA; (iii) no Action is pending or threatened in writing (ERISA other than routine claims liability pursuant to Section 4007 for benefits arising in premiums which are not yet due (without regard to any waiver). No “reportable event,” within the ordinary course meaning of administration); (iv) nothing Section 4043 of ERISA, has occurred with respect to any Purchaser Benefit Pension Plan subject to Title IV of ERISA. Neither the Company nor any other ERISA Affiliate has ceased operations at any facility or withdrawn from any Company Pension Plan in a manner which could subject the Company or any other ERISA Affiliate to liability under Section 4062(e), 4063 or 4064 of ERISA. Neither the Company nor any other 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 other ERISA Affiliate has subjected the Purchaser 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 any Subsidiary secondary withdrawal liability) to any material penalty under Multiemployer Plan. Neither the Company nor any other ERISA Affiliate has incurred, or has experienced an event that will, within the ensuing 12 months, result in, a “complete withdrawal” or “partial withdrawal,” as such terms are defined respectively in Sections 4203 and 4205 of ERISA, with respect to a Pension Plan which is a Multiemployer Plan, and nothing has occurred that could result in such a complete or partial withdrawal. Neither the Company nor any other ERISA Affiliate has incurred a decline in contributions to any Multiemployer Plan such that, if the current rate of contributions continues, a 70 percent decline in contributions (as defined in Section 502 4205 of ERISA or Section 4975 of ERISA) will occur within the Code; and (v) all contributions and premiums due through the Closing Date have been made in all material respects as required under ERISA or have been fully accrued in all material respects on the Purchaser Financialsnext three plan years.
(ve) No Purchaser Benefit Plan is, and neither Neither the Purchaser or Company nor any Subsidiary or any of their respective other ERISA Affiliates Affiliate sponsors, maintains, contributes to, is required to contribute to, or otherwise has or could reasonably be expected have any liability of any nature, whether known or unknown, direct or indirect, fixed or contingent, with respect to any Welfare Plan, whether insured or otherwise, including, without limitation, any such plan that is a Multiemployer Plan within the meaning of Section 3(37) of ERISA. Each 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, 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, 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 or any other ERISA Affiliate. No insurance policy or contract requires or permits retroactive increase in premiums or payments due thereunder. Neither the Company nor any other ERISA Affiliate has established or contributed to, is required to contribute to or has or could have any liability of any nature, whether known or unknown, direct or indirect, fixed or contingent, with respect to any “voluntary employees’ beneficiary association” within the meaning of Section 501I(9) of the Code, “welfare benefit fund” within the meaning of Section 419 of the Code, “qualified asset account” within the meaning of Section 419A of the Code or “multiple employer welfare arrangement” within the meaning of Section 3(40) of ERISA. No Welfare Plan that is a Multiemployer Plan imposes any post-withdrawal liability or contribution obligations upon the Company or any ERISA Affiliate. Neither the Company nor any other ERISA Affiliate maintains, contributes to or has or could have any liability of any nature, whether known or unknown, direct or indirect, fixed or contingent, with respect to retiree medical coverage or other medical, health, life or other welfare benefits for present or future terminated employees or their spouses or dependents other than as required by Part 6 of Subtitle B of Title I of ERISA or any comparable state law.
(f) Neither the Company nor any other ERISA Affiliate is a party to, maintains, contributes to, is required to contribute to or has or could have any liability of any nature, whether known or unknown, direct or indirect, fixed or contingent, with respect to any Compensation Plan. Each Compensation Plan has been operated in all material respects in accordance with its terms and in compliance with Applicable Law.
(g) There are no facts or circumstances which could, directly or indirectly, subject the Company or any other ERISA Affiliate to any (i) excise tax or other liability under Chapters 43, 46 or 47 of Subtitle D of the Code, (ii) penalty tax or other liability under Chapter 68 of Subtitle F of the Code or (iii) civil penalty, damages or other liabilities arising under Section 502 of ERISA.
(h) Full payment has been made of all amounts which the Company or any other ERISA Affiliate is required, under Applicable Law, the terms of any Benefit Plan, or any agreement relating to any Benefit Plan, to have paid as a contribution, premium or other remittance thereto or benefit thereunder. Each Pension Plan that is subject to the minimum funding standards of Section 412 of the Code and/or Section 302 of ERISA meets those standards and has not incurred any current accumulated funding deficiency within the meaning of Section 412 or contingent Liability under 418B of the Code or Section 302 of ERISA and no waiver of any minimum funding requirements has been applied for or obtained with respect toto any Pension Plan. The Company and each other ERISA Affiliate has made adequate provisions for reserves or accruals in accordance with GAAP to meet contribution, benefit or funding obligations arising under Applicable Law or the terms of any Benefit Plan or related agreement.
(i) The Company and each other ERISA Affiliate has timely complied in all material respects with all reporting and disclosure obligations with respect to the Benefit Plans imposed by the Code, ERISA or other Applicable Law.
(j) There are no pending or, to the Company’s Knowledge, threatened audits, investigations, claims, suits, grievances or other proceedings, and there are no facts that could give rise thereto, involving, directly or indirectly, any Benefit Plan, or any rights or benefits thereunder, other than the ordinary and usual claims for benefits by participants, dependents or beneficiaries.
(k) The transactions contemplated herein do not result in any payment (whether of severance pay or otherwise), forgiveness of debt, distribution, increase in benefits, obligation to fund, or the acceleration of accrual, vesting, funding or payment of any contribution or benefit under any Benefit Plan. Except to the extent specifically disclosed on the Disclosure Schedule, no amount that could be received (whether in cash or property or the vesting of property) as a result of any of the transactions contemplated by this Agreement by any employee, officer, or director of the Company or any ERISA Affiliate who is a “disqualified individual” (as such term is defined in proposed Treasury Regulation Section 1.280G-1) under any Benefit Plan currently in effect would be an “excess parachute payment” (as such term is defined in Section 280G(b)(1) of the Code).
(l) No employer other than the Company and/or an ERISA Affiliate is permitted to participate or participates in the Benefit Plans. No leased employees (as defined in Section 414(n) of the Code) or independent contractors are eligible for, or participate in, any Benefit Plans.
(m) No action or omission of the Company or any other ERISA Affiliate or any director, officer, employee, or agent thereof in any way restricts, impairs or prohibits the Parent, the Company, any other ERISA Affiliate or any successor from amending, merging, or terminating any Benefit Plan in accordance with the express terms of any such plan and Applicable Law.
(n) The Disclosure Schedule lists the name of each Benefit Plan. The Company has delivered to the Parent true and complete copies of all Benefit Plan documents and related trust agreements or other agreements or contracts evidencing any funding vehicle with respect thereto, including all amendments. The Company has delivered to the Parent true and complete copies of: (i) the three most recent annual reports on Treasury Form 5500, including all schedules and attachments thereto, with respect to any Benefit Plan for which such a report is required; (ii) the three most recent actuarial reports with respect to any Pension Plan that is a “defined benefit plan” (as defined in within the meaning of Section 414(j) of the Code); (iii) the form of summary plan description, including any summary of material modifications thereto or other modifications communicated to participants, currently in effect with respect to each Benefit Plan; (iv) ) true and correct copies of the Welfare Plan documents establishing compliance with HIPAA requirements, including required plan document and summary plan description language, certificates of creditable coverage, appointment of privacy and security officials, notice of privacy practices, privacy and security policies and procedures, business associate agreements and amendments, security risk analysis evaluation documents, the privacy and security group health plan document amendment and the privacy certification of amendment; (v) the most recent determination letter with respect to each Pension Plan intended to qualify under Section 401(a) of the Code and the full and complete application therefore submitted to the Internal Revenue Service; and (vi) all professional opinions, material internal memoranda, material correspondence with regulatory authorities and administrative policies, manuals, interpretations and the like with respect to each Benefit Plan.
(o) The Disclosure Schedule lists each Benefit Plan that is or may be, in whole or in part, subject to Section 409A of the Code (each such plan or part thereof, a “multiemployer planSection 409A Benefit Plan”). Except as set forth in the Disclosure Schedule, (i) each Section 409A Benefit Plan complies in form with Section 409A of the Code, and (ii) no service provider under any Section 409A Benefit Plan is subject to the additional income tax under Section 409A of the Code.
(p) The Disclosure Schedule lists and the Company has delivered to the Parent true and correct copies of the Welfare Plan documents establishing compliance with the HIPAA Privacy Regulations, including appointment of a privacy official, its Notice of HIPAA Privacy Practices, privacy policies and procedures, and the plan administrator’s group health plan document amendment certification.
(q) The Company has properly determined and timely collected and reported all Federal Insurance Contribution Act (“FICA”) taxes imposed under Sections 3101 and 3111 of the Code on remuneration for employment that constitutes “wages” (as defined in within the meaning of Section 3(37) of ERISA) or a “multiple employer plan” (as described in Section 413(c3121(a) of the Code, including amounts deferred under nonqualified deferred compensation plans, agreements or arrangements.
(r) or is otherwise subject to Title IV of ERISA or Section 412 As of the Codedate hereof the Company has ceased contributions to and/or taken the necessary actions in order to terminate certain of the Company Benefit Plans, each such plan separately listed on the Disclosure Schedule as “Terminated Company Benefit Plans.” In connection with the termination of the Company 401(k) Plan, the Company has provided copies to the Parent of (a) resolutions adopted by the Company’s Board to terminate such Company 401(k) Plan and to fully (100%) vest all participants under said Company 401(k) Plan, such termination and vesting effective as of Axxxx 00, 0000, (x) a signed plan amendment and (c) notice of the Company 401(k) Plan termination to participants and any trustees and custodians of the Company 401(k) Plan and/or its assets. To the Purchaser’s Knowledge, no Purchaser Benefit Plan will become a multiple employer plan with With respect to any Purchaser Entity immediately after other Terminated Company Benefit Plan, the Closing Date. Neither Company has provided copies to the Purchaser nor any Subsidiary currently maintains or has ever maintainedParent of (a) resolutions adopted by the Company’s Board to terminate such Company Benefit Plan, or is required currently or has ever been required to contribute to or otherwise participate in, a multiple employer welfare arrangement or voluntary employees’ beneficiary association as defined in Section 501(c)(9(b) signed plan amendments and (c) notices of the Code. For purposes termination of this Agreementsuch Company Benefit Plans to participants, “ERISA Affiliate” meansinsurance companies, with respect to any Person, any Person or entity (whether or not incorporated) that is under common control or treated as one employer under Section 4001(b)(1) of ERISA or Section 414(b), (c), (m) or (o) of the Codethird-party administrators and other vendors.
Appears in 1 contract
Samples: Merger Agreement (American Medical Systems Holdings Inc)
Benefit Plans. (ia) Set forth on Schedule 3.19(a2.26(a) is a true and complete list of each material Benefit Plan of the Purchaser Final Disclosure Schedule sets forth all employee compensation and its Subsidiaries benefit plans, agreements, commitments, practices or arrangements of any type (eachincluding, a but not limited to, plans described in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“Purchaser Benefit PlanERISA”)) offered, maintained or contributed to by the Company for the benefit of current or former employees, directors or managers, or with respect to which the Company has or may have any liability, whether direct or indirect, actual or contingent (collectively, the “Benefit Plans”), and includes a written description of all oral Benefit Plans. There are no material compensation or benefit plans, agreements, commitments, practices or arrangements of any type providing benefits to employees, officers or directors, or with respect to which the Company may have any liability, other than the Benefit Plans.
(b) With respect to each Purchaser Benefit Plan, there are no funded benefit obligations for which contributions have not been materially made or properly accrued and there are no material unfunded benefit obligations that have not been accounted for by reserves, or otherwise properly footnoted in accordance with GAAP on the Purchaser Financials. Except as set forth on Schedule 3.19(a), neither the Purchaser nor any Subsidiary or has in the past been a member of a “controlled group” for purposes of Section 414(b), : (c), (mi) or (o) of the Code other than with the Purchaser or another Subsidiary, nor does the Purchaser or any Subsidiary have any Liability with respect to any collectively-bargained for plans, whether or not subject to the provisions of ERISA.
(ii) Each Purchaser Benefit Plan in all material respects is and has been operated in compliance with all applicable Laws in all material respects, including ERISA and the Code. Each Purchaser Benefit Plan which is if intended to be “qualified” within the meaning of qualify under Section 401(a) of the Code (i) has been determined by the IRS to be Code, such plan so qualified (or qualifies, and its trust is based on a prototype plan which has received a favorable opinion letter) during the period from its adoption to the date of this Agreement and (ii) is funded through a trust exempt from taxation under Section 501(a) of the Code. To the Knowledge of the Purchaser, no fact exists which could adversely affect the qualified status of such Purchaser Benefit Plans or the exempt status of such trusts.
(iii) With respect to each Purchaser Benefit Plan, the Purchaser has made available to the Seller accurate and complete copies, if applicable, of: (i) all Purchaser Benefit Plan documents and agreements and related trust agreements or annuity Contracts (including any amendments, modifications or supplements thereto); (ii) all summary such plan descriptions and material modifications thereto; (iii) the three (3) most recent Forms 5500, if applicable, and annual report, including all schedules thereto; (iv) the most recent annual and periodic accounting of plan assets; (v) the three (3) most recent nondiscrimination testing reports; (vi) the most recent determination letter received from the IRS, if any; (vii) the most recent actuarial valuation; and (viii) all material written communications between the Purchaser or any Subsidiary or any Purchaser Benefit Plan and any Governmental Authority and relating to a Purchaser Benefit Plan within six (6) years preceding the date of this Agreement.
(iv) With respect to each Purchaser Benefit Plan: (i) such Purchaser Benefit Plan has been administered and enforced in all material respects in accordance with its terms, the Code terms and ERISA; (ii) neither the Purchaser nor any Subsidiary nor any employee, officer or director thereof that is a fiduciary (under ERISA) with respect to such Purchaser Benefit Plan has breached any of its fiduciary responsibilities, obligations or duties imposed on it by ERISAall applicable Legal Requirements in all material respects; (iii) no Action is pending or threatened in writing (other than routine claims for benefits arising in the ordinary course breach of administration); (iv) nothing fiduciary duty has occurred with respect to which the Company or any Purchaser Benefit Plan that may be liable or otherwise damaged in any material respect; (iv) no material disputes nor any audits or investigations by any Governmental Entity are pending or, to the knowledge of the Seller Parties, threatened; (v) no “prohibited transaction” (within the meaning of either Section 4975(c) of the Code or Section 406 of ERISA) has subjected occurred with respect to which the Purchaser Company or any Subsidiary to Benefit Plan may be liable or otherwise damaged in any material penalty respect; (vi) all contributions, premiums, and other payment obligations of the Company have been accrued on the financial statements of the Company, and, to the extent due, have been made on a timely basis, in all material respects; (vii) all contributions or benefit payments made or required to be made under Section 502 of ERISA or Section 4975 of such plan meet the requirements for deductibility under the Code; (viii) the Company has expressly reserved in itself the right to amend, modify or terminate such plan, or any portion of it, at any time without liability to itself; and (vix) all contributions and premiums due through no such plan requires the Closing Date have been made in all material respects as required under ERISA Company to continue to employ any employee, manager or have been fully accrued in all material respects on the Purchaser Financialsdirector.
(vc) No Purchaser Benefit Plan (whether or not terminated) is, and neither the Purchaser or any Subsidiary or any of their respective ERISA Affiliates sponsorshas ever been, maintains, contributes to, is required to contribute to, or otherwise has or could reasonably be expected to have any current or contingent Liability under or with respect to, a “defined benefit plan” (as defined in Section 414(j) of the Code), a “multiemployer plan” (as defined in Section 3(37) of ERISA) or a “multiple employer plan” (as described in Section 413(c) of the Code) or is otherwise subject to Title IV of ERISA or Section 412 ERISA.
(d) With respect to each Benefit Plan which provides welfare benefits of the Code. To the Purchaser’s Knowledge, type described in Section 3(1) of ERISA: (i) no Purchaser Benefit Plan will become a multiple employer such plan provides medical or death benefits with respect to current or former employees, officers, directors or consultants (or any Purchaser Entity immediately after spouse or dependent thereof) beyond their termination of employment (or in the Closing Date. Neither case of directors or consultants, termination of service), other than coverage mandated by Sections 601-608 of ERISA and 4980B(f) of the Purchaser nor any Subsidiary currently maintains Code or similar state Legal Requirement (ii) each such plan has ever maintained, or is required currently or has ever been required to contribute to or otherwise participate in, a multiple employer welfare arrangement or voluntary employees’ beneficiary association as defined administered in Section 501(c)(9compliance with Sections 601-609 of ERISA and 4980B(f) of the Code. For purposes ; (iii) no such plan is or is provided through a “multiple employer welfare arrangement” within the meaning of this AgreementSection 3(40) of ERISA; and (iv) no such plan has reserves, “ERISA Affiliate” meansassets, with respect surpluses or prepaid premiums.
(e) The consummation of the Transactions will not (i) entitle any individual to severance pay, (ii) accelerate the time of payment or vesting under any Benefit Plan, or (iii) increase the amount of compensation or benefits due to any Person, any Person or entity (whether or not incorporated) that is under common control or treated as one employer under Section 4001(b)(1) of ERISA or Section 414(b), (c), (m) or (o) of the Codeindividual.
Appears in 1 contract
Samples: Asset Purchase and Contribution Agreement (BOSTON OMAHA Corp)
Benefit Plans. (ia) Set forth on Schedule 3.19(a) is a true and complete list of each material Benefit Plan of the Purchaser and its Subsidiaries (eachNeither REIT I nor any REIT I Subsidiary has ever maintained, a “Purchaser sponsored or contributed to any Benefit Plan”). With respect to each Purchaser Benefit Plan, there are no funded benefit obligations for which contributions have not been materially made or properly accrued and there are no material unfunded benefit obligations that have not been accounted for by reserves, or otherwise properly footnoted in accordance with GAAP on the Purchaser Financials. Except as set forth on Schedule 3.19(a), neither the Purchaser Neither REIT I nor any REIT I Subsidiary has any contract, plan or has in the past been a member of a “controlled group” for purposes of Section 414(b), (c), (m) or (o) of the Code other than with the Purchaser or another Subsidiary, nor does the Purchaser or any Subsidiary have any Liability with respect to any collectively-bargained for planscommitment, whether or not subject legally binding, to the provisions of ERISAcreate any Benefit Plan.
(iib) Each Purchaser Benefit Plan in all material respects is and has been operated in compliance with all applicable Laws in all material respects, including ERISA and the Code. Each Purchaser Benefit Plan which is intended to be “qualified” within the meaning of Section 401(a) of the Code (i) has been determined by the IRS to be so qualified (Except as individually or is based on a prototype plan which has received a favorable opinion letter) during the period from its adoption to the date of this Agreement and (ii) is funded through a trust exempt from taxation under Section 501(a) of the Code. To the Knowledge of the Purchaser, no fact exists which could adversely affect the qualified status of such Purchaser Benefit Plans or the exempt status of such trusts.
(iii) With respect to each Purchaser Benefit Plan, the Purchaser has made available to the Seller accurate and complete copies, if applicable, of: (i) all Purchaser Benefit Plan documents and agreements and related trust agreements or annuity Contracts (including any amendments, modifications or supplements thereto); (ii) all summary plan descriptions and material modifications thereto; (iii) the three (3) most recent Forms 5500, if applicable, and annual report, including all schedules thereto; (iv) the most recent annual and periodic accounting of plan assets; (v) the three (3) most recent nondiscrimination testing reports; (vi) the most recent determination letter received from the IRS, if any; (vii) the most recent actuarial valuation; and (viii) all material written communications between the Purchaser or any Subsidiary or any Purchaser Benefit Plan and any Governmental Authority and relating to a Purchaser Benefit Plan within six (6) years preceding the date of this Agreement.
(iv) With respect to each Purchaser Benefit Plan: (i) such Purchaser Benefit Plan has been administered and enforced in all material respects in accordance with its terms, the Code and ERISA; (ii) neither the Purchaser nor any Subsidiary nor any employee, officer or director thereof that is a fiduciary (under ERISA) with respect to such Purchaser Benefit Plan has breached any of its fiduciary responsibilities, obligations or duties imposed on it by ERISA; (iii) no Action is pending or threatened in writing (other than routine claims for benefits arising in the ordinary course aggregate, have not had and would not reasonably be expected to have REIT I Material Adverse Effect, none of administration); (iv) nothing has occurred with respect to REIT I, any Purchaser Benefit Plan that has subjected the Purchaser or any Subsidiary to any material penalty under Section 502 of ERISA or Section 4975 of the Code; and (v) all contributions and premiums due through the Closing Date have been made in all material respects as required under ERISA or have been fully accrued in all material respects on the Purchaser Financials.
(v) No Purchaser Benefit Plan is, and neither the Purchaser or any REIT I Subsidiary or any of their respective ERISA Affiliates sponsorshas incurred or could incur any obligation or liability with respect to or under any Benefit Plan or other employee benefit plan, maintainsprogram or arrangement (including any agreement, contributes program, policy or other arrangement under which any current or former employee, director or consultant has any present or future right to benefits) which has created or will create any obligation with respect to, is required or has resulted in or will result in any liability to contribute NNN REIT, Merger Sub or any of their respective subsidiaries.
(c) None of REIT I, any REIT I Subsidiaries or any of their respective ERISA Affiliates has ever maintained, contributed to, or participated in, or otherwise has or could reasonably be expected to have any current obligation or contingent Liability under or with respect to, liability in connection with: (i) a “defined benefit pension plan” (as defined in under Section 414(j3(2) of ERISA that is subject to Title IV or Section 302 of ERISA or Section 412 or 4971 of the Code), (ii) a “multiemployer plan” (as defined in Section 3(37) of ERISA), (iii) a “multiple employer welfare arrangement” (as defined in Section 3(40) of ERISA), or (iv) a “multiple employer plan” (as described defined in Section 413(c) of the Code).
(d) No amount that could be received (whether in cash or is otherwise subject to Title IV property or the vesting of ERISA or Section 412 property) as a result of the Code. To Merger or any of the Purchaser’s Knowledge, no Purchaser Benefit Plan will become other transactions contemplated hereby (alone or in combination with any other event) by any Person who is a multiple employer plan with respect to “disqualified individual” (as such term is defined in Treasury Regulation Section 1.280G-1) under any Purchaser Entity immediately after the Closing Date. Neither the Purchaser nor any Subsidiary currently maintains or has ever maintained, or compensation arrangement could be characterized as a “parachute payment” (as such term is required currently or has ever been required to contribute to or otherwise participate in, a multiple employer welfare arrangement or voluntary employees’ beneficiary association as defined in Section 501(c)(9280G(b)(1) of the Code. For purposes of this Agreement, “ERISA Affiliate” means, with respect ).
(e) Neither REIT I nor any REIT I Subsidiary is a party to or has any Person, obligation under any Contract otherwise to compensate any Person for excise taxes payable pursuant to Section 4999 of the Code or entity (whether or not incorporated) that is under common control or treated as one employer under for additional taxes payable pursuant to Section 4001(b)(1) of ERISA or Section 414(b), (c), (m) or (o) 409A of the Code.
(f) Neither REIT I nor any REIT I Subsidiary has, or has ever had, any employees.
Appears in 1 contract
Benefit Plans. (ia) Set forth on Schedule 3.19(a) Buyer has performed all obligations required to be performed by it under, is a true not in default or violation of, and complete list has no knowledge of any default or violation by any other party to, each material Benefit Plan of the Purchaser and its Subsidiaries (eachemployee compensation, a “Purchaser Benefit Plan”). With respect to each Purchaser Benefit Planincentive, there are no funded fringe or benefit obligations for which contributions have not been materially made or properly accrued and there are no material unfunded benefit obligations that have not been accounted for by reserves, or otherwise properly footnoted in accordance with GAAP on the Purchaser Financials. Except as set forth on Schedule 3.19(a), neither the Purchaser nor any Subsidiary or has in the past been a member of a “controlled group” for purposes of Section 414(b), (c), (m) or (o) of the Code other than with the Purchaser or another Subsidiary, nor does the Purchaser or any Subsidiary have any Liability with respect to any collectively-bargained for plans, programs, policies, practices, contracts, agreements, commitments or other arrangements (whether or not subject to the provisions of ERISA.
(ii) Each Purchaser Benefit Plan set forth in a written document and including, without limitation, all material respects is and has been operated in compliance with all applicable Laws in all material respects, including ERISA and the Code. Each Purchaser Benefit Plan which is intended to be “qualified” "employee benefit plans" within the meaning of Section 401(a3(3) of the Code (iERISA) has been determined by the IRS to be so qualified (covering any active or is based on a prototype plan which has received a favorable opinion letter) during the period from its adoption to the date former employee, director or consultant of this Agreement and (ii) is funded through a trust exempt from taxation under Section 501(a) of the Code. To the Knowledge of the PurchaserBuyer, no fact exists which could adversely affect the qualified status of such Purchaser Benefit Plans or the exempt status of such trusts.
(iii) With respect to each Purchaser Benefit Plan, the Purchaser has made available to the Seller accurate and complete copies, if applicable, of: (i) all Purchaser Benefit Plan documents and agreements and related trust agreements or annuity Contracts (including any amendments, modifications or supplements thereto); (ii) all summary plan descriptions and material modifications thereto; (iii) the three (3) most recent Forms 5500, if applicable, and annual report, including all schedules thereto; (iv) the most recent annual and periodic accounting of plan assets; (v) the three (3) most recent nondiscrimination testing reports; (vi) the most recent determination letter received from the IRS, if any; (vii) the most recent actuarial valuation; and (viii) all material written communications between the Purchaser or any Buyer Subsidiary or any Purchaser trade or business (whether or not incorporated) which is a Buyer Affiliate (the "Buyer Employee Benefit Plan Plans"), except for such failures to perform, defaults and any Governmental Authority and relating to violations as would not have a Purchaser Benefit Plan within six (6) years preceding the date of this Agreement.
(iv) With respect to each Purchaser Benefit Plan: (i) Buyer Material Adverse Effect. Each such Purchaser Buyer Employee Benefit Plan has been established, maintained and administered and enforced in all material respects in accordance with its termsterms and with the requirements prescribed by any and all statutes, orders, rules and regulations (foreign or domestic), including but not limited to ERISA and the Code and ERISA; (ii) neither the Purchaser nor any Subsidiary nor any employeeCode, officer or director thereof that is a fiduciary (under ERISA) with respect which are applicable to such Purchaser Buyer Employee Benefit Plan has breached any of its fiduciary responsibilitiesPlans, obligations except for such violations as would not have a Buyer Material Adverse Effect. No suit, action, claim or duties imposed on it by ERISA; other litigation (iii) no Action is pending or threatened in writing (other than routine excluding claims for benefits arising incurred in the ordinary course of administration); (ivBuyer Employee Benefit Plan activities) nothing has occurred been brought, or to the knowledge of Buyer is threatened, against or with respect to any Purchaser such Buyer Employee Benefit Plan that has subjected and there are no audits, inquiries or proceedings pending or, to the Purchaser knowledge of Buyer, threatened by the Internal Revenue Service or any Subsidiary United States Department of Labor with respect to any material penalty under Section 502 of ERISA or Section 4975 of the Code; and (v) all contributions and premiums due through the Closing Date Buyer Employee Benefit Plans that would have been made in all material respects as required under ERISA or have been fully accrued in all material respects on the Purchaser Financialsa Buyer Material Adverse Effect.
(vb) No Purchaser Benefit Plan isNone of Buyer, and neither the Purchaser any Buyer Subsidiary, or any Subsidiary Buyer Affiliate maintains or has at any of their respective ERISA Affiliates sponsorstime ever maintained, maintainsestablished, contributes tosponsored, is required to contribute toparticipated in, or otherwise has or could reasonably be expected contributed to have any current or contingent Liability under or with respect to, a “defined benefit plan” (as defined in Section 414(j) of the Code), a “multiemployer plan” (as defined in Section 3(37) of ERISA) or a “multiple employer plan” (as described in Section 413(c) of the Code) or is otherwise plan subject to Title IV of ERISA or Section 412 of the Code. To the Purchaser’s Knowledge, Code and at no Purchaser Benefit Plan will become a multiple employer plan with respect time has Buyer or any Buyer Subsidiary contributed to any Purchaser Entity immediately after the Closing Date. Neither the Purchaser nor any Subsidiary currently maintains or has ever maintained, or is required currently or has ever been required requested to contribute to or otherwise participate in, a multiple employer welfare arrangement or voluntary employees’ beneficiary association any "multiemployer plan," as such term is defined in ERISA Section 501(c)(93(37) or to any plan described in Section 413 of the Code. For purposes None of this AgreementBuyer, “ERISA Affiliate” means, with respect any Buyer Subsidiary or any officer or director of Buyer or any Buyer Subsidiary is subject to any Personliability or penalty under Section 4975 through 4980B of the Code or Title I of ERISA.
(c) None of the Buyer Employee Benefit Plans promises or provides retiree medical or other retiree welfare benefits to any person except as required by applicable law, and neither Buyer nor any Person Buyer Subsidiary has represented, promised or entity contracted (whether in oral or not incorporatedwritten form) that is under common control to provide such retiree benefits to any employee, former employee, director, consultant or treated as one employer under Section 4001(b)(1) of ERISA or Section 414(b)other person, (c), (m) or (o) of except to the Codeextent required by statute.
Appears in 1 contract
Samples: Agreement and Plan of Merger and Reorganization (Spectrian Corp /Ca/)
Benefit Plans. (a) Section 3.18(a) of the Seller Disclosure Schedules sets forth a list, as of the date of this Agreement, of (i) Set forth on Schedule 3.19(a) is a true and complete list of 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 the Purchaser and its Subsidiaries contributes.
(each, a “Purchaser Benefit Plan”). b) With respect to each Purchaser material Benefit Plan, Seller has made available to Purchaser (i) the summary plan description (or the plan document if there are no is not a summary plan description for any such plan); (ii) all insurance Contracts and similar instruments with respect to each such funded benefit obligations for which contributions have or 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 been materially made exist any failure to meet the “minimum funding standard” of Section 412 of the Code or properly accrued and there are no material unfunded benefit obligations that have Section 302 of ERISA (whether or not been accounted for by reserves, or otherwise properly footnoted in accordance with GAAP on the Purchaser Financials. Except as set forth on Schedule 3.19(awaived), neither the Purchaser nor any Subsidiary or has (ii) such plan is not in the past been a member of a “controlled groupat-risk” status for purposes of Section 414(b), (c), (m) or (o) 430 of the Code other than with and (iii) the Purchaser PBGC has not instituted proceedings to terminate any such plan. Except as would not reasonably be expected to be material to the Business, taken as a whole, or another Subsidiaryadversely affect the qualified status of each such Benefit Plan, nor does the Purchaser or any Subsidiary have any Liability with respect to any collectively-bargained for plans, whether or not Benefit Plan that is subject to the provisions Title IV of ERISA, (i) no reportable event within the meaning of Section 4043(c) of ERISA 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.
(iid) 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 such Multiemployer Plan and Multiple Employer Plan under any such plan, applicable collective bargaining agreement or applicable Law.
(e) Each Purchaser Benefit Plan in all material respects is and has been operated in compliance with all applicable Laws in all material respects, including ERISA and the Code. Each Purchaser Benefit Plan which that is intended to be “qualified” within the meaning of qualified under Section 401(a) of the Code (i) has been determined by is the IRS to be so qualified (or is based on a prototype plan which has received subject of a favorable opinion letter) during the period from its adoption to the date of this Agreement and (ii) is funded through a trust exempt from taxation under Section 501(a) of the Code. To the Knowledge of the Purchaser, no fact exists which could adversely affect the qualified status of such Purchaser Benefit Plans or the exempt status of such trusts.
(iii) With respect to each Purchaser Benefit Plan, the Purchaser has made available to the Seller accurate and complete copies, if applicable, of: (i) all Purchaser Benefit Plan documents and agreements and related trust agreements or annuity Contracts (including any amendments, modifications or supplements thereto); (ii) all summary plan descriptions and material modifications thereto; (iii) the three (3) most recent Forms 5500, if applicable, and annual report, including all schedules thereto; (iv) the most recent annual and periodic accounting of plan assets; (v) the three (3) most recent nondiscrimination testing reports; (vi) the most recent determination letter received or opinion letter from the IRS, if any; (vii) the most recent actuarial valuation; and (viii) all material written communications between the Purchaser there are no existing circumstances or any Subsidiary or any Purchaser Benefit Plan and any Governmental Authority and relating events that would reasonably be expected to cause a Purchaser Benefit Plan within six (6) years preceding the date loss of this Agreement.
(iv) With respect to qualified status of each Purchaser such Benefit Plan: (i) such Purchaser . All Benefit Plan has Plans comply and have been administered and enforced operated in all material respects in accordance with its termstheir terms and the requirements of Law applicable thereto. There are no material actions, the Code and ERISA; (ii) neither the Purchaser nor any Subsidiary nor any employee, officer suits or director thereof that is a fiduciary (under ERISA) with respect to such Purchaser Benefit Plan has breached any of its fiduciary responsibilities, obligations or duties imposed on it by ERISA; (iii) no Action is pending or threatened in writing claims (other than routine claims for benefits arising in benefits) pending or, to the ordinary course Knowledge of administration); (iv) nothing has occurred with respect to any Purchaser Benefit Plan that has subjected the Purchaser or any Subsidiary to any material penalty under Section 502 of ERISA or Section 4975 of the Code; Seller and (v) all contributions and premiums due through the Closing Date have been made in all material respects except as required under ERISA or have been fully accrued in all material respects on the Purchaser Financials.
(v) No Purchaser Benefit Plan is, and neither the Purchaser or any Subsidiary or any of their respective ERISA Affiliates sponsors, maintains, contributes to, is required to contribute to, or otherwise has or could 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 any current been made or contingent Liability under or with respect to, a “defined benefit plan” are accrued in the Business Financial Information.
(as defined in f) Section 414(j3.18(f) of the Code)Seller Disclosure Schedules sets forth each Benefit Plan that provides for post-retirement health, a “multiemployer plan” medical and life insurance benefits for Business Employees (as defined in other than statutory liability for providing group health plan continuation coverage under Part 6 of Subtitle B of Title I of ERISA and Section 3(37) of ERISA) or a “multiple employer plan” (as described in Section 413(c) 4980B of the CodeCode or applicable Law).
(g) or is otherwise subject to Title IV Neither the execution of ERISA or Section 412 this Agreement nor the consummation of the Code. To the Purchaser’s KnowledgeTransaction will (i) result in any material payment becoming due to a Business Employee under a Benefit Plan, no Purchaser (ii) materially increase any benefits payable to a Business Employee under a Benefit Plan will become a multiple employer plan with respect to any Purchaser Entity immediately after or (iii) result in the Closing Date. Neither the Purchaser nor any Subsidiary currently maintains or has ever maintained, or is required currently or has ever been required to contribute to or otherwise participate in, a multiple employer welfare arrangement or voluntary employees’ beneficiary association as defined in Section 501(c)(9) acceleration of the Code. For purposes time of this Agreement, “ERISA Affiliate” means, with respect to any Person, any Person payment or entity (whether or not incorporated) that is vesting of benefits of a Business Employee under common control or treated as one employer under Section 4001(b)(1) of ERISA or Section 414(b), (c), (m) or (o) of the Codea Benefit Plan.
Appears in 1 contract
Benefit Plans. (a) Commencing at 12:00 a.m. Houston, Texas time on the calendar day immediately following any Closing Date and continuing for a period of at least 12 months thereafter (or such longer period as required by applicable Law), Purchaser shall (i) Set forth continue (or cause its applicable Affiliate to continue) to sponsor and maintain each Sponsored Plan on Schedule 3.19(a) is a true and complete list of each material Benefit Plan of substantially the Purchaser and its Subsidiaries (each, a “Purchaser Benefit Plan”). With respect to each Purchaser Benefit Plan, there are no funded benefit obligations for which contributions have not been materially made or properly accrued and there are no material unfunded benefit obligations that have not been accounted for by reserves, or otherwise properly footnoted same terms as in accordance with GAAP on the Purchaser Financials. Except as set forth on Schedule 3.19(a), neither the Purchaser nor any Subsidiary or has in the past been a member of a “controlled group” for purposes of Section 414(b), (c), (m) or (o) of the Code other than with the Purchaser or another Subsidiary, nor does the Purchaser or any Subsidiary have any Liability with respect to any collectively-bargained for plans, whether or not subject effect immediately prior to the provisions of ERISA.
applicable Closing, and/or (ii) Each Purchaser Benefit Plan in all material respects is cover the Transferring Employees (and, to the extent appropriate, their dependents and has been operated in compliance with all applicable Laws in all material respectsother beneficiaries) under its existing employee benefit or fringe benefit plans, including ERISA and the Code. Each Purchaser Benefit Plan which is intended to be “qualified” within the meaning funds or programs; or (iii) provide any combination of Section 401(a) of the Code clauses (i) has been determined by the IRS to be so qualified (or is based on a prototype plan which has received a favorable opinion letter) during the period from its adoption to the date of this Agreement and (ii) is funded through a trust exempt from taxation above, whichever approach provides the Transferring Employees with benefits that, in the aggregate, are substantially the same as the benefits provided to the Transferring Employee immediately prior to the applicable Closing Date (provided that Purchaser or its Designated Affiliates shall not be required to recognize all service accrued by each Transferring Employee whilst employed by Seller or any of its Affiliates (other than for those Transferring Employees which continue to be employed by the Joint Venture) nor shall it be required to offer any profit sharing, stock bonus, stock option, stock purchase, phantom or stock equivalent type bonus, except in each case to the extent required by applicable Law), and in any event, as required by applicable Law. The Parties agree that nothing in this Section 10.2(a) modifies Section 5.16 and Section 10.1(f) 428928/HOUDMS
(b) Notwithstanding any other provision in this Agreement to the contrary, except as otherwise provided under Section 501(a) any Transition Services Agreement between the Parties, as of the Code. To the Knowledge of the Purchaserapplicable Closing Date, no fact exists which could adversely affect the qualified status of such Purchaser Benefit Plans Transferring Employee (or the exempt status of such trustshis or her beneficiary or dependent) shall accrue additional benefits under, remain covered by, or participate in any Seller Plan or any other employee benefits plan, program or arrangement sponsored, maintained or established by Seller or its Affiliates that are not Sponsored Plans.
(iiic) With respect to each Purchaser Benefit Plan, the Purchaser has made available to the Seller accurate and complete copies, if applicable, of: (i) all Purchaser Benefit Plan documents and agreements and related trust agreements or annuity Contracts (including Notwithstanding any amendments, modifications or supplements thereto); (ii) all summary plan descriptions and material modifications thereto; (iii) the three (3) most recent Forms 5500, if applicable, and annual report, including all schedules thereto; (iv) the most recent annual and periodic accounting of plan assets; (v) the three (3) most recent nondiscrimination testing reports; (vi) the most recent determination letter received from the IRS, if any; (vii) the most recent actuarial valuation; and (viii) all material written communications between the Purchaser or any Subsidiary or any Purchaser Benefit Plan and any Governmental Authority and relating to a Purchaser Benefit Plan within six (6) years preceding the date of this Agreement.
(iv) With respect to each Purchaser Benefit Plan: (i) such Purchaser Benefit Plan has been administered and enforced in all material respects in accordance with its terms, the Code and ERISA; (ii) neither the Purchaser nor any Subsidiary nor any employee, officer or director thereof that is a fiduciary (under ERISA) with respect to such Purchaser Benefit Plan has breached any of its fiduciary responsibilities, obligations or duties imposed on it by ERISA; (iii) no Action is pending or threatened in writing (other than routine claims for benefits arising in the ordinary course of administration); (iv) nothing has occurred with respect to any Purchaser Benefit Plan that has subjected the Purchaser or any Subsidiary to any material penalty under Section 502 of ERISA or Section 4975 of the Code; and (v) all contributions and premiums due through the Closing Date have been made in all material respects as required under ERISA or have been fully accrued in all material respects on the Purchaser Financials.
(v) No Purchaser Benefit Plan is, and neither the Purchaser or any Subsidiary or any of their respective ERISA Affiliates sponsors, maintains, contributes to, is required to contribute to, or otherwise has or could reasonably be expected to have any current or contingent Liability under or with respect to, a “defined benefit plan” (as defined in Section 414(j) of the Code), a “multiemployer plan” (as defined in Section 3(37) of ERISA) or a “multiple employer plan” (as described in Section 413(c) of the Code) or is otherwise subject to Title IV of ERISA or Section 412 of the Code. To the Purchaser’s Knowledge, no Purchaser Benefit Plan will become a multiple employer plan with respect to any Purchaser Entity immediately after the Closing Date. Neither the Purchaser nor any Subsidiary currently maintains or has ever maintained, or is required currently or has ever been required to contribute to or otherwise participate in, a multiple employer welfare arrangement or voluntary employees’ beneficiary association as defined in Section 501(c)(9) of the Code. For purposes provision of this Agreement, “ERISA nothing contained in this Agreement, express or implied, is intended to or shall be construed to amend, modify or terminate any Seller Plan or to affect Seller’s, Purchaser’s or each of their Affiliate” means’s ability to amend, with respect to modify or terminate any PersonSeller Plan. The provisions of this Agreement, any Person or entity (whether or not incorporated) that is under common control or treated as one employer under Section 4001(b)(1) of ERISA or Section 414(b)in particular this Article 10, (c), (m) or (o) are for the sole benefit of the CodeParties hereto and their respective Affiliates and are not for the benefit of any Third Party.
Appears in 1 contract
Samples: Sale and Purchase Agreement (Weatherford International PLC)
Benefit Plans. (ia) Set forth on Schedule 3.19(a4.21(a) is a true and complete list of each lists all material Benefit Plan of the Purchaser and its Subsidiaries Plans.
(each, a “Purchaser Benefit Plan”). b) With respect to each Purchaser Benefit Plan, no event has occurred, and there exists no condition or set of circumstances, in connection with which Impact 21 could reasonably be expected to be subject to any liability under any applicable Law, except liability for benefits claims and funding obligations payable in the ordinary course.
(c) Each Benefit Plan conforms to all applicable Law, and its administration complies in all material respects with its terms and all applicable Law.
(d) Except as disclosed in Schedule 4.21(d), with respect to each Benefit Plan, there are no funded benefit obligations for which contributions have not been materially made or properly accrued and there are no material unfunded benefit obligations in addition to ¥836,693,997 that has been accrued on the Unaudited Financial Statements that have not been properly accrued or accounted for by reserves, or otherwise properly footnoted in accordance with GAAP Japanese GAAP, on the Purchaser Financials. Unaudited Financial Statements of Impact 21.
(e) There are no Claims or Liens pending or, to the Knowledge of OK, threatened (other than routine claims for benefits) with respect to any Benefit Plan or against the assets of any Benefit Plan, other than Claims or Liens that would not, individually or in the aggregate, have a material adverse effect on the ability of Impact 21 to perform its obligations in respect of any such Benefit Plan.
(f) The consummation of the transactions contemplated by this Agreement will not entitle any current or former employee to severance pay, unemployment compensation or any similar payment or accelerate the time of payment or vesting, or increase the amount of any compensation due to, or in respect of, any current or former employee.
(g) Except as set forth on Schedule 3.19(a4.21(g), neither no current or former employee of Impact 21 is covered by or entitled to benefits under any benefit plan maintained by, or contributed to by, OK.
(h) Impact 21 does not maintain or contribute to, and has not within the Purchaser nor any Subsidiary preceding six (6) years maintained or contributed to, or has in had during such period the past been a member of a “controlled group” for purposes of Section 414(b)obligation to maintain or contribute to, (c), (m) or (o) of the Code other than with the Purchaser or another Subsidiary, nor does the Purchaser or any Subsidiary may have any Liability with respect to any collectively-bargained Benefit Plan maintained for plans, whether Persons other than current or not subject to the provisions former employees of ERISAImpact 21.
(ii) Each Purchaser Benefit Plan in all material respects is and has been operated in compliance with all applicable Laws in all material respects, including ERISA and the Code. Each Purchaser Benefit Plan which is intended to be “qualified” within the meaning of Section 401(a) of the Code (i) has been determined by the IRS to be so qualified (Impact 21 does not have any obligation or is based on a prototype plan which has received a favorable opinion letter) during the period from its adoption have any direct or indirect Liability with respect to the date provision of this Agreement and (ii) is funded through a trust exempt from taxation under Section 501(a) health or death benefits to or in respect of the Code. To the Knowledge of the Purchaser, no fact exists which could adversely affect the qualified status of such Purchaser Benefit Plans or the exempt status of such trustsformer employees.
(iiij) With Impact 21 does not have any direct or indirect Liability with respect to each Purchaser Benefit Plan, the Purchaser has made available to the Seller accurate and complete copies, if applicable, of: (i) all Purchaser Benefit Plan documents and agreements and related trust agreements accrued vacation days of current or annuity Contracts (including any amendments, modifications or supplements thereto); (ii) all summary plan descriptions and material modifications thereto; (iii) the three (3) most recent Forms 5500, if applicable, and annual report, including all schedules thereto; (iv) the most recent annual and periodic accounting of plan assets; (v) the three (3) most recent nondiscrimination testing reports; (vi) the most recent determination letter received from the IRS, if any; (vii) the most recent actuarial valuation; and (viii) all material written communications between the Purchaser or any Subsidiary or any Purchaser Benefit Plan and any Governmental Authority and relating to a Purchaser Benefit Plan within six (6) years preceding the date of this Agreementformer employees.
(ivk) With respect to each Purchaser Benefit Plan: (i) such Purchaser Benefit Plan Impact 21 has been administered and enforced in all material respects in accordance with its termsno agreements, the Code and ERISA; (ii) neither the Purchaser nor any Subsidiary nor any employee, officer or director thereof that is a fiduciary (under ERISA) with respect to such Purchaser Benefit Plan has breached any of its fiduciary responsibilitiesarrangements, obligations or duties imposed on it by ERISA; (iii) no Action is pending other conventions with, or threatened in writing (to, its employees other than routine claims for benefits arising those that are as set forth in Impact 21’s written work rules and the ordinary course of administrationagreements relating to overtime (saburoku kyote); (iv) nothing has occurred with respect to any Purchaser Benefit Plan that has subjected the Purchaser or any Subsidiary to any material penalty under Section 502 of ERISA or Section 4975 of the Code; and (v) all contributions and premiums due through the Closing Date have been made in all material respects as required under ERISA or have been fully accrued in all material respects on the Purchaser Financials.
(v) No Purchaser Benefit Plan is, and neither the Purchaser or any Subsidiary or any of their respective ERISA Affiliates sponsors, maintains, contributes to, is required to contribute to, or otherwise has or could reasonably be expected to have any current or contingent Liability under or with respect to, a “defined benefit plan” (as defined in Section 414(j) of the Code), a “multiemployer plan” (as defined in Section 3(37) of ERISA) or a “multiple employer plan” (as described in Section 413(c) of the Code) or is otherwise subject to Title IV of ERISA or Section 412 of the Code. To the Purchaser’s Knowledge, no Purchaser Benefit Plan will become a multiple employer plan with respect to any Purchaser Entity immediately after the Closing Date. Neither the Purchaser nor any Subsidiary currently maintains or has ever maintained, or is required currently or has ever been required to contribute to or otherwise participate in, a multiple employer welfare arrangement or voluntary employees’ beneficiary association as defined in Section 501(c)(9) of the Code. For purposes of this Agreement, “ERISA Affiliate” means, with respect to any Person, any Person or entity (whether or not incorporated) that is under common control or treated as one employer under Section 4001(b)(1) of ERISA or Section 414(b), (c), (m) or (o) of the Code.
Appears in 1 contract
Benefit Plans. (i) Set Schedule 3.1(ii) sets forth on Schedule 3.19(a) is a true and complete list of each material the Benefit Plan of the Purchaser and its Subsidiaries (each, a “Purchaser Benefit Plan”). With respect to each Purchaser Benefit Plan, there are no funded benefit obligations for which contributions have not been materially made or properly accrued and there are no material unfunded benefit obligations that have not been accounted for by reserves, or otherwise properly footnoted in accordance with GAAP on the Purchaser Financials. Except as set forth on Schedule 3.19(a), neither the Purchaser nor any Subsidiary or has in the past been a member of a “controlled group” for purposes of Section 414(b), (c), (m) or (o) of the Code other than with the Purchaser or another Subsidiary, nor does the Purchaser or any Subsidiary have any Liability with respect to any collectively-bargained for plans, whether or not subject to the provisions of ERISAPlans.
(ii) Each Purchaser Current, correct and complete copies of all written Benefit Plan in all material respects is and has been operated in compliance with all applicable Laws in all material respectsPlans as amended to date or, including ERISA and the Code. Each Purchaser Benefit Plan which is intended to be “qualified” within the meaning of Section 401(a) where oral, written summaries of the Code (i) has terms thereof, have been determined by the IRS to be so qualified (delivered or is based on a prototype plan which has received a favorable opinion letter) during the period from its adoption made available to the date Buyer together with current and complete copies of this Agreement and all documents (iiincluding, where indicated herein, historical documents) is funded through a trust exempt from taxation under Section 501(a) of relating to the Code. To the Knowledge of the PurchaserBenefit Plans, no fact exists which could adversely affect the qualified status of such Purchaser Benefit Plans or the exempt status of such trustsas amended.
(iii) With Each Benefit Plan is, and has been, established, registered, qualified, administered, funded, and invested, as applicable, in compliance with the terms of such Benefit Plan including the terms of any documents in respect to each Purchaser of, such Benefit Plan, the Purchaser has made available to the Seller accurate all Applicable Laws and complete copiesany agreements, if applicable, of: (i) all Purchaser Benefit Plan documents and agreements and related trust agreements written or annuity Contracts (including any amendments, modifications or supplements thereto); (ii) all summary plan descriptions and material modifications thereto; (iii) the three (3) most recent Forms 5500, if applicable, and annual report, including all schedules thereto; (iv) the most recent annual and periodic accounting of plan assets; (v) the three (3) most recent nondiscrimination testing reports; (vi) the most recent determination letter received from the IRS, if any; (vii) the most recent actuarial valuation; and (viii) all material written communications oral between the Purchaser or any Subsidiary or any Purchaser Benefit Plan Corporation and any Governmental Authority and relating to a Purchaser Benefit Plan within six (6) years preceding the date of this Agreementother party, as applicable.
(iv) With The Corporation has complied with all of its obligations in respect of the Benefit Plans.
(v) Except as disclosed, the Corporation has no formal or informal plan and have made no promise or commitment, whether legally binding or not, to create any additional Benefit Plan or to improve or change the benefits provided under any Benefit Plan.
(vi) Except as expressly provided under this Agreement or as set out in Schedule 3.1(ii), neither the entering into of this Agreement, nor the completion of the transaction contemplated herein will (either alone or in conjunction with any additional or subsequent events) constitute an event under any Benefit Plan that will or may result in any payment (whether severance pay or otherwise), acceleration of payment or vesting of benefits, forgiveness of indebtedness, acceleration or increase in funding obligations, vesting, distribution, restriction of funds, increase or acceleration in benefits or obligation to fund benefits with respect to any Employee of the Corporation.
(vii) All employer and employee payments, contributions or premiums required to be remitted, paid to or in respect of each Purchaser Benefit Plan: (i) such Purchaser Benefit Plan has have been administered and enforced paid or remitted in all material respects a timely fashion in accordance with its termsterms and all Applicable Laws. Other than amounts which may be payable as contemplated by the Authorized Pre-Closing Transactions, or premiums not yet due and payable by the Code and ERISA; (ii) neither Corporation in the Purchaser nor ordinary course of business, no taxes, penalties or fees are owing or exigible under or in relation to any Subsidiary nor any employee, officer or director thereof that is a fiduciary (under ERISA) with respect to such Purchaser Benefit Plan by or from the Corporation and there are no liabilities or contingent liabilities of the Corporation in respect of any Person, benefit or compensation plan that has breached any of its fiduciary responsibilitiesbeen discontinued.
(viii) There is no investigation by a Governmental Authority, obligations or duties imposed on it by ERISA; (iii) no Action is pending or threatened in writing Claim (other than routine claims for benefits arising in the ordinary course payment of administration); (ivbenefits) nothing has occurred with respect to pending or threatened involving any Purchaser Benefit Plan that has subjected the Purchaser or any Subsidiary to any material penalty under Section 502 of ERISA or Section 4975 of the Code; and (v) all contributions and premiums due through the Closing Date have been made in all material respects as required under ERISA or have been fully accrued in all material respects on the Purchaser Financials.
(v) No Purchaser Benefit Plan istheir assets, and neither the Purchaser or any Subsidiary or any of their respective ERISA Affiliates sponsors, maintains, contributes to, is required to contribute to, or otherwise has or no facts exist which could reasonably be expected to give rise to any such investigation or Claim (other than routine claims for benefits).
(ix) No Benefit Plan provides pension or retirement benefits except pension benefits which are, and have any current or contingent Liability under or with respect toalways been, provided on a “defined benefit plan” contribution basis only.
(as defined in Section 414(jx) All liabilities of the Code)Corporation (whether accrued, a “multiemployer plan” (as defined absolute, contingent or otherwise) related to the Benefit Plans have been fully and accurately accrued and disclosed, and reported in Section 3(37) of ERISA) or a “multiple employer plan” (as described accordance with Canadian Generally Accepted Accounting Principles in Section 413(c) the financial statements of the Code) Corporation. No changes have occurred or is otherwise subject are expected to Title IV of ERISA or Section 412 occur to any of the Code. To Benefit Plans which would materially affect the Purchaser’s Knowledge, no Purchaser most recent financial statement prepared in respect of the applicable Benefit Plan will become a multiple employer plan and required to be provided pursuant to this Agreement. All bonuses and commission relating to the business of the Corporation and its Employees are accurately reflected in all material respects and have been appropriately accrued in the Books and Records of the Corporation, in accordance with good bookkeeping practices and, where applicable, Generally Accepted Accounting Principles. The Corporation does not accrue vacation pay on its Books and Records notwithstanding that the same may not amount to good bookkeeping practices and may not be in accordance with Generally Accepted Accounting Principles. The vacation policy of the Corporation with respect to any Purchaser Entity immediately after unused vacation time applicable to the Closing Date. Neither Employees is set forth in Schedule 3.1(ii).
(xi) There are no Proceedings pending or, to the Purchaser nor any Subsidiary currently maintains or has ever maintained, or is required currently or has ever been required to contribute to or otherwise participate in, a multiple employer welfare arrangement or voluntary employees’ beneficiary association as defined in Section 501(c)(9) Knowledge of the Code. For purposes of this AgreementSellers, “ERISA Affiliate” means, threatened with respect to the Benefit Plans against the Corporation or the insurer, under such Benefit Plans, where applicable, other than claims for benefits in the ordinary course. No order has been made or notice given pursuant to any PersonApplicable Law requiring (or proposing to require) the Corporation to take (or refrain from taking) any action in respect of any Benefit Plan.
(xii) The Benefit Plan applicable to the Employees of the Corporation is part of a group plan which applies to the Employees of Arrow Pharmaceuticals Inc. and Cobalt as well. Save as aforesaid, there are no entities, other than the Corporation, Arrow Pharmaceuticals Inc. or Cobalt, participating in any Person Benefit Plan.
(xiii) All Employee data necessary to administer each Benefit Plan is in the possession of Cobalt who administers the Benefit Plan of the Corporation on behalf of the Corporation under the Services and Cost Sharing Agreement, which data is in a form which is sufficient for the proper administration of the Benefit Plan in accordance with its terms and all Applicable Laws and to the Knowledge of the Sellers such data is complete and correct and which data will be provided to the Corporation at the Closing Time.
(xiv) None of the Benefit Plans provide benefits beyond retirement or entity other termination of service to Employees or former employees or to the beneficiaries or dependants of such employees.
(whether xv) No Benefit Plan provides benefits to any individual who is not an Employee, officer or director of the Corporation or the dependents or other beneficiaries of any such Employee, officer or director.
(xvi) Save as contemplated above, the Corporation does not incorporatedsponsor, administer or contribute to a multi-employer plan.
(xvii) that Nothing has been done or omitted to be done by the Corporation which could make any policy or insurance contract void or voidable. None of the Benefit Plans, or any insurance contact relating thereto, require or permit a retroactive increase in premiums or payments due under, or require additional premiums or payments on termination of the Benefit Plan, or any insurance contact relating thereto. The level of insurance reserves under each insured Benefit Plan is under common control or treated reasonable and sufficient to provide for all incurred but unreported claims.
(xviii) Except as one employer under Section 4001(b)(1) of ERISA or Section 414(bset forth in Schedule 3.1(ii), (c), (m) or (o) the execution of this Agreement and the consummation of the Codetransactions contemplated hereby will not cause the payment or acceleration of any benefit or amount payable under any Benefit Plan or change in control agreement between the Corporation and any Employee, director or officer.
Appears in 1 contract
Benefit Plans. (ia) Set forth on Part 3.21 of the Company Disclosure Schedule 3.19(a) is contains a true and complete list of each material Benefit Plan stock option, stock purchase, stock ownership, stock appreciation right, phantom stock, life, health, accident or other insurance, bonus, deferred or incentive compensation, severance or separation, profit-sharing, retirement, leave of absence, layoff, vacation, day or dependent care, legal services, cafeteria, disability or other benefit plan, practice, policy or arrangement of any kind, written or oral, provided for the Purchaser and its Subsidiaries Company's employees (each, a “Purchaser Benefit an "Employee Plan”" and, collectively, the "Employee Plans"). With respect For purposes of this Section 3.21, the term "Employee Plan" also includes but is not limited to each Purchaser Benefit Plan, there are no funded benefit obligations for which contributions have not been materially made all present (including those terminated or properly accrued and there are no material unfunded benefit obligations that have not been accounted for by reserves, or otherwise properly footnoted in accordance with GAAP on the Purchaser Financials. Except as set forth on Schedule 3.19(a), neither the Purchaser nor any Subsidiary or has in transferred within the past been a member of a “controlled group” for purposes of Section 414(b), (c), (mtwo years) plans involving the Company providing any benefits to any current or (o) former employee of the Code other than with the Purchaser or another Subsidiary, nor does the Purchaser or any Subsidiary have any Liability with respect to any collectively-bargained for plans, whether or not Company which are subject to the provisions Employee Retirement Income Security Act of 1974, as amended ("ERISA").
(iib) Each Purchaser Benefit Plan in all material respects Neither the Company nor any other person or entity which together with the Company would be considered a single employer under Section 4001(b)(1) of ERISA is and or has been operated in compliance with all applicable Laws in all material respects, including ERISA and the Code. Each Purchaser Benefit Plan which is intended a party to be “qualified” within the meaning of Section 401(a) of the Code (i) or has been determined any employees who are or were covered by the IRS to be so qualified (or is based on a prototype plan which has received a favorable opinion letter) during the period from its adoption to the date of this Agreement and (ii) is funded through a trust exempt from taxation under Section 501(a) of the Code. To the Knowledge of the Purchaser, no fact exists which could adversely affect the qualified status of such Purchaser Benefit Plans or the exempt status of such trusts.
(iii) With respect to each Purchaser Benefit Plan, the Purchaser has made available to the Seller accurate and complete copies, if applicable, of: (i) all Purchaser Benefit Plan documents and agreements and related trust agreements or annuity Contracts (including any amendments, modifications or supplements thereto); (ii) all summary plan descriptions and material modifications thereto; (iii) the three (3) most recent Forms 5500, if applicable, and annual report, including all schedules thereto; (iv) the most recent annual and periodic accounting of plan assets; (v) the three (3) most recent nondiscrimination testing reports; (vi) the most recent determination letter received from the IRS, if any; (vii) the most recent actuarial valuation; and (viii) all material written communications between the Purchaser or any Subsidiary or any Purchaser Benefit Plan and any Governmental Authority and relating to a Purchaser Benefit Plan within six (6) years preceding the date of this Agreement.
(iv) With respect to each Purchaser Benefit Plan: (i) such Purchaser Benefit Plan has been administered and enforced in all material respects in accordance with its terms, the Code and ERISA; (ii) neither the Purchaser nor any Subsidiary nor any employee, officer or director thereof that is a fiduciary (under ERISA) with respect to such Purchaser Benefit Plan has breached any of its fiduciary responsibilities, obligations or duties imposed on it by ERISA; (iii) no Action is pending or threatened in writing (other than routine claims for benefits arising in the ordinary course of administration); (iv) nothing has occurred with respect to any Purchaser Benefit Plan that has subjected the Purchaser or any Subsidiary to any material penalty under Section 502 of ERISA or Section 4975 of the Code; and (v) all contributions and premiums due through the Closing Date have been made in all material respects as required under ERISA or have been fully accrued in all material respects on the Purchaser Financials.
(v) No Purchaser Benefit Plan is, and neither the Purchaser or any Subsidiary or any of their respective ERISA Affiliates sponsors, maintains, contributes to, is required to contribute to, or otherwise has or could reasonably be expected to have any current or contingent Liability under or with respect to, a “defined benefit plan” (plan as defined in Section 414(j3(35) of the Code), a “ERISA or any multiemployer plan” (plan as defined in Section 3(37) of ERISA.
(c) or a “multiple employer plan” Each Employee Plan is now, and has always been, established, maintained and operated in all material respects in accordance with all applicable laws (as described in Section 413(c) of including but not limited to ERISA and the Code, and regulations thereunder) or is otherwise subject to Title IV of ERISA or Section 412 of and in accordance with the Codeplan documents. To the Purchaser’s Knowledge, no Purchaser Benefit Plan will become a multiple employer plan All communications with respect to any Purchaser Entity immediately after Employee Plan by any person acting or purporting to act on behalf of the Closing DateCompany (including the members of any plan committee, all plan fiduciaries, plan administrators, the Company and the Company's employees) accurately reflect, and have always accurately reflected, in all material respects the documents and operations of any Employee Plan. Neither the Purchaser nor There is no unfunded liability for vested or nonvested benefits under any Subsidiary currently maintains or has ever maintainedEmployee Plan. All material reports, or is required currently or has ever been forms and other documents required to contribute to or otherwise participate in, a multiple employer welfare arrangement or voluntary employees’ beneficiary association as defined in Section 501(c)(9) of the Code. For purposes of this Agreement, “ERISA Affiliate” means, be filed with any governmental entity with respect to any PersonEmployee Plan have been timely filed and are accurate. There is no pending or, any Person or entity (whether or not incorporated) that is under common control or treated as one employer under Section 4001(b)(1) of ERISA or Section 414(b), (c), (m) or (o) to the Knowledge of the CodeCompany, Threatened litigation or arbitration concerning or involving any Employee Plan by any person with respect to such Employee Plan.
(d) No complaints, investigations or audits by any governmental entity have been filed or commenced or, to the Knowledge of the Company, have been Threatened with respect to any Employee Plan.
Appears in 1 contract
Samples: Merger Agreement (Immersion Corp)
Benefit Plans. (a) Each of the Parent and the Buyer agrees to cause the Transferred Companies (i) Set forth on Schedule 3.19(a) is to maintain for a true and complete list period of each material Benefit Plan of one year after the Purchaser and its Subsidiaries (each, a “Purchaser Benefit Plan”). With respect to each Purchaser Benefit Plan, there are no funded benefit obligations for which contributions have not been materially made or properly accrued and there are no material unfunded benefit obligations that have not been accounted for by reserves, or otherwise properly footnoted Closing the Assumed Plans in accordance with GAAP effect on the Purchaser Financials. Except as set forth on Schedule 3.19(a), neither the Purchaser nor any Subsidiary date of this Agreement or has in the past been a member of a “controlled group” for purposes of Section 414(b), (c), (m) or (o) of the Code other than with the Purchaser or another Subsidiary, nor does the Purchaser or any Subsidiary have any Liability with respect to any collectively-bargained for plans, whether or not subject to the provisions of ERISA.
(ii) Each Purchaser Benefit Plan in all material respects is and has been operated in compliance with all applicable Laws in all material respects, including ERISA and the Code. Each Purchaser Benefit Plan which is intended to be “qualified” within the meaning of Section 401(a) of the Code (i) has been determined by the IRS to be so qualified (or is based on a prototype plan which has received a favorable opinion letter) during the period from its adoption binding obligations were entered into prior to the date of this Agreement and Agreement, or (ii) is funded through a trust exempt from taxation under Section 501(ato provide benefits (other than equity-based plans) to each current employee of the Code. To Transferred Companies that are not materially less favorable in the Knowledge of the Purchaser, no fact exists which could adversely affect the qualified status of aggregate to such Purchaser Benefit Plans or the exempt status of employees than those benefits in effect for such trusts.
(iii) With respect to each Purchaser Benefit Plan, the Purchaser has made available to the Seller accurate and complete copies, if applicable, of: (i) all Purchaser Benefit Plan documents and agreements and related trust agreements or annuity Contracts (including any amendments, modifications or supplements thereto); (ii) all summary plan descriptions and material modifications thereto; (iii) the three (3) most recent Forms 5500, if applicable, and annual report, including all schedules thereto; (iv) the most recent annual and periodic accounting of plan assets; (v) the three (3) most recent nondiscrimination testing reports; (vi) the most recent determination letter received from the IRS, if any; (vii) the most recent actuarial valuation; and (viii) all material written communications between the Purchaser or any Subsidiary or any Purchaser Benefit Plan and any Governmental Authority and relating to a Purchaser Benefit Plan within six (6) years preceding employees on the date of this Agreement, or (iii) in relation to each employee who is a member of or participant in a foreign plan, to provide benefits which are equal in value to the benefits attributable under applicable law to that employee under such foreign plan.
(ivb) In addition to the agreement set forth in Section 4.13(a), from and after the Closing, the Transferred Companies shall honor in accordance with their respective terms (as in effect on the date of this Agreement), all of the Transferred Companies' employment, severance and termination agreements, plans and policies, including any change in control provisions contained therein.
(c) With respect to each Purchaser Benefit Plan: (i) such Purchaser Benefit Plan has been administered and enforced in all material respects in accordance with its terms, the Code and ERISA; (ii) neither the Purchaser nor any Subsidiary nor any employee, officer or director thereof that is a fiduciary (under ERISA) with respect to such Purchaser Benefit Plan has breached any of its fiduciary responsibilities, obligations or duties imposed on it by ERISA; (iii) no Action is pending or threatened in writing (other than routine claims for benefits arising in the ordinary course of administration); (iv) nothing has occurred with respect to any Purchaser Benefit Plan that has subjected the Purchaser or any Subsidiary to any material penalty under Section 502 of ERISA or Section 4975 of the Code; and (v) all contributions and premiums due through the Closing Date have been made in all material respects as required under ERISA or have been fully accrued in all material respects on the Purchaser Financials.
(v) No Purchaser Benefit Plan is, and neither the Purchaser or any Subsidiary or any of their respective ERISA Affiliates sponsors, maintains, contributes to, is required to contribute to, or otherwise has or could reasonably be expected to have any current or contingent Liability under or with respect to, a “defined "employee benefit plan” (", as defined in Section 414(j) of the Code), a “multiemployer plan” (as defined in Section 3(373(3) of ERISA, maintained by any Transferred Company (including any severance plan), for all purposes, including determining eligibility to participate and vesting, service with any such Transferred Company shall not be interrupted by, and shall continue after, the Closing; provided, -------- however, that such service need not be recognized to the extent that such ------- recognition would result in any duplication of benefits.
(d) or a “multiple employer plan” (as described in Section 413(c) of the Code) or is otherwise subject to Title IV of ERISA or Section 412 of the Code. To the Purchaser’s Knowledge, no Purchaser Benefit Plan will become a multiple employer plan Buyer shall assume all COBRA responsibilities with respect to any Purchaser Entity immediately after the Closing Date. Neither the Purchaser nor any Subsidiary currently maintains or has ever maintainedcurrent and former Employees and their qualified beneficiaries, or is including but not limited to continuation coverage and required currently or has ever been required to contribute to or otherwise participate in, a multiple employer welfare arrangement or voluntary employees’ beneficiary association as defined in Section 501(c)(9) of the Code. For purposes of this Agreement, “ERISA Affiliate” meansnotices, with respect to any Personall current and former Employees and their qualified beneficiaries who experience a qualifying event prior to the Closing Date.
(e) On or prior to the Closing Date, any Person or entity (whether or not incorporated) that is under common control or treated as one employer under Section 4001(b)(1) of ERISA or Section 414(b), (c), (m) or (o) Seller shall take all actions reasonably necessary and appropriate to become the sole sponsor of the CodeEnterprise Solutions 401(k) Plan (the "401(k) Plan") and to remove any Transferred Company as a sponsoring employer of the 401(k) Plan; provided that Buyer shall take all actions reasonably necessary to assist Seller by providing records and other information to Seller as may be reasonably necessary for Seller to administer such 401(k) Plan, including without limitation, information necessary to complete any financial audit of the Plan, make distributions to Participants or former Participants, and make filings with governmental authorities.
(f) Seller shall take all actions reasonably necessary to facilitate the spin-off of all flexible spending account balances from Seller's medical and dependent care reimbursement accounts with respect to employees of the Transferred Companies and shall provide such records as are reasonably required in connection therewith; provided that Buyer shall take all actions reasonably necessary to establish a plan to which such accounts shall be transferred.
Appears in 1 contract
Samples: Stock Purchase Agreement (Renaissance Worldwide Inc)
Benefit Plans. (a) Seller has established the following funds to provide for the payment of retirement benefits and gratuity benefits to the Business Employees:
(i) Set forth on Schedule 3.19(a) is a true contributory provident fund pursuant to the Employees’ Provident Funds and complete list Miscellaneous Provisions Act, 1952 to provide for the payment of each material Benefit Plan of provident fund benefits to the Purchaser Business Employees and its Subsidiaries other employees (each, a the “Purchaser Benefit PlanProvident Fund”). With respect to each Purchaser Benefit Plan, there are no funded benefit obligations for which contributions have not been materially made or properly accrued and there are no material unfunded benefit obligations that have not been accounted for by reserves, or otherwise properly footnoted in accordance with GAAP on the Purchaser Financials. Except as set forth on Schedule 3.19(a), neither the Purchaser nor any Subsidiary or has in the past been a member of a “controlled group” for purposes of Section 414(b), (c), (m) or (o) of the Code other than with the Purchaser or another Subsidiary, nor does the Purchaser or any Subsidiary have any Liability with respect to any collectively-bargained for plans, whether or not subject to the provisions of ERISA.;
(ii) Each Purchaser Benefit Plan in all material respects is and has been operated in compliance with all applicable Laws in all material respects, including ERISA and a superannuation fund registered under the Code. Each Purchaser Benefit Plan which is intended to be “qualified” within the meaning of Section 401(a) provisions of the Code Tax Act to provide for the payment of superannuation benefits to its Business Employees and other employees who are covered under such scheme (i) has been determined by the IRS to be so qualified (or is based on a prototype plan which has received a favorable opinion letter) during the period from its adoption to the date of this Agreement and (ii) is funded through a trust exempt from taxation under Section 501(a) of the Code. To the Knowledge of the Purchaser, no fact exists which could adversely affect the qualified status of such Purchaser Benefit Plans or the exempt status of such trusts.“Superannuation Fund”); and
(iii) With respect to each Purchaser Benefit Plan, the Purchaser has made available a gratuity fund pursuant to the Seller accurate Payment of Xxxxxxxx Xxx, 0000, for the payment of gratuity benefits to its Business Employees and complete copies, if applicable, of: other employees (i) all Purchaser Benefit Plan documents and agreements and related trust agreements or annuity Contracts (including any amendments, modifications or supplements theretothe “Gratuity Fund”); (ii) all summary plan descriptions and material modifications thereto; (iii) the three (3) most recent Forms 5500, if applicable, and annual report, including all schedules thereto; (iv) the most recent annual and periodic accounting of plan assets; (v) the three (3) most recent nondiscrimination testing reports; (vi) the most recent determination letter received from the IRS, if any; (vii) the most recent actuarial valuation; and (viii) all material written communications between the Purchaser or any Subsidiary or any Purchaser Benefit Plan and any Governmental Authority and relating to a Purchaser Benefit Plan within six (6) years preceding the date of this Agreement.
(ivb) With respect Prior to each Purchaser Benefit Plan: (i) such Purchaser Benefit Plan has been administered and enforced in the Closing Date, Seller shall make all material respects in accordance with its termscontributions required to be made to the Provident Fund, the Code Superannuation Fund and ERISA; the Gratuity Fund (ii) neither the Purchaser nor any Subsidiary nor any employee, officer or director thereof that is a fiduciary (under ERISA“Funds”) with respect to the Business Employees by applicable Law and the terms of such Purchaser Benefit Plan has breached any of its fiduciary responsibilities, obligations or duties imposed on it by ERISA; (iii) no Action is pending or threatened in writing (other than routine claims for benefits arising Funds in the ordinary course of administration); (iv) nothing has occurred period prior to the Closing, and shall pay all premiums and any other amounts due or payable to the Funds with respect to any Purchaser Benefit Plan the Business Employees so as to ensure that has subjected all the Funds are fully funded as of the Closing in accordance with Section 8.3(b), and no payment, contribution or premium is required to be paid to the Funds with respect to the Business Employees for the period prior to the Closing.
(c) Seller and its Affiliates shall provide the statutory auditor of Seller with all reasonable documentation and information requested by the statutory auditor in the preparation of the certificate required pursuant to Section 4.2(a)(xiii). Purchaser or any Subsidiary representative or professional advisor of Purchaser may, at Purchaser’s sole cost and expense and during normal working hours, examine the work papers and the methodology employed by the statutory auditor of Seller with respect to any material penalty under Section 502 of ERISA or Section 4975 the preparation of the Code; and (v) all contributions and premiums due through the Closing Date have been made in all material respects as required under ERISA or have been fully accrued in all material respects on the Purchaser Financialscertificate.
(vd) No Purchaser Benefit Plan is, Seller and neither its Affiliates shall provide the Purchaser or any Subsidiary or any of their respective ERISA Affiliates sponsors, maintains, contributes to, is required actuary selected pursuant to contribute to, or otherwise has or could reasonably be expected to have any current or contingent Liability under or Section 8.3(a) with respect to, a “defined benefit plan” (as defined all reasonable documentation and information requested by such actuary in Section 414(j) the preparation of the Codeactuarial valuation report required pursuant to Section 4.2(a)(xiv), a “multiemployer plan” (as defined in Section 3(37) of ERISA) or a “multiple employer plan” (as described in Section 413(c) of the Code) or is otherwise subject to Title IV of ERISA or Section 412 of the Code. To the Purchaser’s Knowledge, no Purchaser Benefit Plan will become a multiple employer plan with respect to any Purchaser Entity immediately after the Closing Date. Neither the Purchaser nor any Subsidiary currently maintains or has ever maintained, or is required currently or has ever been required to contribute to or otherwise participate in, a multiple employer welfare arrangement or voluntary employees’ beneficiary association as defined in Section 501(c)(9) of the Code. For purposes of this Agreement, “ERISA Affiliate” means, with respect to any Person, any Person or entity (whether or not incorporated) that is under common control or treated as one employer under Section 4001(b)(1) of ERISA or Section 414(b), (c), (m) or (o) of the Code.
Appears in 1 contract
Benefit Plans. (ia) Set Section 4.13(a) of the Transferors Disclosure Schedules sets forth on Schedule 3.19(a) is a true correct and complete list of each material Benefit Plan (i) all “employee benefit plans” (as defined in Section 3(3) of the Purchaser and its Subsidiaries (each, a “Purchaser Benefit Plan”). With respect to each Purchaser Benefit Plan, there are no funded benefit obligations for which contributions have not been materially made or properly accrued and there are no material unfunded benefit obligations that have not been accounted for by reserves, or otherwise properly footnoted in accordance with GAAP on the Purchaser Financials. Except as set forth on Schedule 3.19(a), neither the Purchaser nor any Subsidiary or has in the past been a member of a “controlled group” for purposes of Section 414(bERISA), (c)ii) all other material employee benefit plans, policies, agreements or arrangements, (miii) all employment, individual consulting or other compensation agreements or bonus or other incentive compensation, stock purchase, equity or equity-based compensation, deferred compensation, retention, change in control, severance, pension or profit sharing plans, policies, agreements and arrangements and (oiv) of the Code all other than with the Purchaser material fringe benefit, perquisite, educational assistance, salary continuation and retirement plans, policies, agreement or another Subsidiaryarrangements, nor does the Purchaser or any Subsidiary have any Liability with respect to any collectively-bargained for plansin each case, whether or not subject to ERISA, sponsored, maintained or contributed to, or required to be contributed to, by the provisions Transferors, or any of ERISAtheir respective Subsidiaries or ERISA Affiliates, with respect to any Property Management Employee or pursuant to which any such Property Management Employee could be eligible to receive a benefit or payment or with respect to which any Transferor has or could have any direct or indirect obligation or Liability, contingent or otherwise (collectively, the “Existing Transferors Benefit Plans”).
(iib) Each Purchaser The Existing Transferors Benefit Plan in all material respects is Plans have been established, administered and has been operated in compliance with all applicable Laws maintained, in all material respects, including ERISA in accordance with their terms and with all applicable provisions of ERISA, the CodeCode and other applicable Laws. Each Purchaser Existing Transferors Benefit Plan which that is intended to be “qualified” within the meaning of tax qualified under Section 401(a) of the Code (i) has been determined by the IRS to be so qualified (received or is based on a prototype plan which has received covered by a favorable determination or opinion letter) during the period from its adoption to the date of this Agreement and (ii) is funded through a trust exempt from taxation under Section 501(a) of the Code. To the Knowledge of the Purchaser, no fact exists which could adversely affect the qualified status of such Purchaser Benefit Plans or the exempt status of such trusts.
(iii) With respect to each Purchaser Benefit Plan, the Purchaser has made available to the Seller accurate and complete copies, if applicable, of: (i) all Purchaser Benefit Plan documents and agreements and related trust agreements or annuity Contracts (including any amendments, modifications or supplements thereto); (ii) all summary plan descriptions and material modifications thereto; (iii) the three (3) most recent Forms 5500, if applicable, and annual report, including all schedules thereto; (iv) the most recent annual and periodic accounting of plan assets; (v) the three (3) most recent nondiscrimination testing reports; (vi) the most recent determination letter received from the IRS, if any; (vii) the most recent actuarial valuation; and (viii) all material written communications between the Purchaser or any Subsidiary or any Purchaser Benefit Plan and any Governmental Authority trusts intended to be exempt from federal income taxation under the Code are so exempt and relating to a Purchaser Benefit Plan within six (6) years preceding no facts or circumstances have occurred that could cause the date loss of this Agreementsuch qualification or exemption, or the imposition of any material Liability, penalty or Tax under ERISA or the Code.
(ivc) With respect to each Purchaser Neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated by the Remaining Self-Management Transactions (either alone or in combination with any other event contemplated by the applicable Existing Transferors Benefit Plan: ) will (i) such Purchaser Benefit Plan has been administered and enforced result in all material respects in accordance with its termsany payment becoming due to any Property Management Employee, the Code and ERISA; (ii) neither increase the Purchaser nor compensation or benefits payable, including equity benefits, to any Subsidiary nor any employee, officer Property Management Employee or director thereof that is a fiduciary (under ERISA) with respect to such Purchaser Benefit Plan has breached any of its fiduciary responsibilities, obligations or duties imposed on it by ERISA; (iii) no Action is pending or threatened in writing (other than routine claims for benefits arising result in the ordinary course acceleration of administration); (iv) nothing has occurred with respect the time of payment, funding or vesting of any such compensation or benefits, including equity benefits, to any Purchaser Property Management Employee but excluding benefits under any Existing Transferors Benefit Plan that has subjected the Purchaser or any Subsidiary is intended to any material penalty be tax qualified under Section 502 of ERISA or Section 4975 of the Code; and (v) all contributions and premiums due through the Closing Date have been made in all material respects as required under ERISA or have been fully accrued in all material respects on the Purchaser Financials.
(v) No Purchaser Benefit Plan is, and neither the Purchaser or any Subsidiary or any of their respective ERISA Affiliates sponsors, maintains, contributes to, is required to contribute to, or otherwise has or could reasonably be expected to have any current or contingent Liability under or with respect to, a “defined benefit plan” (as defined in Section 414(j) of the Code), a “multiemployer plan” (as defined in Section 3(37) of ERISA) or a “multiple employer plan” (as described in Section 413(c) of the Code) or is otherwise subject to Title IV of ERISA or Section 412 of the Code. To the Purchaser’s Knowledge, no Purchaser Benefit Plan will become a multiple employer plan with respect to any Purchaser Entity immediately after the Closing Date. Neither the Purchaser nor any Subsidiary currently maintains or has ever maintained, or is required currently or has ever been required to contribute to or otherwise participate in, a multiple employer welfare arrangement or voluntary employees’ beneficiary association as defined in Section 501(c)(9) of the Code. For purposes of this Agreement, “ERISA Affiliate” means, with respect to any Person, any Person or entity (whether or not incorporated) that is under common control or treated as one employer under Section 4001(b)(1) of ERISA or Section 414(b), (c), (m) or (o401(a) of the Code.
Appears in 1 contract
Samples: Asset Acquisition Agreement (Inland American Real Estate Trust, Inc.)
Benefit Plans. (a) No Target Company maintains any employee benefit plan subject to ERISA. During the six (6) year period preceding the Effective Time, no Target Company or any of their ERISA Affiliates has maintained, contributed to, or had an obligation to contribute to (i) Set forth on Schedule 3.19(aa “defined benefit plan” (as defined in Section 414(j) is of the Code), (ii) a true and complete list “multiemployer plan” (as defined in Section 3(37) of each material ERISA) or (iii) a “multiple employer plan” (as described in Section 413(c) of the Code).
(b) Each Benefit Plan that covers any current or former employee of the Purchaser and its Subsidiaries any Target Company (each, a “Purchaser Company Benefit Plan”). ) has been established, administered and funded in material compliance with its terms and with the requirements of all applicable Laws and has been maintained, where required, in good standing with applicable regulatory authorities With respect to each Purchaser Company Benefit Plan, there are no funded benefit obligations for which contributions have not been materially made or properly accrued and there are no material unfunded benefit obligations that have not been accounted for by reserves, or otherwise properly footnoted in accordance with GAAP on the Purchaser Company Financials. Except as set forth on Schedule 3.19(a), neither the Purchaser nor any Subsidiary or has in the past been a member of a “controlled group” for purposes of Section 414(b), (c), (m) or (o) of the Code other than with the Purchaser or another Subsidiary, nor does the Purchaser or any Subsidiary have any Liability with respect to any collectively-bargained for plans, whether or not subject to the provisions of ERISA.
(c) The consummation of the Transactions will not, by itself: (i) entitle any current or former employee, independent contractor, officer, director or other service provider to any payment or any increase in payment under any Company Benefit Plan, (ii) Each Purchaser accelerate the time of payment, funding or vesting of any benefit under any Company Benefit Plan Plan, or (iii) result in all material respects is and has been operated any payments or benefits under any agreement with any Target Company that, individually or in compliance combination with all applicable Laws in all material respectsany other payment or benefit, including ERISA and could constitute the Code. Each Purchaser Benefit Plan which is intended to be payment of an “qualifiedexcess parachute payment” within the meaning of Section 401(a) 280G of the Code (ior in the imposition of an excise Tax under Section 4999 or Section 409A of the Code. Neither the Company nor Seller has any obligation to “gross-up,” compensate, reimburse, “make-whole,” or otherwise indemnify any individual for the imposition of any Tax under Sections 4999 or 409A of the Code. The Company has made available to the Purchaser complete and accurate copies of the Company Equity Plan and forms of agreements used thereunder. Schedule 4.19(c) has been determined by sets forth the IRS to be so qualified (or is based on a prototype plan which has received a favorable opinion letter) during the period from its adoption to beneficial and record owners of all outstanding Company Options as of the date of this Agreement (including the grant date, number and (ii) is funded through a trust exempt from taxation under Section 501(a) type of shares issuable thereunder, the Code. To exercise price, the Knowledge of the Purchaser, no fact exists which could adversely affect the qualified status of such Purchaser Benefit Plans or the exempt status of such trustsexpiration date and any vesting schedule).
(iiid) With respect Each grant of a Company Option was duly authorized no later than the date on which the grant of such Company Option was by its terms to each Purchaser Benefit Planbe effective by all necessary corporate action, the Purchaser has made available to the Seller accurate and complete copies, if applicable, ofand: (i) all Purchaser Benefit Plan documents the stock option agreement governing such grant was duly executed and agreements and related trust agreements or annuity Contracts delivered by each party thereto (including any amendments, modifications or supplements theretoelectronic execution and delivery); (ii) each such grant was made in accordance with the terms of the Company Equity Plan and all summary plan descriptions and material modifications theretoother applicable Laws; (iii) if Section 409A of the three (3) most recent Forms 5500, if applicable, and annual report, including all schedules thereto; (iv) the most recent annual and periodic accounting of plan assets; (v) the three (3) most recent nondiscrimination testing reports; (vi) the most recent determination letter received from the IRS, if any; (vii) the most recent actuarial valuation; and (viii) all material written communications between the Purchaser or any Subsidiary or any Purchaser Benefit Plan and any Governmental Authority and relating Code is applicable to a Purchaser Benefit Plan within six (6) years preceding the date of this Agreement.
(iv) With respect to each Purchaser Benefit Plan: (i) such Purchaser Benefit Plan has been administered and enforced in all material respects in accordance with its termsCompany Option, the Code and ERISA; per share exercise price of each Company Option was equal or greater than the fair market value (ii) neither within the Purchaser nor any Subsidiary nor any employee, officer or director thereof that is a fiduciary (under ERISA) with respect to such Purchaser Benefit Plan has breached any meaning of its fiduciary responsibilities, obligations or duties imposed on it by ERISA; (iii) no Action is pending or threatened in writing (other than routine claims for benefits arising in the ordinary course of administration); (iv) nothing has occurred with respect to any Purchaser Benefit Plan that has subjected the Purchaser or any Subsidiary to any material penalty under Section 502 of ERISA or Section 4975 of the Code; and (v) all contributions and premiums due through the Closing Date have been made in all material respects as required under ERISA or have been fully accrued in all material respects on the Purchaser Financials.
(v) No Purchaser Benefit Plan is, and neither the Purchaser or any Subsidiary or any of their respective ERISA Affiliates sponsors, maintains, contributes to, is required to contribute to, or otherwise has or could reasonably be expected to have any current or contingent Liability under or with respect to, a “defined benefit plan” (as defined in Section 414(j) of the Code), a “multiemployer plan” (as defined in Section 3(37) of ERISA) or a “multiple employer plan” (as described in Section 413(c) 409A of the Code) or is otherwise subject to Title IV of ERISA or Section 412 a share of Company Common Stock on the Code. To applicable grant date; and (iv) each such grant was properly accounted for in accordance with GAAP in the Purchaser’s Knowledge, no Purchaser Benefit Plan will become a multiple employer plan with respect to any Purchaser Entity immediately after financial statements (including the Closing Date. Neither the Purchaser nor any Subsidiary currently maintains or has ever maintained, or is required currently or has ever been required to contribute to or otherwise participate in, a multiple employer welfare arrangement or voluntary employees’ beneficiary association as defined in Section 501(c)(9related notes) of the Code. For purposes of this Agreement, “ERISA Affiliate” means, with respect to any Person, any Person or entity (whether or not incorporated) that is under common control or treated as one employer under Section 4001(b)(1) of ERISA or Section 414(b), (c), (m) or (o) of the CodeCompany.
Appears in 1 contract
Samples: Merger Agreement (Innovative International Acquisition Corp.)
Benefit Plans. (ia) Set forth on Schedule 3.19(a) 3.21 is a true and complete list of each material Benefit Plan of the Purchaser and its Subsidiaries (eachSeller's Benefit Plans, a “Purchaser designating which Benefit Plan”). With respect to each Purchaser Benefit Plan, there are no funded benefit obligations for which contributions have not been materially made Plans cover Employees or properly accrued and there are no material unfunded benefit obligations that have not been accounted for by reserves, or otherwise properly footnoted in accordance with GAAP on the Purchaser Financials. Except as set forth on Schedule 3.19(a), neither the Purchaser nor any Subsidiary or has in the past been a member of a “controlled group” for purposes of Section 414(b), (c), (m) or (o) former employees of the Code other than with the Purchaser or another Subsidiary, nor does the Purchaser or any Subsidiary have any Liability with respect to any collectively-bargained for plans, whether or not subject to the provisions of ERISASeller.
(ii) Each Purchaser Benefit Plan in all material respects is and has been operated in compliance with all applicable Laws in all material respects, including ERISA and the Code. Each Purchaser Benefit Plan which is intended to be “qualified” within the meaning of Section 401(a) of the Code (i) has been determined by the IRS to be so qualified (or is based on a prototype plan which has received a favorable opinion letter) during the period from its adoption to the date of this Agreement and (ii) is funded through a trust exempt from taxation under Section 501(a) of the Code. To the Knowledge of the Purchaser, no fact exists which could adversely affect the qualified status of such Purchaser Benefit Plans or the exempt status of such trusts.
(iiib) With respect to each Purchaser of the Seller's Benefit PlanPlans, the Seller has delivered to Purchaser has made available to the Seller current, accurate and complete copiescopies of such Benefit Plan (including all other instruments relating thereto) and, if to the extent applicable, of: copies of the most recent (i) all Purchaser Benefit Plan documents and agreements and related trust agreements or annuity Contracts Form 5500 (including any amendments, modifications or supplements thereto)all schedules and attachments) with respect to the last three plan years; (ii) all summary plan descriptions general notification to employees of their rights under Code Section 4980B(f) and material modifications thereto; (iiiform of letter(s) distributed upon the three (3) most recent Forms 5500occurrence of a qualifying event described in Code Section 4980B(f), if applicable, and annual report, including all schedules thereto; (iv) in the most recent annual and periodic accounting case of plan assets; (v) the three (3) most recent nondiscrimination testing reports; (vi) the most recent determination letter received from the IRS, if any; (vii) the most recent actuarial valuation; and (viii) all material written communications between the Purchaser or any Subsidiary or any Purchaser a Benefit Plan and any Governmental Authority and relating to that is a Purchaser Benefit Plan within six (6) years preceding the date of this Agreement"group health plan" as defined in Code Section 5000(b)(1).
(ivc) With respect to each Purchaser of the Seller's Benefit PlanPlans: (i) such Purchaser Benefit Plan has been administered and enforced in all material respects in accordance with its termsthere are no actions, the Code and ERISA; (ii) neither the Purchaser nor any Subsidiary nor any employee, officer suits or director thereof that is a fiduciary (under ERISA) with respect to such Purchaser Benefit Plan has breached any of its fiduciary responsibilities, obligations or duties imposed on it by ERISA; (iii) no Action is pending or threatened in writing claims (other than routine claims for benefits arising in the ordinary course course) pending, or to the knowledge of administrationthe Seller threatened, and the Seller has no knowledge of any facts which could give rise to any such actions, suits or claims (other than routine claims for benefits in the ordinary course); (ivii) nothing has occurred neither the Seller, nor any other party has, with respect to any Purchaser such Benefit Plan that has subjected Plan, engaged in a prohibited transaction, as such term is defined in Code Section 4975 or ERISA Section 406, which would subject the Purchaser or any Subsidiary Seller to any material penalty taxes, penalties or other liabilities resulting from prohibited transactions under Section 502 of ERISA or Code Section 4975 or under ERISA Sections 409 or 502(i); (iii) the Seller has complied with the reporting and disclosure requirements of the CodeERISA; and (viv) all contributions and insurance premiums due through required as of the Closing Date have been made in all material respects as required under ERISA or have been fully accrued in all material respects on the Purchaser Financialspaid.
(vd) No Purchaser With respect to each of the Seller's Benefit Plans (i) each and every Benefit Plan is, and neither the Purchaser or any Subsidiary or any of their respective ERISA Affiliates sponsors, maintains, contributes to, which is required to contribute to, or otherwise has or could reasonably be expected to have any current or contingent Liability under or with respect to, a “defined benefit plan” group health plan (as such term is defined in Code Section 414(j5000(b)(1)) complied with the applicable requirements of the Code)Code Section 162(k) for plan years beginning before January 1, a “multiemployer plan” 1989; (as defined in Section 3(37ii) of ERISA) no event or a “multiple employer plan” (as described in Section 413(c) of the Code) or is otherwise subject to Title IV of ERISA or Section 412 of the Code. To the Purchaser’s Knowledge, no Purchaser Benefit Plan will become a multiple employer plan condition exists with respect to a Benefit Plan which is a group health plan that could subject the Seller to any Purchaser Entity immediately tax under Code Section 4980B; and (iii) each such Benefit Plan (including any such plan covering former employees of the Seller) may be amended or terminated by the plan sponsor on or at any time after the Closing Date. Neither the Purchaser nor any Subsidiary currently maintains or has ever maintained, or is required currently or has ever been required to contribute to or otherwise participate in, a multiple employer welfare arrangement or voluntary employees’ beneficiary association as defined in Section 501(c)(9) of the Code. For purposes of this Agreement, “ERISA Affiliate” means, with respect to any Person, any Person or entity (whether or not incorporated) that is under common control or treated as one employer under Section 4001(b)(1) of ERISA or Section 414(b), (c), (m) or (o) of the Code.
Appears in 1 contract
Samples: Asset Purchase Agreement (Applied Graphics Technologies Inc)
Benefit Plans. (a) Each “employee pension benefit plan” (as defined in Section 3(2) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”)), each “employee welfare benefit plan” (as defined in Section 3(1) of ERISA), and each other plan, arrangement, agreement, contract or policy (written or oral) relating to stock options, stock purchases, deferred compensation, severance, retirement, fringe benefits or other employee benefits, in each case maintained or contributed to, or required to be maintained or contributed to, by the Company, the Subsidiaries, Parent or the Other Parent Affiliates, or to which any of the foregoing is a party, for the benefit of any current or former employee of the Company or the Subsidiaries (each such current or former employee, a “Business Employee”), other than any “multiemployer plan” (within the meaning of Section 3(37) of ERISA) (a “Multiemployer Plan”) or any plans, arrangements, agreements, contracts or policies mandated by Applicable Law is herein referred to as a “Parent Benefit Plan”. Each Parent Benefit Plan or portion thereof (i) Set forth on sponsored by the Company or any Subsidiary, (ii) that Purchaser or any of its affiliates has explicitly agreed to assume pursuant to this Agreement or (iii) that Purchaser or any of its affiliates is required to assume under Applicable Law or any collective bargaining agreement listed in Schedule 3.19(a) 3.17(a), is referred to herein as an “Assumed Benefit Plan”. Schedule 3.14 contains a true and complete list list, as of the date of this Agreement, of each material Benefit Plan of the Purchaser and its Subsidiaries (each, a “Purchaser Parent Benefit Plan”). With The Company has delivered or made available to Purchaser true, complete and correct copies (or, where unwritten, material details) of (A) each material Parent Benefit Plan, other than any Parent Benefit Plans that the Company is prohibited from delivering or making available to Purchaser as the result of Applicable Laws relating to the safeguarding of data privacy, (B) each trust or other funding arrangement, if any, with respect to each Purchaser material Assumed Benefit Plan, there are no funded benefit obligations (C) the most recent annual report on Form 5500 (including all schedules and attachments thereto) filed with the U.S. Internal Revenue Service (the “IRS”) with respect to each Assumed Benefit Plan (if any such report was required by Applicable Law), (D) the most recent summary plan description (or similar document) and summary of material modifications, if any, for each material Parent Benefit Plan for which contributions have not a summary plan description is required by Applicable Law, (E) the most recently received determination letter from the IRS for each material Assumed Benefit Plan, if applicable, and (F) the most recently prepared actuarial valuation report and audited financial statements in connection with each such Assumed Benefit Plan for which such actuarial valuation report or audited financial statements were required to be prepared under Applicable Law.
(b) Each Assumed Benefit Plan has been materially made or properly accrued and there are no material unfunded benefit obligations that have not been accounted for by reserves, or otherwise properly footnoted administered in accordance with GAAP on its terms and in compliance with the Purchaser Financialsapplicable provisions of ERISA, the Code, all other Applicable Laws and the terms of all applicable collective bargaining agreements, except where the failure to be so administered, individually or in the aggregate, has not had and would not reasonably be expected to have a Company Material Adverse Effect. There are no investigations by any Governmental Entity, termination proceedings or other claims (except routine claims for benefits payable under the Assumed Benefit Plans) or Proceedings pending or, to the knowledge of Seller and the Company, threatened against or involving any Assumed Benefit Plan or asserting any rights to or claims for benefits under any Assumed Benefit Plan that, individually or in the aggregate, have had or would reasonably be expected to have a Company Material Adverse Effect.
(c) No Assumed Benefit Plan is subject to Title IV of ERISA or Section 412 of the Code. As of the date of this Agreement, neither the Company nor any Subsidiary has incurred any material liability under, arising out of or by operation of Title IV of ERISA (other than liability for premiums to the Pension Benefit Guaranty Corporation arising in the ordinary course of business), including any material liability in connection with (i) the termination or reorganization of any employee benefit plan subject to Title IV of ERISA or (ii) the complete or partial withdrawal from any Multiemployer Plan or a single employer pension plan (within the meaning of Section 4001(a)(15) of ERISA) to which the Company or any Subsidiary could incur liability under Section 4063 or 4064 of ERISA and, to the knowledge of Seller and the Company, no circumstances exist that would be reasonably likely to result in the incurrence of any such material liability from the date of this Agreement through the Closing Date. Except as set forth on in Schedule 3.19(a3.14(c), neither on or following the Purchaser nor consummation of the transactions contemplated by this Agreement, none of the Company or any Subsidiary would reasonably be expected to incur any liability under Title IV of ERISA as a result of being treated as a single employer with Parent or has in the past been a member of a “controlled group” Other Parent Affiliates for purposes of Section 414(b), (c), (m) or (o) of the Code other than with or Section 4212(c) or 4069 of ERISA. On or following the Purchaser or another Subsidiaryconsummation of the transactions contemplated by this Agreement, nor does none of the Purchaser Company or any Subsidiary have would reasonably be expected to incur any Liability liability under any Applicable Laws of the United Kingdom with respect to any collectively-bargained for planspension or retirement scheme, whether plan or arrangement maintained or contributed to by Parent or its affiliates that is not subject to the provisions of ERISAan Assumed Benefit Plan.
(iid) Each Purchaser Assumed Benefit Plan in all material respects is and has been operated in compliance with all applicable Laws in all material respects, including ERISA and the Code. Each Purchaser Benefit Plan which that is intended to be “qualified” within the meaning of qualified under Section 401(a) of the Code (ior Section 401(k) has been determined by of the IRS to be so qualified (or is based on a prototype plan which Code has received a favorable opinion letter) during determination letter on a timely basis from the period from its adoption IRS covering all provisions of the Code applicable to the date of this Agreement such Assumed Benefit Plan for which determination letters are currently available that such Assumed Benefit Plan is so qualified and (ii) each trust established in connection with such Assumed Benefit Plan that is funded through a trust intended to be exempt from U.S. federal income taxation under Section 501(a) of the Code. To Code has received a determination letter from the Knowledge IRS that it is so exempt and, to the knowledge of Seller and the PurchaserCompany, no fact exists which could or event has occurred or is reasonably likely to occur since the date of such determination letter or letters that would reasonably be expected to adversely affect the qualified status of any such Purchaser Assumed Benefit Plans Plan or the exempt status of any such truststrust that, individually or in the aggregate, has had or would reasonably be expected to have a Company Material Adverse Effect. Solely for purposes of this Section 3.14(d), the term “Assumed Benefit Plan” shall be deemed to include the Parent 401(k) Plan.
(iiie) Except as set forth in Schedule 3.14(e), as provided in this Agreement, as required by Applicable Law or as would not reasonably be expected to result in material liability to the Company or any Subsidiary, none of the Assumed Benefit Plans obligates the Company or any Subsidiary to pay separation, severance, termination or similar benefits as a result of the consummation of the transactions contemplated by this Agreement (either alone or together with any subsequent event).
(f) Except as to matters that, individually or in the aggregate, have not had and would not reasonably be expected to have a Company Material Adverse Effect, no current or former independent contractor of the Company or any Subsidiary should be reclassified under Applicable Law as a Business Employee.
(g) With respect to each Purchaser Benefit Plan, the Purchaser has made available to the Seller accurate and complete copies, if applicable, of: (i) all Purchaser Assumed Benefit Plan documents and agreements and related trust agreements or annuity Contracts that is maintained for the benefit of any Business Employees primarily based outside the United States (including any amendmentsPuerto Rico), modifications other than plans, arrangements or supplements thereto); (ii) all summary plan descriptions and material modifications thereto; (iii) policies mandated by Applicable Law, or maintained pursuant to standard local custom or practice for companies in the three (3) most recent Forms 5500, if applicable, and annual report, including all schedules thereto; (iv) same industry as the most recent annual and periodic accounting of plan assets; (v) the three (3) most recent nondiscrimination testing reports; (vi) the most recent determination letter received from the IRS, if any; (vii) the most recent actuarial valuation; and (viii) all material written communications between the Purchaser Company or any Subsidiary or any Purchaser Benefit Plan and any Governmental Authority and relating to (each, a Purchaser Benefit Plan within six (6) years preceding the date of this Agreement.
(iv) With respect to each Purchaser “Non-U.S. Benefit Plan: (i”), except as set forth in Schedule 3.14(g) such Purchaser Benefit Plan has been administered and enforced in all material respects in accordance with its termsor as to matters that, the Code and ERISA; (ii) neither the Purchaser nor any Subsidiary nor any employee, officer individually or director thereof that is a fiduciary (under ERISA) with respect to such Purchaser Benefit Plan has breached any of its fiduciary responsibilities, obligations or duties imposed on it by ERISA; (iii) no Action is pending or threatened in writing (other than routine claims for benefits arising in the ordinary course of administration); (iv) nothing has occurred with respect to any Purchaser Benefit Plan that has subjected the Purchaser or any Subsidiary to any material penalty under Section 502 of ERISA or Section 4975 of the Code; aggregate, have not had and (v) all contributions and premiums due through the Closing Date have been made in all material respects as required under ERISA or have been fully accrued in all material respects on the Purchaser Financials.
(v) No Purchaser Benefit Plan is, and neither the Purchaser or any Subsidiary or any of their respective ERISA Affiliates sponsors, maintains, contributes to, is required to contribute to, or otherwise has or could would not reasonably be expected to have any current or contingent Liability under or with respect to, a “defined benefit plan” Company Material Adverse Effect:
(as defined in Section 414(ji) of the Code), a “multiemployer plan” (as defined in Section 3(37) of ERISA) or a “multiple all employer plan” (as described in Section 413(c) of the Code) or is otherwise subject and employee contributions to Title IV of ERISA or Section 412 of the Code. To the Purchaser’s Knowledge, no Purchaser each Non-U.S. Benefit Plan will become a multiple employer plan required by Applicable Law or the terms of such Non-U.S. Benefit Plan have been made or, if applicable, accrued in accordance with respect normal accounting practices; and
(ii) each Non-U.S. Benefit Plan required under Applicable Law to any Purchaser Entity immediately after be registered has been registered with the Closing Date. Neither the Purchaser nor any Subsidiary currently maintains or applicable regulatory authorities and has ever maintained, or is required currently or has ever been required to contribute to or otherwise participate in, a multiple employer welfare arrangement or voluntary employees’ beneficiary association as defined maintained in Section 501(c)(9) of the Code. For purposes of this Agreement, “ERISA Affiliate” means, good standing with respect to any Person, any Person or entity (whether or not incorporated) that is under common control or treated as one employer under Section 4001(b)(1) of ERISA or Section 414(b), (c), (m) or (o) of the Codesuch regulatory authorities.
Appears in 1 contract
Samples: Stock Purchase Agreement (Brinks Co)
Benefit Plans. (i) Set Schedule 3.02(p) sets forth on Schedule 3.19(a) is a true true, complete and complete correct list of each material Benefit Plan of the Purchaser and its Subsidiaries (each, a “Purchaser Benefit Plan”). With respect to each Purchaser Benefit Plan, there are no funded benefit obligations for which contributions Sellers have not been materially made or properly accrued and there are no material unfunded benefit obligations that have not been accounted for by reservesprovided, or otherwise properly footnoted in accordance with GAAP on made available, to the Purchaser Financials. Except REIT, as set forth on Schedule 3.19(aapplicable: (A) all documents embodying or governing such Plan (or a complete and accurate summary of any Plan that is not evidenced by a written plan document), neither and any funding medium for the Purchaser nor any Subsidiary or has in the past been a member of a “controlled group” for purposes of Section 414(bPlan (including, without limitation, trust agreements), (c), (mB) the most recent IRS determination or (o) of the Code other than with the Purchaser or another Subsidiary, nor does the Purchaser or any Subsidiary have any Liability opinion letter with respect to any collectively-bargained for plans, whether or not subject to the provisions of ERISA.
(ii) Each Purchaser Benefit such Plan in all material respects is and has been operated in compliance with all applicable Laws in all material respects, including ERISA and the Code. Each Purchaser Benefit Plan which is intended to be “qualified” within the meaning of under Section 401(a) of the Code Code, (i) has been determined by the IRS to be so qualified (or is based on a prototype plan which has received a favorable opinion letter) during the period from its adoption to the date of this Agreement and (ii) is funded through a trust exempt from taxation under Section 501(a) of the Code. To the Knowledge of the Purchaser, no fact exists which could adversely affect the qualified status of such Purchaser Benefit Plans or the exempt status of such trusts.
(iii) With respect to each Purchaser Benefit Plan, the Purchaser has made available to the Seller accurate and complete copies, if applicable, of: (i) all Purchaser Benefit Plan documents and agreements and related trust agreements or annuity Contracts (including any amendments, modifications or supplements thereto); (ii) all summary plan descriptions and material modifications thereto; (iiiC) the three (3) most recent Forms 5500recently filed IRS Form 5500 Annual Reports and accompanying schedules and audited financial statements, if applicable, and annual report, including all schedules thereto; (ivD) the most recent annual actuarial report, (E) the current summary plan description for such Plan and periodic accounting all summaries of plan assetsmaterial modifications thereto, (F) any insurance policy related to such Plan, and (G) all material written correspondence received from the IRS, Pension Benefit Guaranty Corporation, the U.S. Department of Labor or any other Governmental Authority relating thereto.
(ii) With respect to each Plan, (A) no claims (other than routine claims for benefits in the ordinary course of business) are pending or threatened in writing or, to any Seller’s Knowledge, threatened orally against any Seller, Manager Sub, any Plan or a fiduciary of any Plan; (vB) no facts or circumstances exist that would give rise to any such claims; (C) there is no administrative investigation, audit or other administrative proceeding by the Department of Labor, the Pension Benefit Guaranty Corporation, the IRS or other Governmental Authority pending or threatened in writing or, to any Seller’s Knowledge, threatened orally against any Seller, Manager Sub, any Plan or a fiduciary of any Plan, and within the three (3) most recent nondiscrimination testing reports; (vi) years prior to the most recent determination letter received from date hereof, none of the IRSSellers nor Manger Sub have been the subject of an examination or audit by a Governmental Authority or the subject of an application or filing under, if any; (vii) the most recent actuarial valuationor is a participant in, an amnesty, voluntary compliance, self-correction or similar program sponsored by any Governmental Authority with respect to any Plan; and (viiiD) all material written communications between each Plan which is intended to be qualified within the Purchaser meaning of Code Section 401(a) is, and has been since its adoption, so qualified and has received, or is entitled to rely upon, a favorable determination or opinion letter as to its qualification, and nothing has occurred, whether by action or failure to act, that would reasonably be expected to cause the loss of such qualification and neither the Sellers nor any Subsidiary Affiliate thereof has received any correspondence or any Purchaser Benefit Plan and any notice from a Governmental Authority and relating to a Purchaser Benefit Plan within six (6) years preceding that calls into question the date qualification of this Agreement.
(iv) With respect to each Purchaser Benefit any such Plan: (i) such Purchaser Benefit . Each Plan has been administered and enforced operated in all material respects in accordance with its terms, terms and with the Code and ERISA; (ii) neither requirements of all applicable Laws. There have been no non-exempt “prohibited transactions” within the Purchaser nor any Subsidiary nor any employee, officer or director thereof that is a fiduciary (under ERISA) with respect to such Purchaser Benefit Plan has breached any meaning of its fiduciary responsibilities, obligations or duties imposed on it by ERISA; (iii) no Action is pending or threatened in writing (other than routine claims for benefits arising in the ordinary course of administration); (iv) nothing has occurred with respect to any Purchaser Benefit Plan that has subjected the Purchaser or any Subsidiary to any material penalty under Section 502 of ERISA or Section 4975 of the Code; Code or Section 406 of ERISA and (v) no breach of fiduciary duty has occurred. With respect to each Plan, as applicable, all contributions reports and premiums due through disclosures required to be filed or delivered under ERISA and the Closing Date Code have been made accurate in all material respects as required under ERISA or of the date filed, have been filed or distributed in a timely manner, and any Taxes due in connection with such filings have been paid. All contributions, transfers and payments in respect of any Plan made within the past three years have been or are fully deductible under the Code. All contributions (including all employer contributions and employee salary reduction contributions), premiums and expenses to or in respect of each Plan have been timely paid in full or, to the extent not yet due, have been adequately accrued in all material respects on financial statements that have been provided to the Purchaser FinancialsREIT and the OP. Each Plan that is an “employee welfare benefit plan” (within the meaning of Section 3(1) of ERISA), with the exception of any flexible spending arrangements subject to Sections 125 and 105 of the Code and health savings accounts, are provided exclusively through insurance Contracts or policies issued by an insurance company, health maintenance organization, or similar organization unrelated to the Sellers.
(viii) No Purchaser Benefit Plan isis subject to Title IV of ERISA, and neither a multiemployer plan (within the Purchaser or any Subsidiary or any meaning of their respective ERISA Affiliates sponsors, maintains, contributes to, is required to contribute to, or otherwise has or could reasonably be expected to have any current or contingent Liability under or with respect toSection 3(37)), a “defined benefit planmultiple employer welfare arrangement” (as defined in Section 414(j) of the Code), a “multiemployer plan” (as defined in Section 3(373(40) of ERISA) ), or a “multiple employer plan” (as described defined in Section 413(c) 413 of the Code) and no Seller has ever contributed to or is otherwise maintained any such plan. Neither Sellers nor Manager Sub has any liability under Title IV of ERISA, the Code or other applicable Law with respect to any “employee benefit plan” (as defined in Section 3(3) of ERISA) subject to Title IV of ERISA that is maintained by an ERISA Affiliate or to which an ERISA Affiliate contributes or previously contributed.
(iv) Except as set forth on Schedule 3.02(p), no Plan provides for any post-termination or retiree welfare benefits to any individual for any reason, other than as required under Section 412 4980B or the Code, Part 6 of Title I of ERISA or other similar applicable Law. With respect to each Plan that is an employee welfare benefit plan (within the meaning of Section 3(1) of ERISA), all claims incurred by Sellers or Manager Sub are (i) fully insured, or (ii) covered under a contract with a health maintenance organization.
(v) Except as set forth on Schedule 3.02(p), neither the execution of this Agreement nor the consummation of the transactions contemplated hereby will (individually or together with the occurrence of any other event): (i) entitle any current or former Business Employee to any payment or benefit, (ii) accelerate the time of payment, vesting or funding, or increase the amount or value of any compensation due to such person, (iii) result in “excess parachute payments” within the meaning of Section 280G(b) of the Code or result in the payment of any excess parachute payments (within the meaning Section 280G of the Code. To ) or (iv) require a “gross-up” or other payment to any “disqualified individual” (within the Purchaser’s Knowledge, no Purchaser Benefit Plan will become a multiple employer plan meaning Section 280G of the Code) or with respect to any Purchaser Entity immediately deferred compensation plan within the meaning of Section 409A of the Code.
(vi) Each Plan that is a “nonqualified deferred compensation plan” (within the meaning of Section 409A(d)(1) of the Code) has (i) been maintained in good faith compliance with Section 409A of the Code and all applicable Treasury Regulations promulgated thereunder so as to avoid any Tax, penalty or interest under Section 409A of the Code and, as to any such plan in existence prior to January 1, 2005, has not been “materially modified” (within the meaning of IRS Notice 2005-1) at any time after the Closing Date. Neither the Purchaser nor any Subsidiary currently maintains October 3, 2004, or has ever maintainedbeen amended in a manner that conforms with the requirements of Section 409A of the Code, or and (ii) been in documentary and operational compliance with Section 409A of the Code and all applicable IRS guidance promulgated thereunder in all material respects.
(vii) Each Seller and each Plan that is required currently or has ever been required to contribute to or otherwise participate in, a multiple employer welfare arrangement or voluntary employees’ beneficiary association “group health plan” as defined in Section 501(c)(9) of the Code. For purposes of this Agreement, “ERISA Affiliate” means, with respect to any Person, any Person or entity (whether or not incorporated) that is under common control or treated as one employer under Section 4001(b)(1733(a)(1) of ERISA or Section 414(b(a “Company Health Plan”) (i) is currently in compliance with the Patient Protection and Affordable Care Act, Pub. L. No. 111-148 (“PPACA”), (c)the Health Care and Education Reconciliation Act of 2010, (m) or (o) of the CodePub.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Carter Validus Mission Critical REIT II, Inc.)
Benefit Plans. As used in this Agreement, (i) Set forth on the term "Benefit Plan" ------------- means each employee benefit plan (as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")), and each other material benefit or compensation plan, program or arrangement, other than any plan, program or arrangement mandated by Law, which is maintained or contributed to by the Parent, the Seller, any DMS Company or any DMS Subsidiary (or to which a DMS Company or a DMS Subsidiary is obligated to contribute) for the benefit of any current or former employee, officer or director of any DMS Company or any DMS Subsidiary. Section 2.2(n) of the Disclosure Schedule 3.19(a) is a true and complete list of lists or describes each material Benefit Plan Plan. The Seller has furnished or made available to the Purchaser an accurate copy of the Purchaser plan document and its Subsidiaries (each, a “Purchaser summary plan description of each Benefit Plan”). With respect to each Purchaser any Benefit Plan that is sponsored solely by the Seller, a DMS Company and/or a DMS Subsidiary (a "Company Plan") and any other Benefit Plan which is a defined benefit plan, there are no funded benefit obligations for which contributions have not been materially made or properly accrued and there are no material unfunded benefit obligations that have not been accounted for by reserves, or otherwise properly footnoted in accordance with GAAP on the Seller has furnished the Purchaser Financialsthe most recent annual report, financial statement and actuarial valuation, if any, with respect to such Company Plan. Except as set forth on Schedule 3.19(a)In addition, neither the Purchaser nor any Subsidiary or has in the past been a member of a “controlled group” for purposes of Section 414(b), (c), (m) or (o) of the Code other than with the Purchaser or another Subsidiary, nor does the Purchaser or any Subsidiary have any Liability with respect to any collectively-bargained for plansCompany Plan, whether the Seller has furnished to Purchaser the trust agreement, the insurance contract or other funding arrangement or agreement, or material employee communications and, where applicable, the IRS determination letter. Except as specified in Section 2.2(n) of the Disclosure Schedule, or as would not subject reasonably be expected to have a Material Adverse Effect:
(i) neither the provisions Parent nor any member of ERISA.the Parent's "controlled group", within the meaning of Sections 414(b) and (c) of the Code, has incurred any direct or indirect liability under ERISA or the Code in connection with the termination of, withdrawal from or failure to fund any Benefit Plan that could result in liability to a DMS Company or a DMS Subsidiary, and no event has occurred that could reasonably be expected to give rise to such liability;
(ii) Each Purchaser Benefit Plan none of the Company Plans provides for payment of a benefit, the increase of a benefit amount, the payment of a contingent benefit or the acceleration of the payment or vesting of a benefit by reason of the execution of this Agreement or the consummation of the transactions contemplated by this Agreement;
(iii) no acceleration of the vesting schedule for any property that is substantially unvested within the meaning of the regulations under Section 83 of the Internal Revenue Code of 1986, as amended (the "Code"), will occur in all material respects is and connection with the transactions contemplated by this Agreement;
(iv) there are no pending, threatened, or to the knowledge of the Seller, anticipated claims relating to any Company Plan, other than routine claims for benefits;
(v) each of the Company Plans has been operated and maintained in compliance accordance with all its terms and with the requirements of applicable Laws in all material respects, including ERISA and Law;
(vi) none of the Code. Each Purchaser Company Plans is a multiemployer plan within the meaning of Section 3(37) of ERISA;
(vii) each Benefit Plan which is intended to be “"qualified” " within the meaning of Section 401(a) of the Code (i) has been determined by the IRS to be is so qualified (or is based on a prototype plan which and has received a favorable opinion letter) during determination letter from the period from its adoption Internal Revenue Service to such effect, and neither the date Parent nor the Seller is aware of this Agreement and (ii) is funded through a trust exempt from taxation under Section 501(a) of any circumstances likely to result in the Code. To the Knowledge of the Purchaser, no fact exists which could adversely affect the qualified status revocation of such Purchaser Benefit Plans or the exempt status of such trusts.determination letter;
(iii) With respect to each Purchaser Benefit Plan, the Purchaser has made available to the Seller accurate and complete copies, if applicable, of: (i) all Purchaser Benefit Plan documents and agreements and related trust agreements or annuity Contracts (including any amendments, modifications or supplements thereto); (ii) all summary plan descriptions and material modifications thereto; (iii) the three (3) most recent Forms 5500, if applicable, and annual report, including all schedules thereto; (iv) the most recent annual and periodic accounting of plan assets; (v) the three (3) most recent nondiscrimination testing reports; (vi) the most recent determination letter received from the IRS, if any; (vii) the most recent actuarial valuation; and (viii) all material written communications between the Purchaser contributions required to be made by any DMS Company or any DMS Subsidiary or any Purchaser to each Benefit Plan have been timely made, and any Governmental Authority and relating to a Purchaser Benefit Plan within six (6) years preceding all contributions that have accrued but are not yet due are reflected on the date of this Agreement.Closing Date Balance Sheet;
(ivix) With respect to each Purchaser Benefit Plan: (i) such Purchaser no Benefit Plan has been administered and enforced in all material respects in accordance with its terms, any "amount of unfunded benefit liability" within the Code and meaning of Section 4001(a)(18) of ERISA; ;
(iix) neither the Purchaser Seller nor any Subsidiary nor DMS Company, DMS Subsidiary, or any employee, officer or director thereof that Affiliate of the Seller is a fiduciary party to any agreement or arrangement that would result separately or in the aggregate in the payment of any "excess parachute payments" within the meaning of Section 280G of the Code;
(under ERISAxi) none of the DMS Companies nor the DMS Subsidiaries has any obligations for, or any liabilities with respect to such Purchaser Benefit Plan has breached any of its fiduciary responsibilitiesto, obligations post-employment medical, life, or duties imposed on it by ERISA; (iii) no Action is pending or threatened in writing (other than routine claims similar welfare benefits except for benefits arising in the ordinary course of administration); (iv) nothing has occurred with respect required to any Purchaser Benefit Plan that has subjected the Purchaser or any Subsidiary to any material penalty be provided under Section 502 of ERISA or Section 4975 4980B of the Code; and (v) all contributions and premiums due through the Closing Date have been made in all material respects as required under ERISA or have been fully accrued in all material respects on the Purchaser Financials.and
(vxii) No Purchaser Benefit Plan is, and neither the Purchaser no payments or benefits under any Subsidiary or any of their respective ERISA Affiliates sponsors, maintains, contributes to, is required to contribute to, or otherwise has or could reasonably be expected to have any current or contingent Liability under or with respect to, a “defined benefit plan” (as defined in Section 414(j) of the Code), a “multiemployer plan” (as defined in Section 3(37) of ERISA) or a “multiple employer plan” (as described in Section 413(c) of the Code) or is otherwise subject to Title IV of ERISA or Section 412 of the Code. To the Purchaser’s Knowledge, no Purchaser Benefit Plan will become a multiple employer plan with respect be subject to any Purchaser Entity immediately after the Closing Date. Neither the Purchaser nor any Subsidiary currently maintains or has ever maintained, or is required currently or has ever been required to contribute to or otherwise participate in, a multiple employer welfare arrangement or voluntary employees’ beneficiary association as defined in deduction limits of Section 501(c)(9) of the Code. For purposes of this Agreement, “ERISA Affiliate” means, with respect to any Person, any Person or entity (whether or not incorporated) that is under common control or treated as one employer under Section 4001(b)(1) of ERISA or Section 414(b), (c), (m) or (o162(m) of the Code.
Appears in 1 contract
Benefit Plans. (ia) Set forth on Schedule 3.19(a) is 3.24 of the Disclosure Schedule contains a true and complete list of each material Benefit Plan and every written, unwritten, formal or informal, funded or unfunded plan, agreement, contract, program, policy, or other arrangement involving direct or indirect compensation (other than workers’ compensation, unemployment compensation and other government programs), employment, consulting, retirement benefits, bonuses, supplemental unemployment benefits, severance benefits, deferred compensation, performance awards, stock or stock-related awards, other forms of incentive compensation, welfare benefits, fringe benefits or other employee benefits of any kind, entered into, maintained, contributed to, or required to be contributed to, by the Purchaser and Company, or any of its Subsidiaries with or for the benefit of any current or former employee, consultant or director, including, without limitation, the Management Incentive Plan (eachcollectively, a the “Purchaser Benefit PlanEmployee Plans”). With respect The Company has delivered or made available to the Investors a true, correct or complete copy of each Purchaser Benefit PlanEmployee Plan (or, there are no funded benefit obligations for which contributions have not been materially made or properly accrued and there are no material unfunded benefit obligations that have not been accounted for by reserves, or otherwise properly footnoted in accordance with GAAP on the Purchaser Financials. Except as set forth on Schedule 3.19(a), neither the Purchaser nor any Subsidiary or has in the past been case of any unwritten plan, a member description thereof) and related trust documents and amendments thereto. Neither the Company, any of a “controlled group” for purposes its Subsidiaries or any other Person under common control with the Company or any of its Subsidiaries within the meaning of Section 414(b), (c), (m) or (o) of the Code other than with and the Purchaser regulations issued thereunder (each, an “ERISA Affiliate”) sponsors, maintains, administers, contributes to or another Subsidiary, nor does the Purchaser or has any Subsidiary have any Liability liability with respect to any collectively-bargained for plans, whether or not subject to the provisions of ERISA.
(ii) Each Purchaser Benefit Plan “employee benefit plan,” as defined in all material respects is and has been operated in compliance with all applicable Laws in all material respects, including ERISA and the Code. Each Purchaser Benefit Plan which is intended to be “qualified” within the meaning of Section 401(a3(3) of the Code Employee Retirement Income Security Act of 1974, as amended, (i“ERISA”) has been determined by the IRS to be so qualified (or is based on a prototype plan which has received a favorable opinion letter) during the period from its adoption to the date of this Agreement and (ii) is funded through a trust exempt from taxation under Section 501(a) none of the CodeEmployee Plans covers any employee residing or working in the United States other than the Management Incentive Plan. To Neither the Knowledge of the PurchaserCompany, no fact exists which could adversely affect the qualified status of such Purchaser Benefit Plans or the exempt status of such trusts.
(iii) With respect to each Purchaser Benefit Plan, the Purchaser has made available to the Seller accurate and complete copies, if applicable, of: (i) all Purchaser Benefit Plan documents and agreements and related trust agreements or annuity Contracts (including any amendments, modifications or supplements thereto); (ii) all summary plan descriptions and material modifications thereto; (iii) the three (3) most recent Forms 5500, if applicable, and annual report, including all schedules thereto; (iv) the most recent annual and periodic accounting of plan assets; (v) the three (3) most recent nondiscrimination testing reports; (vi) the most recent determination letter received from the IRS, if any; (vii) the most recent actuarial valuation; and (viii) all material written communications between the Purchaser or any Subsidiary or any Purchaser Benefit Plan and any Governmental Authority and relating to a Purchaser Benefit Plan within six (6) years preceding the date of this Agreement.
(iv) With respect to each Purchaser Benefit Plan: (i) such Purchaser Benefit Plan has been administered and enforced in all material respects in accordance with its terms, the Code and ERISA; (ii) neither the Purchaser nor any Subsidiary nor any employee, officer or director thereof that is a fiduciary (under ERISA) with respect to such Purchaser Benefit Plan has breached any of its fiduciary responsibilitiesSubsidiaries nor any ERISA Affiliate has ever sponsored, obligations maintained, administered, contributed to, or duties imposed on it by ERISA; (iii) no Action is pending or threatened in writing (other than routine claims for benefits arising in the ordinary course of administration); (iv) nothing has occurred had any liability with respect to any Purchaser Benefit Employee Plan that which is or has subjected the Purchaser or any Subsidiary been subject to any material penalty under Section 502 Title IV of ERISA or Code Section 4975 of the Code; and (v) all contributions and premiums due through the Closing Date have been made in all material respects as required under 412 or ERISA or have been fully accrued in all material respects on the Purchaser Financials.
(v) No Purchaser Benefit Plan isSection 302, and neither the Purchaser or including without limitation any Subsidiary or any of their respective ERISA Affiliates sponsors, maintains, contributes to, is required to contribute to, or otherwise has or could reasonably be expected to have any current or contingent Liability under or with respect to, a “defined benefit plan” (as defined in Section 414(j) of the Code), a “multiemployer plan” (as defined in Section 3(37) of ERISA) or a “multiple employer plan” (as described in Section 413(c) of the Code) or is otherwise subject to Title IV of ERISA or Section 412 4001(a)(3) of ERISA).
(b) Each Employee Plan has been established and maintained, in all material respects, in accordance with its terms and all applicable Law. All material contributions, reserves, premium payments or other payments required to be made or accrued as of the Code. To date hereof with respect to each Employee Plan has been timely made or accrued.
(c) The execution of this Agreement and the Purchaser’s Knowledgeconsummation of the Transactions (alone or together with any other event which, no Purchaser Benefit Plan standing alone, would not by itself trigger such entitlement or acceleration) will become a multiple employer plan not (1) entitle any Person to any payment, forgiveness of indebtedness, vesting, distribution, or increase in benefits under or with respect to any Purchaser Entity immediately after the Closing Date. Neither the Purchaser nor Employee Plan (including, without limitation, any Subsidiary currently maintains “change of control” or has ever maintainedsimilar type payments), (2) otherwise trigger any acceleration (of vesting or payment of benefits or otherwise) under or with respect to any Employee Plan, or is required currently or has ever been required (3) trigger any obligation to contribute to or otherwise participate in, a multiple employer welfare arrangement or voluntary employees’ beneficiary association as defined in Section 501(c)(9) of the Codefund any Employee Plan. For purposes of this Agreementthe foregoing sentence, the term “ERISA Affiliatepayment” meansshall include (without limitation) any payment, with respect acceleration, forgiveness of indebtedness, vesting, distribution, increase in benefits or obligation to fund benefits.
(d) No Employee Plan provides post-termination of employment or retiree life insurance, health or other employee welfare benefits to any Person, any Person current or entity (whether former employee or not incorporated) that is under common control or treated as one employer under Section 4001(b)(1) of ERISA or Section 414(b), (c), (m) or (o) director of the CodeCompany or any of its Subsidiaries, except as may be required by applicable Law.
Appears in 1 contract
Samples: Stock and Notes Purchase Agreement (China Recycling Energy Corp)
Benefit Plans. (ia) Set forth on Schedule 3.19(a5.19(a) is a true and complete list of each lists all material Benefit Plan of the Purchaser and its Subsidiaries Plans.
(each, a “Purchaser Benefit Plan”). b) With respect to each Purchaser Benefit Plan, no event has occurred, and there exists no condition or set of circumstances, in connection with which Impact 21 could reasonably be expected to be subject to any liability under any applicable Law, except liability for benefits claims and funding obligations payable in the ordinary course.
(c) Each Benefit Plan conforms to all applicable Law, and its administration complies in all material respects with its terms and all applicable Law.
(d) Except as disclosed in Schedule 5.19(d), with respect to each Benefit Plan, there are no funded benefit obligations for which contributions have not been materially made or properly accrued and there are no material unfunded benefit obligations in addition to ¥836,693,997 that has been accrued on the Unaudited Financial Statements that have not been properly accrued or accounted for by reserves, or otherwise properly footnoted in accordance with GAAP Japanese GAAP, on the Purchaser Financials. Unaudited Financial Statements of Impact 21.
(e) There are no Claims or Liens pending or, to the Knowledge of Impact 21, threatened (other than routine claims for benefits) with respect to any Benefit Plan or against the assets of any Benefit Plan, other than Claims or Liens that would not, individually or in the aggregate, have a material adverse effect on the ability of Impact 21 to perform its obligations in respect of any such Benefit Plan.
(f) The consummation of the transactions contemplated by this Agreement will not entitle any current or former employee to severance pay, unemployment compensation or any similar payment or accelerate the time of payment or vesting, or increase the amount of any compensation due to, or in respect of, any current or former employee.
(g) Except as set forth on Schedule 3.19(a5.19(g), neither no current or former employee of Impact 21 is covered by or entitled to benefits under any benefit plan maintained by, or contributed to by, OK.
(h) Impact 21 does not maintain or contribute to, and has not within the Purchaser nor any Subsidiary preceding six (6) years maintained or contributed to, or has in had during such period the past been a member of a “controlled group” for purposes of Section 414(b)obligation to maintain or contribute to, (c), (m) or (o) of the Code other than with the Purchaser or another Subsidiary, nor does the Purchaser or any Subsidiary may have any Liability with respect to any collectively-bargained Benefit Plan maintained for plans, whether Persons other than current or not subject to the provisions former employees of ERISAImpact 21.
(ii) Each Purchaser Benefit Plan in all material respects is and has been operated in compliance with all applicable Laws in all material respects, including ERISA and the Code. Each Purchaser Benefit Plan which is intended to be “qualified” within the meaning of Section 401(a) of the Code (i) has been determined by the IRS to be so qualified (Impact 21 does not have any obligation or is based on a prototype plan which has received a favorable opinion letter) during the period from its adoption have any direct or indirect Liability with respect to the date provision of this Agreement and (ii) is funded through a trust exempt from taxation under Section 501(a) health or death benefits to or in respect of the Code. To the Knowledge of the Purchaser, no fact exists which could adversely affect the qualified status of such Purchaser Benefit Plans or the exempt status of such trustsformer employees.
(iiij) With Impact 21 does not have any direct or indirect Liability with respect to each Purchaser Benefit Plan, the Purchaser has made available to the Seller accurate and complete copies, if applicable, of: (i) all Purchaser Benefit Plan documents and agreements and related trust agreements accrued vacation days of current or annuity Contracts (including any amendments, modifications or supplements thereto); (ii) all summary plan descriptions and material modifications thereto; (iii) the three (3) most recent Forms 5500, if applicable, and annual report, including all schedules thereto; (iv) the most recent annual and periodic accounting of plan assets; (v) the three (3) most recent nondiscrimination testing reports; (vi) the most recent determination letter received from the IRS, if any; (vii) the most recent actuarial valuation; and (viii) all material written communications between the Purchaser or any Subsidiary or any Purchaser Benefit Plan and any Governmental Authority and relating to a Purchaser Benefit Plan within six (6) years preceding the date of this Agreementformer employees.
(ivk) With respect to each Purchaser Benefit Plan: (i) such Purchaser Benefit Plan Impact 21 has been administered and enforced in all material respects in accordance with its termsno agreements, the Code and ERISA; (ii) neither the Purchaser nor any Subsidiary nor any employee, officer or director thereof that is a fiduciary (under ERISA) with respect to such Purchaser Benefit Plan has breached any of its fiduciary responsibilitiesarrangements, obligations or duties imposed on it by ERISA; (iii) no Action is pending other conventions with, or threatened in writing (to, its employees other than routine claims for benefits arising those that are as set forth in Impact 21’s written work rules and the ordinary course of administrationagreements relating to overtime (saburoku kyotei); (iv) nothing has occurred with respect to any Purchaser Benefit Plan that has subjected the Purchaser or any Subsidiary to any material penalty under Section 502 of ERISA or Section 4975 of the Code; and (v) all contributions and premiums due through the Closing Date have been made in all material respects as required under ERISA or have been fully accrued in all material respects on the Purchaser Financials.
(v) No Purchaser Benefit Plan is, and neither the Purchaser or any Subsidiary or any of their respective ERISA Affiliates sponsors, maintains, contributes to, is required to contribute to, or otherwise has or could reasonably be expected to have any current or contingent Liability under or with respect to, a “defined benefit plan” (as defined in Section 414(j) of the Code), a “multiemployer plan” (as defined in Section 3(37) of ERISA) or a “multiple employer plan” (as described in Section 413(c) of the Code) or is otherwise subject to Title IV of ERISA or Section 412 of the Code. To the Purchaser’s Knowledge, no Purchaser Benefit Plan will become a multiple employer plan with respect to any Purchaser Entity immediately after the Closing Date. Neither the Purchaser nor any Subsidiary currently maintains or has ever maintained, or is required currently or has ever been required to contribute to or otherwise participate in, a multiple employer welfare arrangement or voluntary employees’ beneficiary association as defined in Section 501(c)(9) of the Code. For purposes of this Agreement, “ERISA Affiliate” means, with respect to any Person, any Person or entity (whether or not incorporated) that is under common control or treated as one employer under Section 4001(b)(1) of ERISA or Section 414(b), (c), (m) or (o) of the Code.
Appears in 1 contract
Benefit Plans. (ia) Set Except as set forth on Schedule 3.19(a) is a true and complete list of each material Benefit Plan 4.18 of the Purchaser and its Subsidiaries (eachDisclosure Schedules, a “Purchaser the Company does not operate, administer or maintain, nor has it contributed to or has any obligation to contribute to any Benefit Plan”)Plans. With respect to this Section 4.18, the term “Company” includes any ERISA Affiliate of the Company.
(b) With respect to each Purchaser Benefit Plan, there are no funded benefit obligations for which contributions have not been materially made or properly accrued made, and there are no material unfunded benefit obligations that have not been accounted all monies withheld for by reserves, or otherwise properly footnoted in accordance with GAAP on the Purchaser Financials. Except as set forth on Schedule 3.19(a), neither the Purchaser nor any Subsidiary or has in the past been a member of a “controlled group” for purposes of Section 414(b), (c), (m) or (o) of the Code other than with the Purchaser or another Subsidiary, nor does the Purchaser or any Subsidiary have any Liability employee paychecks with respect to any collectively-bargained for plans, whether or not subject Benefit Plans have been transferred to the provisions of ERISAappropriate Benefit Plan within the time required under applicable Law.
(iic) Each Purchaser Benefit Plan in all material respects is and has been maintained, operated and administered at all times in compliance with all its terms and applicable Laws in all material respectsLaws, including ERISA and the CodeCode in all material respects. Each Purchaser No event has occurred, nor do any circumstances exists, that could reasonably be expected to give rise to any material Liability or civil penalty under any Laws with respect to any Benefit Plan. All contributions and other payments required to be made to each Benefit Plan which is intended under the terms of that Benefit Plan, ERISA, the Code or any other applicable Law have been timely made and all contributions made have been fully deductible under the Code.
(d) Neither the execution and delivery of this Agreement or any Ancillary Agreement, nor the consummation of the transactions contemplated hereby could, either alone or in combination with another event, (i) entitle any individual to be any severance pay, unemployment compensation, forgiveness of indebtedness or other benefits or compensation; (ii) accelerate the time of payment or vesting, funding, or increase the amount of any compensation due, or in respect of, any individual; (iii) result in or satisfy a condition to the payment of compensation that would, in combination with any other payment, result in an “qualifiedexcess parachute payment” within the meaning of Section 401(a) 280G of the Code (i) has been determined by the IRS to or that would not be so qualified (or is based on a prototype plan which has received a favorable opinion letter) during the period from its adoption to the date of this Agreement and (ii) is funded through a trust exempt from taxation deductible under Section 501(a) 162 or 404 of the Code. To the Knowledge of the Purchaser, no fact exists which could adversely affect the qualified status of such Purchaser Benefit Plans ; or the exempt status of such trusts.
(iii) With respect to each Purchaser Benefit Plan, the Purchaser has made available to the Seller accurate and complete copies, if applicable, of: (i) all Purchaser Benefit Plan documents and agreements and related trust agreements or annuity Contracts (including any amendments, modifications or supplements thereto); (ii) all summary plan descriptions and material modifications thereto; (iii) the three (3) most recent Forms 5500, if applicable, and annual report, including all schedules thereto; (iv) directly or indirectly cause the most recent annual and periodic accounting of plan assets; (v) the three (3) most recent nondiscrimination testing reports; (vi) the most recent determination letter received from the IRSCompany to transfer or set aside any assets to fund any material benefits under any Benefit Plan. The Company does not have any obligation to indemnify, if any; (vii) the most recent actuarial valuation; and (viii) all material written communications between the Purchaser hold harmless or gross-up any Subsidiary or any Purchaser Benefit Plan and any Governmental Authority and relating to a Purchaser Benefit Plan within six (6) years preceding the date of this Agreement.
(iv) With individual with respect to any excise tax imposed under Sections 4999 or 409A of the Code and each Purchaser Benefit Plan: (i) such Purchaser Benefit Plan has been administered and enforced in all material respects in accordance with its terms, the Code and ERISA; (ii) neither the Purchaser nor any Subsidiary nor any employee, officer or director thereof that is a fiduciary (under ERISA) with respect to such Purchaser Benefit Plan has breached any of its fiduciary responsibilities, obligations or duties imposed on it by ERISA; (iii) no Action is pending or threatened in writing (other than routine claims for benefits arising in the ordinary course of administration); (iv) nothing has occurred with respect to any Purchaser Benefit Plan that has subjected the Purchaser or any Subsidiary to any material penalty under Section 502 of ERISA or Section 4975 of the Code; and (v) all contributions and premiums due through the Closing Date have been made in all material respects as required under ERISA or have been fully accrued in all material respects on the Purchaser Financials.
(v) No Purchaser Benefit Plan is, and neither the Purchaser or any Subsidiary or any of their respective ERISA Affiliates sponsors, maintains, contributes to, is required to contribute to, or otherwise has or could reasonably be expected to have any current or contingent Liability under or with respect to, a “defined benefit plan” (as defined in Section 414(j) of the Code), a “multiemployer plan” (as defined in Section 3(37) of ERISA) or a “multiple employer plan” (as described in Section 413(c) of the Code) or is otherwise subject to Title IV of ERISA or Section 412 of the Code. To the Purchaser’s Knowledge, no Purchaser Benefit Plan will become a multiple employer plan with respect to any Purchaser Entity immediately after the Closing Date. Neither the Purchaser nor any Subsidiary currently maintains or has ever maintained, or is required currently or has ever been required to contribute to or otherwise participate in, a multiple employer welfare arrangement or voluntary employees’ beneficiary association as defined operated and administered in operational and documentary compliance with Section 501(c)(9) of the Code. For purposes of this Agreement, “ERISA Affiliate” means, with respect to any Person, any Person or entity (whether or not incorporated) that is under common control or treated as one employer under Section 4001(b)(1) of ERISA or Section 414(b), (c), (m) or (o) 409A of the Code.
(e) Neither the Company nor an ERISA Affiliate maintains, maintained or contributed to within the past five (5) years, any multiemployer plan, within the meaning of Section 3(37) or 4001(a)(3) of ERISA. Neither the Company nor an ERISA Affiliate currently has any Liability to make withdrawal Liability payments to any multiemployer plan.
(f) Each Benefit Plan can be amended, suspended or terminated at any time without the consent of any employees, participants, service providers, or insurance companies and without resulting in any Liability to Purchaser or its Affiliates for any additional contributions, penalties, premiums, fees, fines, excise taxes or any other charges or Liabilities.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (MedMen Enterprises, Inc.)
Benefit Plans. (ia) Set forth on Schedule 3.19(a4.19(a) is a true and complete list of each material Benefit Plan of the Purchaser and its Subsidiaries a Target Company (each, a “Purchaser Company Benefit Plan”). With respect to each Purchaser Company Benefit Plan, there are no material funded benefit obligations for which contributions have not been materially made or properly accrued and there are no material unfunded benefit obligations that have not been accounted for by reserves, or otherwise properly footnoted in accordance with GAAP on the Purchaser Company Financials. Except as set forth on Schedule 3.19(a), neither the Purchaser nor any Subsidiary No Target Company is or has in the past been a member of a “controlled group” for purposes of Section 414(b), (c), (m) or (o) of the Code other than with the Purchaser or another SubsidiaryCode, nor does the Purchaser or any Subsidiary Target Company have any Liability with respect to any collectively-bargained for plans, whether or not subject to the provisions of ERISA. No statement, either written or oral, has been made by any Target Company to any Person with regard to any Company Benefit Plan that was not in accordance with the Company Benefit Plan in any material respect.
(iib) Each Purchaser material Company Benefit Plan in all material respects is and has been operated at all times in compliance with all applicable Laws in all material respects, including ERISA and the Code. Each Purchaser Company Benefit Plan which is intended to be “qualified” within the meaning of Section 401(a) of the Code (i) has been determined by the IRS to be so qualified (or is based on a prototype plan which has received a favorable opinion letter) during the period from its adoption to the date of this Agreement and (ii) is funded through a its related trust has been determined to be exempt from taxation under Section 501(a) of the CodeCode or the Target Companies have requested an initial favorable IRS determination of qualification and/or exemption within the period permitted by applicable Law. To the Knowledge of the PurchaserCompany’s Knowledge, no fact exists which could would reasonably be expected to materially and adversely affect the qualified status of such Purchaser Company Benefit Plans or the exempt status of such trusts.
(iiic) With respect to each Purchaser Company Benefit PlanPlan which covers any current or former officer, director, consultant or employee (or beneficiary thereof) of a Target Company, the Company has provided to Purchaser has made available to the Seller accurate and complete copies, if applicable, of: (i) all Purchaser the current Company Benefit Plan documents and agreements and related currently effective trust agreements agreement or annuity Contracts Contract (including any amendments, modifications or supplements thereto); (ii) all the most recent summary plan descriptions and material modifications thereto; (iii) the three (3) most recent Forms 5500, if applicable, and annual report, including all schedules thereto; (iv) the most recent annual and periodic accounting of plan assets; (v) the three (3) most recent nondiscrimination testing reports; (vi) the most recent determination letter received from the IRS, if any; (vii) the most recent actuarial valuation; and (viii) all material written communications between the Purchaser or any Subsidiary or any Purchaser Benefit Plan and with any Governmental Authority and relating to a Purchaser Benefit Plan within six during the past three (63) years preceding the date of this Agreementyears.
(ivd) With respect to each Purchaser material Company Benefit Plan: (i) such Purchaser Company Benefit Plan has been administered and enforced in all material respects in accordance with its terms, the Code and ERISA; (ii) neither to the Purchaser nor any Subsidiary nor any employee, officer or director thereof that is a Company’s Knowledge no breach of fiduciary (under ERISA) with respect to such Purchaser Benefit Plan duty has breached any of its fiduciary responsibilities, obligations or duties imposed on it by ERISAoccurred; (iii) no Action is pending pending, or to the Company’s Knowledge, threatened in writing (other than routine claims for benefits arising in the ordinary course of administration); (iv) nothing has occurred with respect to any Purchaser Benefit Plan that has subjected the Purchaser or any Subsidiary to any material penalty under Company’s Knowledge no prohibited transaction, as defined in Section 502 406 of ERISA or Section 4975 of the Code, has occurred, excluding transactions effected pursuant to a statutory or administration exemption; and (v) all contributions and premiums due through the Closing Date have been made in all material respects as required under ERISA or have been fully accrued in all material respects on the Purchaser Company Financials.
(ve) No Purchaser Company Benefit Plan is, and neither the Purchaser or any Subsidiary or any of their respective ERISA Affiliates sponsors, maintains, contributes to, is required to contribute to, or otherwise has or could reasonably be expected to have any current or contingent Liability under or with respect to, a “defined benefit plan” (as defined in Section 414(j) of the Code), a “multiemployer plan” (as defined in Section 3(37) of ERISA) or a “multiple employer plan” (as described in Section 413(c) of the Code) or is otherwise subject to Title IV of ERISA or Section 412 of the Code, and no Target Company has any outstanding Liability under Title IV of ERISA and no condition presently exists that is expected to cause such Liability to be incurred. To the Purchaser’s Knowledge, no Purchaser No Company Benefit Plan will become a multiple employer plan with respect to any Purchaser Entity Target Company immediately after the Closing Date. Neither the Purchaser nor any Subsidiary No Target Company currently maintains or has ever maintained, or is required currently or has ever been required to contribute to or otherwise participate in, a multiple employer welfare arrangement or voluntary employees’ beneficiary association as defined in Section 501(c)(9) of the Code. For purposes of this Agreement, “ERISA Affiliate” means, .
(f) There is no arrangement under any Company Benefit Plan with respect to any Personemployee that would result in the payment of any amount that by operation of Sections 280G or 162(m) of the Code would not be deductible by the Target Companies and no arrangement exists pursuant to which a Target Company will be required to “gross up” or otherwise compensate any person because of the imposition of any excise tax on a payment to such person
(g) With respect to each Company Benefit Plan which is a “welfare plan” (as described in Section 3(1) of ERISA): (i) no such plan provides medical or death benefits with respect to current or former employees of a Target Company beyond their termination of employment (other than (A) coverage mandated by Law, which is paid solely by such employees, (B) benefits through the end of the month of termination of employment, to the extent provided under the terms of the applicable Company Benefit Plan and underlying insurance policy, (C) death or disability benefits attributable to deaths or disabilities occurring at or prior to termination of employment, and (D) conversion rights); and (ii) there are no reserves, assets, surplus or prepaid premiums under any such plan. Each Target Company has complied with the provisions of Section 601 et seq. of ERISA and Section 4980B of the Code in all material respects.
(h) The consummation of the transactions contemplated by this Agreement and the Ancillary Documents will not: (i) entitle any individual to severance pay, unemployment compensation or other benefits or compensation; (ii) accelerate the time of payment or vesting, or increase the amount of any compensation due, or in respect of, any Person individual; or entity (whether iii) result in or not incorporated) satisfy a condition to the payment of compensation that is would, in combination with any other payment, result in an “excess parachute payment” within the meaning of Section 280G of the Code. No Target Company has incurred any Liability for any Tax imposed under common control Chapter 43 of the Code or treated as one employer civil liability under Section 4001(b)(1) of ERISA or Section 414(b), (c), (m502(i) or (ol) of ERISA.
(i) Except to the extent required by Section 4980B of the Code or similar state Law, no Target Company provides health or welfare benefits to any former or retired employee or is obligated to provide such benefits to any active employee following such employee’s retirement or other termination of employment or service.
(j) All material Company Benefit Plans can be terminated at any time as of or after the Closing Date without resulting in any material Liability, excluding normal administrative costs, to the Surviving Corporation or Purchaser or their respective Affiliates.
(k) Each Company Benefit Plan that is subject to Section 409A of the Code (each, a “Section 409A Plan”) as of the Closing Date is indicated as such on Schedule 4.19(k). No Company Options or other equity-based awards have been issued or granted by the Company that are, or are subject to, a Section 409A Plan. Each Section 409A Plan has been administered in compliance, and is in documentary compliance, with the applicable provisions of Section 409A of the Code, the regulations thereunder and other official guidance issued thereunder. No Target Company has any obligation to any employee or other service provider with respect to any Section 409A Plan that may be subject to any Tax under Section 409A of the Code. No payment to be made under any Section 409A Plan is, or to the Knowledge of the Company will be, subject to the penalties of Section 409A(a)(1) of the Code. There is no Contract or plan to which any Target Company is a party or by which it is bound to compensate any employee, consultant or director for penalty taxes paid pursuant to Section 409A of the Code.
Appears in 1 contract
Benefit Plans. (i) Set forth on Schedule 3.19(aSection 3.2(j)(i) is of the Cousins Disclosure Letter contains a true true, complete and complete correct list of each material Benefit Plan sponsored, maintained or contributed by Cousins or any of the Purchaser and its Subsidiaries, or which Cousins or any of its Subsidiaries is obligated to sponsor, maintain or contribute to, other than any plan or program maintained by a Governmental Entity to which Cousins or its Subsidiaries contribute pursuant to applicable Law (each, a the “Purchaser Cousins Benefit PlanPlans”). With respect to each Purchaser No Cousins Benefit Plan, there are no funded benefit obligations for which contributions have not been materially made Plan is established or properly accrued and there are no material unfunded benefit obligations that have not been accounted for by reserves, or otherwise properly footnoted in accordance with GAAP on the Purchaser Financials. Except as set forth on Schedule 3.19(a), neither the Purchaser nor any Subsidiary or has in the past been a member of a “controlled group” for purposes of Section 414(b), (c), (m) or (o) maintained outside of the Code other than with United States or for the Purchaser benefit of current or another Subsidiary, nor does the Purchaser former employees of Cousins or any Subsidiary have any Liability with respect to any collectively-bargained for plans, whether or not subject to of its Subsidiaries residing outside of the provisions of ERISAUnited States.
(ii) Each Purchaser Cousins has delivered or made available to Parkway a true, correct and complete copy of each Cousins Benefit Plan and, with respect thereto, if applicable, (A) all amendments, trust (or other funding vehicle) agreements, summary plan descriptions and insurance contracts, (B) the most recent annual report (Form 5500 series including, where applicable, all schedules and actuarial and accountants’ reports) filed with the IRS and the most recent actuarial report or other financial statement relating to such Cousins Benefit Plan, (C) the most recent determination or opinion letter from the IRS for such Cousins Benefit Plan and (D) any notice to or from the IRS or any office or representative of the Department of Labor relating to any unresolved compliance issues in all material respects is and respect of such Cousins Benefit Plan.
(iii) Except as would not have, or would not reasonably be expected to have, individually or in the aggregate, a Cousins Material Adverse Effect, (A) each Cousins Benefit Plan has been operated maintained and administered in compliance with all its terms and with applicable Laws in all material respectsLaw, including ERISA and the Code. Each Purchaser Code and in each case the regulations thereunder, (B) each Cousins Benefit Plan which is intended to be “qualified” within the meaning of under Section 401(a) of the Code (i) has been determined by the IRS to be so qualified (or is based on a prototype plan which has received a favorable determination or opinion letter) during letter as to its qualification from the period from IRS or is entitled to rely on an advisory or opinion letter as to its adoption qualification issued with respect to the date of this Agreement an IRS approved master and (ii) is funded through a trust exempt from taxation under Section 501(a) of the Code. To the Knowledge of the Purchaserprototype or volume submitter plan, and there are no fact exists which could existing circumstances or any events that have occurred that would reasonably be expected to adversely affect the qualified status Table of Contents of any such Purchaser Benefit Plans plan, (C) neither Cousins nor its Subsidiaries has engaged in a transaction that has resulted in, or could result in, the exempt status assessment of such trusts.
a civil penalty upon Cousins or any of its Subsidiaries pursuant to Section 502(i) of ERISA or a tax imposed pursuant to Section 4975 or 4976 of the Code that has not been satisfied in full, (iiiD) With there does not now exist, nor do any circumstances exist that would reasonably be expected to result in, any Controlled Group Liability that would be a liability of Cousins or any of its Subsidiaries, (E) all payments required to be made by or with respect to each Purchaser Benefit Plan, the Purchaser has made available to the Seller accurate and complete copies, if applicable, of: (i) all Purchaser Cousins Benefit Plan documents and agreements and related trust agreements or annuity Contracts (including any amendmentsall contributions, modifications insurance premiums or supplements thereto); (ii) all summary plan descriptions and material modifications thereto; (iii) the three (3) most recent Forms 5500, if applicable, and annual report, including all schedules thereto; (iv) the most recent annual and periodic accounting of plan assets; (v) the three (3) most recent nondiscrimination testing reports; (vi) the most recent determination letter received from the IRS, if any; (vii) the most recent actuarial valuation; and (viii) all material written communications between the Purchaser or any Subsidiary or any Purchaser Benefit Plan and any Governmental Authority and relating to a Purchaser Benefit Plan within six (6) years preceding the date of this Agreement.
(iv) With respect to each Purchaser Benefit Plan: (i) such Purchaser Benefit Plan has been administered and enforced in all material respects in accordance with its terms, the Code and ERISA; (ii) neither the Purchaser nor any Subsidiary nor any employee, officer or director thereof that is a fiduciary (under ERISAintercompany charges) with respect to such Purchaser all prior periods have been timely made or paid by Cousins or its Subsidiaries in accordance with the provisions of each of the Cousins Benefit Plans and applicable Law and (F) there are no pending or, to Cousins’s knowledge, threatened claims by or on behalf of any Cousins Benefit Plan, by any employee or beneficiary covered under any Cousins Benefit Plan has breached or otherwise involving any of its fiduciary responsibilities, obligations or duties imposed on it by ERISA; (iii) no Action is pending or threatened in writing Cousins Benefit Plan (other than routine claims for benefits arising in the ordinary course of administrationbenefits); (iv) nothing has occurred with respect to any Purchaser Benefit Plan that has subjected the Purchaser or any Subsidiary to any material penalty under Section 502 of ERISA or Section 4975 of the Code; and (v) all contributions and premiums due through the Closing Date have been made in all material respects as required under ERISA or have been fully accrued in all material respects on the Purchaser Financials.
(v) No Purchaser Benefit Plan is, and neither the Purchaser or any Subsidiary or any of their respective ERISA Affiliates sponsors, maintains, contributes to, is required to contribute to, or otherwise has or could reasonably be expected to have any current or contingent Liability under or with respect to, a “defined benefit plan” (as defined in Section 414(j) of the Code), a “multiemployer plan” (as defined in Section 3(37) of ERISA) or a “multiple employer plan” (as described in Section 413(c) of the Code) or is otherwise subject to Title IV of ERISA or Section 412 of the Code. To the Purchaser’s Knowledge, no Purchaser Benefit Plan will become a multiple employer plan with respect to any Purchaser Entity immediately after the Closing Date. Neither the Purchaser nor any Subsidiary currently maintains or has ever maintained, or is required currently or has ever been required to contribute to or otherwise participate in, a multiple employer welfare arrangement or voluntary employees’ beneficiary association as defined in Section 501(c)(9) of the Code. For purposes of this Agreement, “ERISA Affiliate” means, with respect to any Person, any Person or entity (whether or not incorporated) that is under common control or treated as one employer under Section 4001(b)(1) of ERISA or Section 414(b), (c), (m) or (o) of the Code.
Appears in 1 contract
Benefit Plans. (ia) Set forth on Schedule 3.19(a) is a true and complete list of each material Benefit Plan of the Purchaser and its Subsidiaries (each, a “Purchaser Benefit Plan”). With respect to each Purchaser Benefit Plan, there are no funded benefit obligations for which contributions have not been materially made or properly accrued and there are no material unfunded benefit obligations that have not been accounted for by reserves, or otherwise properly footnoted in accordance with GAAP on the Purchaser Financials. Except as set forth on Schedule 3.19(a), neither the Purchaser Neither Parent nor any Subsidiary or has in the past been a member ERISA Affiliate of a “controlled group” for purposes of Section 414(b), (c), (m) or (o) of the Code other than with the Purchaser or another Subsidiary, nor does the Purchaser or any Subsidiary have any Liability with respect to any collectively-bargained for plans, whether or not subject to the provisions of ERISA.
(ii) Each Purchaser Benefit Plan in all material respects is and has been operated in compliance with all applicable Laws in all material respects, including ERISA and the Code. Each Purchaser Benefit Plan which is intended to be “qualified” within the meaning of Section 401(a) of the Code (i) has been determined by the IRS to be so qualified (or is based on a prototype plan which has received a favorable opinion letter) during the period from its adoption to the date of this Agreement and (ii) is funded through a trust exempt from taxation under Section 501(a) of the Code. To the Knowledge of the Purchaser, no fact exists which could adversely affect the qualified status of such Purchaser Benefit Plans or the exempt status of such trusts.
(iii) With respect to each Purchaser Benefit Plan, the Purchaser has made available to the Seller accurate and complete copies, if applicable, of: (i) all Purchaser Benefit Plan documents and agreements and related trust agreements or annuity Contracts (including any amendments, modifications or supplements thereto); (ii) all summary plan descriptions and material modifications thereto; (iii) the three (3) most recent Forms 5500, if applicable, and annual report, including all schedules thereto; (iv) the most recent annual and periodic accounting of plan assets; (v) the three (3) most recent nondiscrimination testing reports; (vi) the most recent determination letter received from the IRS, if any; (vii) the most recent actuarial valuation; and (viii) all material written communications between the Purchaser or any Subsidiary or any Purchaser Benefit Plan and any Governmental Authority and relating to a Purchaser Benefit Plan within six (6) years preceding the date of this Agreement.
(iv) With respect to each Purchaser Benefit Plan: (i) such Purchaser Benefit Plan has been administered and enforced in all material respects in accordance with its terms, the Code and ERISA; (ii) neither the Purchaser nor any Subsidiary nor any employee, officer or director thereof that is a fiduciary (under ERISA) with respect to such Purchaser Benefit Plan has breached any of its fiduciary responsibilities, obligations or duties imposed on it by ERISA; (iii) no Action is pending or threatened in writing (other than routine claims for benefits arising in the ordinary course of administration); (iv) nothing has occurred with respect to any Purchaser Benefit Plan that has subjected the Purchaser or any Subsidiary to any material penalty under Section 502 of ERISA or Section 4975 of the Code; and (v) all contributions and premiums due through the Closing Date have been made in all material respects as required under ERISA or have been fully accrued in all material respects on the Purchaser Financials.
(v) No Purchaser Benefit Plan is, and neither the Purchaser or any Subsidiary or any of their respective ERISA Affiliates Parent sponsors, maintains, contributes to, is required to contribute to, to or otherwise has or could reasonably be expected to have any current liability of any nature, whether known or contingent Liability under unknown, direct or indirect, fixed or contingent, with respect to, a “defined benefit plan” (as defined in Section 414(j) of the Code), a “multiemployer plan” (as defined in Section 3(37) of ERISA) or a “multiple employer plan” (as described in Section 413(c) of the Code) or any Pension Plan that is otherwise subject to Title IV of ERISA or is a "Multiemployer Plan" within the meaning of Section 412 3(37) or 4001(a)(3) of ERISA.
(b) Each Benefit Plan sponsored by Parent or an ERISA Affiliate of Parent has been operated in all material respects in accordance with its terms and in compliance in all material respects with the applicable provisions of all Applicable Law.
(c) Parent has properly determined and timely collected and reported all FICA taxes imposed under Sections 3101 and 3111 of the Code on remuneration for employment that constitutes "wages" within the meaning of Section 3121(a) of the Code. To , including amounts of deferred compensation under nonqualified deferred compensation plans, agreements or arrangements.
(d) There will be no change on or before Closing Date in the Purchaser’s Knowledge, no Purchaser operation of any Parent Benefit Plan or any documents with respect thereto which will become a multiple employer plan result in an increase in the benefit liabilities under such Benefit Plans, except as may be required by Applicable Law.
(e) Parent and each ERISA Affiliate of Parent have timely complied in all material respects with all reporting and disclosure obligations with respect to the Benefit Plans imposed by the Code, ERISA or other Applicable Law.
(f) There are no pending or, to the knowledge of Parent, threatened claims, suits, audits or proceedings against Parent or any Purchaser Entity immediately after other party by present or former employees of Parent, Benefit Plan participants (or their beneficiaries, spouses or dependents), including, without limitation, claims against the Closing Date. Neither the Purchaser nor assets of any Subsidiary currently maintains or has ever maintainedtrust, involving any Benefit Plan, or any rights or benefits thereunder, other than the ordinary and usual claims for benefits by participants or beneficiaries.
(g) The transactions contemplated herein do not result in any payment (whether of severance pay or otherwise), forgiveness of debt, distribution, increase in benefits, obligation to fund, or the acceleration of accrual, vesting, funding or payment of any contribution or benefit under any Parent Benefit Plan.
(h) No employer other than Parent and/or an ERISA Affiliate of Parent is required currently permitted to participate or has ever been required to contribute to or otherwise participate in, a multiple employer welfare arrangement or voluntary employees’ beneficiary association participates in the Parent Benefit Plans. No leased employees (as defined in Section 501(c)(9414(n) of the Code) or independent contractors are eligible for, or participate in, any Parent Benefit Plans.
(i) Parent has made available to the Company true and complete copies of all Parent Benefit Plan documents and related trust agreements or other agreements or contracts evidencing any funding vehicle with respect thereto, including all amendments. For purposes of this AgreementParent has made available to the Company true and complete copies of:
(i) the three most recent annual reports on Treasury Form 5500, “ERISA Affiliate” meansincluding all schedules and attachments thereto, with respect to any Person, Benefit Plan for which such a report is required;
(ii) the three most recent actuarial reports with respect to any Person or entity (whether or not incorporated) Pension Plan that is under common control or treated as one employer under a "defined benefit plan" within the meaning of Section 4001(b)(1) of ERISA or Section 414(b), (c), (m) or (o414(j) of the Code;
(iii) the form of summary plan description, including any summary of material modifications thereto or other modifications communicated to participants, currently in effect with respect to each Benefit Plan;
(iv) the most recent determination letter with respect to each Pension Plan intended to qualify under Section 401(a) of the Code and the full and complete application therefor submitted to the Internal Revenue Service; and
(v) all professional opinions, material internal memoranda, material correspondence with regulatory authorities (such as a copy of all documents relating to a voluntary correction submission with the Department of Labor or the IRS) and administrative policies, manuals, interpretations and the like with respect to each Benefit Plan.
(j) Parent has delivered or made available to the Company true and correct copies of the Welfare Plan documents establishing compliance with the HIPAA Privacy and Security Regulations, including appointment of a privacy official, its Notice of HIPAA Privacy Practices, privacy policies and procedures, and the plan administrator's Group Health Plan document amendment certification.
Appears in 1 contract
Benefit Plans. (ia) Set forth Each 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 3.19(a4.14(a) is a true and complete list of each material (such plans, collectively, the “Sellers’ Benefit Plan of the Purchaser and its Subsidiaries (each, a “Purchaser Benefit PlanPlans”). With respect to each Purchaser Benefit Plan, there are no funded benefit obligations for which contributions have not been materially made or properly accrued and there are no material unfunded benefit obligations that have not been accounted for by reserves, or otherwise properly footnoted in accordance with GAAP on the Purchaser Financials. Except as set forth on Schedule 3.19(a), neither the Purchaser nor any Subsidiary or has in the past been a member of a “controlled group” for purposes of Section 414(b), (c), (m) or (o) of the Code other than with the Purchaser or another Subsidiary, nor does the Purchaser or any Subsidiary have any Liability with respect to any collectively-bargained for plans, whether or not subject to the provisions of ERISA.
(ii) Each Purchaser Benefit Plan in all material respects is and has been operated in compliance with all applicable Laws in all material respects, including ERISA and the Code. Each Purchaser Benefit Plan which is intended to be “qualified” within the meaning of Section 401(a) of the Code (i) has been determined by the IRS to be so qualified (or is based on a prototype plan which has received a favorable opinion letter) during the period from its adoption to the date of this Agreement and (ii) is funded through a trust exempt from taxation under Section 501(a) of the Code. To the Knowledge of the Purchaser, no fact exists which could adversely affect the qualified status of such Purchaser Benefit Plans or the exempt status of such trusts.
(iiib) With respect to each Purchaser of the Sellers’ Benefit PlanPlans that is material, the Purchaser Company has made available to the Seller accurate Buyer true and complete copies, if applicable, of: copies of (i) all Purchaser with respect to such a plan that is sponsored or maintained on behalf of a U.S. Employee, the Benefit Plan documents and agreements and related trust agreements or annuity Contracts document (including any amendments, modifications or supplements all amendments thereto); , (ii) all summary with respect to such a plan descriptions and material modifications thereto; 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 three (3) most recent Forms 5500, if applicable, and annual report, including all schedules thereto; (iv) the most recent annual and periodic accounting of summary plan assets; (v) the three (3) most recent nondiscrimination testing reports; (vi) the most recent determination letter received from the IRS, if any; (vii) the most recent actuarial valuation; and (viii) all material written communications between the Purchaser or any Subsidiary or any Purchaser description used in connection with such Benefit Plan and any Governmental Authority material modifications thereto (if applicable), and relating (iv) with respect to a Purchaser Benefit Plan within six (6) years preceding the date of this AgreementCompany Retirement Plan, the most recent IRS determination letter.
(iv) With respect to each Purchaser Benefit Plan: (i) such Purchaser Benefit Each Assumed Plan has been maintained, funded and administered and enforced in all material respects in accordance with its termsterms and all applicable Laws, the Code and ERISA; (ii) neither the Purchaser nor any Subsidiary nor any employee, officer or director thereof that is a fiduciary (under ERISA) with respect all contributions required to such Purchaser Benefit Plan has breached any of its fiduciary responsibilities, obligations or duties imposed on it by ERISA; (iii) no Action is pending or threatened in writing (other than routine claims for benefits arising in the ordinary course of administration); (iv) nothing has occurred be made with respect to any Purchaser Benefit Assumed Plan that has subjected on or before the Purchaser or any Subsidiary to any material penalty under Section 502 of ERISA or Section 4975 of the Code; and (v) all contributions and premiums due through the Closing Date date hereof have been made in all material respects as required under ERISA or or, if not yet due, have been fully accrued properly reflected in all material respects on the Purchaser Financials.
(v) No Purchaser Benefit Plan isfinancial statements prior to the date of this Agreement, other than any contributions that are not material, and neither (iii) to the Purchaser or Company’s Knowledge, no event has occurred and no condition exists in connection with any Subsidiary or any of their respective ERISA Affiliates sponsors, maintains, contributes to, is required to contribute to, or otherwise has or Assumed Plan that could reasonably be expected to have subject the Buyer to any current Tax, fine, encumbrance, penalty or contingent other similar Liability under as a result of a failure to comply with any applicable Laws except as would not reasonably be expected to result in material liability to the Buyer, to the extent of such accruals, the Company has no material liability arising out of or in connection with respect tothe form or operation of the Seller’s Benefit Plans or benefits accrued thereunder on or prior to the Closing Date.
(d) Each Assumed Plan, employment agreement, or other contract, plan, program, agreement, or arrangement that is a “defined benefit nonqualified deferred compensation plan” (as defined in within the meaning of Section 414(j) of the Code), a “multiemployer plan” (as defined in Section 3(37) of ERISA) or a “multiple employer plan” (as described in Section 413(c409A(d)(1) of the Code) or is otherwise subject to Title IV of ERISA or has been operated in good faith compliance with Section 412 409A of the Code. To , its Treasury regulations, and any administrative guidance relating thereto; and no additional tax under Section 409A(a)(1)(B) of the Purchaser’s Knowledge, no Purchaser Benefit Plan will become Code has been or is reasonably expected to be incurred by a multiple employer plan with respect to participant in any Purchaser Entity immediately after the Closing Datesuch Assumed Plan. Neither the Purchaser Company nor any Subsidiary currently maintains or has ever maintainedSeller is a party to, or is required currently or has ever been required to contribute to or otherwise participate in, a multiple employer welfare arrangement or voluntary employees’ beneficiary association as defined in Section 501(c)(9) of the Code. For purposes of this Agreement, “ERISA Affiliate” means, with respect to any Personobligated under, any Person Contract, agreement, plan or entity (whether or not incorporated) arrangement with any Transferred Employee that is under common control or treated as one employer under provides for the gross-up of taxes imposed by Section 4001(b)(1) of ERISA or Section 414(b), (c), (m) or (o409A(a)(1)(B) of the Code.
(e) No actions, suits or claims (other than claims for benefits in the ordinary course) are pending or, to the Company’s Knowledge, threatened with respect to any Assumed Plan.
(f) Except for the Transaction Bonus Arrangements, there are no arrangements or agreements pursuant to which any Employee is entitled to be paid a bonus or other compensation upon or immediately following the Closing solely as a result of the Closing of the Contemplated Transactions, other than (i) payments for accrued vacation, (ii) payments under any Seller Benefit Plan which is 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 Closing of the Contemplated Transactions).
Appears in 1 contract
Benefit Plans. (ia) Set forth on Schedule 3.19(a6.19(a) is a true and complete list of each material Benefit Plan of the Purchaser and its Subsidiaries a Target Company (each, a “Purchaser Company Benefit Plan”). With respect to each Purchaser Company Benefit Plan, there are no funded benefit obligations for which contributions have not been materially made or properly accrued and there are no material unfunded benefit obligations that have not been accounted for by reserves, or otherwise properly footnoted in accordance with GAAP on the Purchaser FinancialsCompany Financial Statements. Except as set forth on Schedule 3.19(a), neither the Purchaser nor any Subsidiary No Target Company is or has in the past been a member of a “controlled group” for purposes of Section 414(b), (c), (m) or (o) of the Code other than with the Purchaser or another SubsidiaryCode, nor does the Purchaser or any Subsidiary Target Company have any Liability with respect to any collectively-bargained for plans, whether or not subject to the provisions of ERISA. No statement, either written or oral, has been made by any Target Company to any Person with regard to any Company Benefit Plan that was not in accordance with the Company Benefit Plan. No Target Company, nor any entity that together with any Target Company is a “single employer” for purposes of Section 4001(b)(1) of ERISA or Sections 414(b), (c), (m) or (o) of the Code, has ever established, maintained, contributed to, or has or had any Liability with respect to (or had an obligation to contribute to) any Benefit Plan that is not a Non-U.S. Benefit Plan.
(iib) Each Purchaser Company Benefit Plan in all material respects is and has been operated at all times in compliance with all applicable Laws in all material respects, including ERISA and the Code. Each Purchaser Benefit Plan which is intended to be “qualified” within the meaning of Section 401(a) of the Code (i) has been determined by the IRS to be so qualified (or is based on a prototype plan which has received a favorable opinion letter) during the period from its adoption to the date of this Agreement and (ii) is funded through a trust exempt from taxation under Section 501(a) of the Code. To the Knowledge of the Purchaser, no fact exists which could adversely affect the qualified status of such Purchaser Benefit Plans or the exempt status of such trusts.
(iiic) With respect to each Purchaser Company Benefit PlanPlan which covers any current or former officer, director, consultant or employee (or beneficiary thereof) of a Target Company, the Company has provided to Purchaser has made available to the Seller accurate and complete copies, if applicable, of: (i) all Purchaser Company Benefit Plan documents texts and agreements and related trust agreements or annuity Contracts (including any amendments, modifications or supplements thereto); (ii) all summary plan descriptions and material modifications thereto; and (iii) the three (3) most recent Forms 5500, if applicable, and annual report, including all schedules thereto; (iv) the most recent annual and periodic accounting of plan assets; (v) the three (3) most recent nondiscrimination testing reports; (vi) the most recent determination letter received from the IRS, if any; (vii) the most recent actuarial valuation; and (viii) all material written communications between the Purchaser or any Subsidiary or any Purchaser Benefit Plan and with any Governmental Authority and relating to a Purchaser Benefit Plan within six (6) years preceding the date of this AgreementAuthority.
(ivd) With respect to each Purchaser Company Benefit Plan: (i) such Purchaser Company Benefit Plan has been administered and enforced in accordance with its terms and the requirements of all applicable Laws, and has been maintained, where required, in good standing in all material respects in accordance with its terms, the Code applicable regulatory authorities and ERISAGovernmental Authorities; (ii) neither the Purchaser nor no breach of fiduciary duty that would result in material Liability to any Subsidiary nor any employee, officer or director thereof that is a fiduciary (under ERISA) with respect to such Purchaser Benefit Plan Target Company has breached any of its fiduciary responsibilities, obligations or duties imposed on it by ERISAoccurred; (iii) no Action is pending pending, or to the Company’s Knowledge, threatened in writing (other than routine claims for benefits arising in the ordinary course of administration); (iv) nothing has occurred with respect to any Purchaser Benefit Plan that has subjected the Purchaser or any Subsidiary to any material penalty under Section 502 of ERISA or Section 4975 of the Code; and (v) all contributions and premiums due through the Closing Date have been made in all material respects as required under ERISA or have been fully accrued in all material respects on the Purchaser Financials.
(ve) No Purchaser Benefit Plan isThe consummation of the transactions contemplated by this Agreement and the Ancillary Documents will not: (i) entitle any individual to severance pay, and neither unemployment compensation or other benefits or compensation; or (ii) accelerate the Purchaser time of payment or any Subsidiary or any of their respective ERISA Affiliates sponsors, maintains, contributes to, is required to contribute tovesting, or otherwise has increase the amount of any compensation due, or could reasonably be expected in respect of, any director, employee or independent contractor of a Target Company.
(f) Except to have the extent required by applicable Law, no Target Company provides health or welfare benefits to any current former or contingent Liability under or with respect to, a “defined benefit plan” (as defined in Section 414(j) of the Code), a “multiemployer plan” (as defined in Section 3(37) of ERISA) or a “multiple employer plan” (as described in Section 413(c) of the Code) retired employee or is otherwise subject obligated to Title IV of ERISA or Section 412 of the Code. To the Purchaser’s Knowledge, no Purchaser Benefit Plan will become a multiple employer plan with respect provide such benefits to any Purchaser Entity immediately after the Closing Date. Neither the Purchaser nor any Subsidiary currently maintains active employee following such employee’s retirement or has ever maintained, other termination of employment or is required currently or has ever been required to contribute to or otherwise participate in, a multiple employer welfare arrangement or voluntary employees’ beneficiary association as defined in Section 501(c)(9) of the Code. For purposes of this Agreement, “ERISA Affiliate” means, with respect to any Person, any Person or entity (whether or not incorporated) that is under common control or treated as one employer under Section 4001(b)(1) of ERISA or Section 414(b), (c), (m) or (o) of the Codeservice.
Appears in 1 contract
Samples: Business Combination Agreement (Tristar Acquisition I Corp.)
Benefit Plans. (ia) Set Section 3.17(a) of the Seller Disclosure Letter sets forth on Schedule 3.19(a) is a true and complete list list, as of the date of this Agreement, of each material Benefit Plan individual employment, retention, indemnification, severance, change of control and consulting agreement with any employee of the Purchaser Business to which Seller is a party, each “employee benefit plan” within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”) and its Subsidiaries each severance, retention, employment, consulting, “change of control”, bonus, incentive (eachequity-based, a “Purchaser Benefit Plan”equity-related or otherwise). With respect to , deferred compensation, employee loan, welfare benefit, fringe benefit and other benefit plan, agreement, program, policy, commitment or other arrangement, in each Purchaser Benefit Plancase sponsored, there are no funded benefit obligations for which contributions have not been materially made maintained or properly accrued and there are no material unfunded benefit obligations that have not been accounted for by reservescontributed to, or otherwise properly footnoted in accordance required to be sponsored, maintained or contributed to, by Seller or any other person that, together with GAAP on the Purchaser Financials. Except Seller, is treated as set forth on Schedule 3.19(a), neither the Purchaser nor any Subsidiary or has in the past been a member of a “controlled group” for purposes of single employer under Section 414(b), (c), (m) or (o) of the Code other than (each, a “Commonly Controlled Entity”), or with respect to which Seller or any Commonly Controlled Entity has any liability, in each case providing any compensation or benefits to any employee of the Purchaser Business (each such arrangement described in this sentence is referred to herein as a “Seller Benefit Plan”). Each Seller Benefit Plan or another Subsidiary, nor does the portion thereof that Purchaser or any Subsidiary have of its affiliates has explicitly agreed to assume pursuant to this Agreement is referred to herein as an “Assumed Benefit Plan”. Seller has (A) delivered to Purchaser true, complete and correct copies of each Assumed Benefit Plan (or, in the case of any Liability unwritten Assumed Benefit Plans, written descriptions thereof), and (B) will deliver promptly upon Purchaser’s request true and complete copies of (i) any related trust agreement or funding instrument with respect to any collectively-bargained for plansAssumed Benefit Plan, whether (ii) the most recent annual report on Form 5500 (including all schedules and attachments thereto) filed with the Internal Revenue Service (“IRS”) with respect to each Assumed Benefit Plan (if any such report was required by Applicable Laws) and (iii) the most recent IRS determination or not subject opinion letter, if applicable, with respect to each Assumed Benefit Plan. Table of Contents
(b) Each Assumed Benefit Plan has been administered in accordance with its terms and in compliance with the applicable provisions of ERISA.
(ii) Each Purchaser Benefit Plan in , the Code, all material respects is other Applicable Laws and has been operated in compliance with the terms of all applicable Laws collective bargaining agreements, in each case in all material respects. Neither Parent nor Seller has received written notice of any pending or in progress, including ERISA and and, to the Code. Each Purchaser knowledge of Parent or Seller, there are no threatened (A) investigations by any Governmental Entity, termination proceedings or other claims with respect to any Assumed Benefit Plan which is (except routine claims for benefits payable under the Assumed Benefit Plans) or (B) litigation against or involving any Assumed Benefit Plan or asserting any rights to or claims for benefits under any Assumed Benefit Plan. The Seller 401(k) Plan and corresponding trust intended to be “qualified” within the meaning of Section qualified under Sections 401(a) and 501(a) of the Code (i) has been determined by the IRS to be so qualified (or is based on a prototype plan which has have received a favorable opinion letterdetermination letter from the IRS (or an application is pending) during the period from its adoption as to the date of this Agreement their qualification under Sections 401(a) and (ii) is funded through a trust exempt from taxation under Section 501(a) of the Code. To the Knowledge of the Purchaser, no fact exists which could adversely affect the qualified status of such Purchaser Benefit Plans or the exempt status of such trusts.
(iii) With respect to each Purchaser Benefit Planand, the Purchaser has made available to the Seller accurate and complete copies, if applicable, of: (i) all Purchaser Benefit Plan documents and agreements and related trust agreements or annuity Contracts (including any amendments, modifications or supplements thereto); (ii) all summary plan descriptions and material modifications thereto; (iii) the three (3) most recent Forms 5500, if applicable, and annual report, including all schedules thereto; (iv) the most recent annual and periodic accounting of plan assets; (v) the three (3) most recent nondiscrimination testing reports; (vi) the most recent determination letter received from the IRS, if any; (vii) the most recent actuarial valuation; and (viii) all material written communications between the Purchaser or any Subsidiary or any Purchaser Benefit Plan and any Governmental Authority and relating to a Purchaser Benefit Plan within six (6) years preceding the date of this Agreement.
(iv) With respect to each Purchaser Benefit Plan: (i) such Purchaser Benefit Plan has been administered and enforced in all material respects in accordance with its terms, the Code and ERISA; (ii) neither the Purchaser nor any Subsidiary nor any employee, officer or director thereof that is a fiduciary (under ERISA) with respect to such Purchaser Benefit Plan has breached any of its fiduciary responsibilities, obligations or duties imposed on it by ERISA; (iii) no Action is pending or threatened in writing (other than routine claims for benefits arising in the ordinary course of administration); (iv) nothing has occurred with respect to any Purchaser Benefit Plan that has subjected the Purchaser or any Subsidiary to any material penalty under Section 502 of ERISA or Section 4975 of the Code; and (v) all contributions and premiums due through the Closing Date have been made in all material respects as required under ERISA or have been fully accrued in all material respects on the Purchaser Financials.
(v) No Purchaser Benefit Plan is, and neither the Purchaser or any Subsidiary or any of their respective ERISA Affiliates sponsors, maintains, contributes to, is required to contribute to, or otherwise has or could would reasonably be expected to have any current cause the Seller 401(k) Plan or contingent Liability corresponding trust to fail to qualify under Section 401(a) or with respect to, a “defined benefit plan” (as defined in Section 414(j501(a) of the Code), a “multiemployer plan” .
(as defined in Section 3(37c) of ERISA) or a “multiple employer plan” (as described in Section 413(c) of the Code) or No Seller Benefit Plan is otherwise subject to Title IV W of ERISA or Section 412 of the Code. To the Purchaser’s Knowledge, no Purchaser Benefit Plan will become Code or is otherwise a multiple employer plan with respect to any Purchaser Entity immediately after the Closing Datedefined benefit pension plan. Neither the Purchaser nor any Subsidiary currently maintains of its affiliates will incur any liability under Section 302 of ERISA, Title IV of ERISA, Section 412 of the Code or has ever maintainedthe Coal Industry Retiree Health Benefit Act of 1992, as amended, in each case, in connection with the Acquisition or any of the other transactions contemplated by this Agreement or the Ancillary Agreements. All payments, benefits, contributions and premiums relating to each Assumed Benefit Plan have been timely paid or made in accordance with the terms of such Assumed Benefit Plan and the terms of all Applicable Laws or have been accrued in accordance with GAAP.
(d) (A) No Assumed Benefit Plan (i) provides for deferred compensation, (ii) provides any welfare benefits (other than on a self-pay basis) following termination of service or employment or (iii) is required currently or has ever been required to contribute to or otherwise participate in, a “multiple employer welfare arrangement or voluntary employees’ beneficiary association arrangement” (as defined in Section 501(c)(93(40) of ERISA) and (B) no employee of the Business (i) has received any loan from Parent or Seller that has an outstanding balance, (ii) has a right, contingent or otherwise, to receive any guaranteed bonus (including any retention bonus) from Parent or Seller, (iii) has the right to receive any severance or separation pay or benefits from Parent or Seller, (iv) could reasonably be expected to receive any payment or benefit from Seller or any of its affiliates that would not be deductible to Purchaser as a result of Section 280G of the Code. For purposes , (v) is entitled to any tax indemnification or tax gross-up from the Parent or Seller or (vi) is, or at any time will become, entitled to any payment, benefit or right, or any increased and/or accelerated payment, benefit or right, as a result of (x) such employee’s termination of employment with, or services to Seller or (y) the execution of this Agreement, “ERISA Affiliate” means, with respect to any Person, any Person Agreement or entity (whether or not incorporated) that is under common control or treated as one employer under Section 4001(b)(1) of ERISA or Section 414(b), (c), (m) or (o) the consummation of the Code.transactions contemplated by this Agreement. Table of Contents
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Benefit Plans. (ia) Set forth on Schedule 3.19(a4.19(a) is a true and complete list of each material Benefit Plan of the Purchaser and its Subsidiaries a Target Company (each, a “Purchaser Company Benefit Plan”). With respect to each Purchaser Company Benefit Plan, there are no funded benefit obligations for which contributions have not been materially made or properly accrued and there are no material unfunded benefit obligations that have not been accounted for by reserves, or otherwise properly footnoted in accordance with GAAP on the Purchaser Company Financials. Except as set forth on Schedule 3.19(a), neither the Purchaser nor any Subsidiary No Target Company is or has in the past been a member of a “controlled group” for purposes of Section 414(b), (c), (m) or (o) of the Code other than with the Purchaser or another SubsidiaryCode, nor does the Purchaser or any Subsidiary Target Company have any Liability with respect to any collectively-bargained for plans, whether or not subject to the provisions of ERISA.
(iib) Each Purchaser Company Benefit Plan in all material respects is and has been operated operated, administered, and funded at all times in compliance with all applicable Laws in all material respects, including including, but not limited to, ERISA and the Code. Each Purchaser Company Benefit Plan which is intended to be “qualified” within the meaning of Section 401(a) of the Code (i) has been determined by the IRS to be so qualified (or is based on a prototype plan which has received a favorable opinion letter) during the period from its adoption to the date of this Agreement and (ii) is funded through a its related trust has been determined to be exempt from taxation under Section 501(a) of the CodeCode or the Target Companies have requested an initial favorable IRS determination of qualification and/or exemption within the period permitted by applicable Law. To the Knowledge of the PurchaserCompany’s Knowledge, no fact exists which could adversely affect the qualified status of such Purchaser Company Benefit Plans or the exempt status of such trusts.
(iiic) With respect to each Purchaser Company Benefit PlanPlan which covers any current or former officer, director, consultant or employee (or beneficiary thereof) of a Target Company, the Company has provided to Purchaser has made available to the Seller accurate and complete copies, if applicable, of: (i) all Purchaser Company Benefit Plan documents and agreements and related trust agreements or annuity Contracts (including any amendments, modifications or supplements thereto); (ii) all summary plan descriptions and summary of material modifications thereto; (iii) the three (3) most recent Forms 5500, if applicable, and annual report, including all schedules thereto; (iv) the most recent annual and periodic accounting of plan assets; (v) the three (3) most recent nondiscrimination testing reports; (vi) the most recent determination letter received from the IRS, if any; (vii) the most recent actuarial valuation; and (viii) all material written communications between the Purchaser or any Subsidiary or any Purchaser Benefit Plan and with any Governmental Authority and relating to a Purchaser Benefit Plan within six the last three (63) years preceding the date of this Agreementyears.
(ivd) With respect to each Purchaser Company Benefit Plan: (i) such Purchaser Company Benefit Plan has been administered and enforced in all material respects in accordance with its terms, the Code and ERISA; (ii) neither the Purchaser nor any Subsidiary nor any employee, officer or director thereof that is a no breach of fiduciary (under ERISA) with respect to such Purchaser Benefit Plan duty has breached any of its fiduciary responsibilities, obligations or duties imposed on it by ERISAoccurred; (iii) no Action is pending pending, or to the Company’s Knowledge, threatened in writing (other than routine claims for benefits arising in the ordinary course of administration); (iv) nothing has occurred with respect to any Purchaser Benefit Plan that has subjected the Purchaser or any Subsidiary to any material penalty under no prohibited transaction, as defined in Section 502 406 of ERISA or Section 4975 of the Code, has occurred, excluding transactions effected pursuant to a statutory or administration exemption; and (v) all contributions and premiums due through the Closing Date have been made in all material respects as required under ERISA or have been fully accrued in all material respects on the Purchaser Company Financials.
(ve) No Purchaser Company Benefit Plan is, and neither the Purchaser or any Subsidiary or any of their respective ERISA Affiliates sponsors, maintains, contributes to, is required to contribute tocurrently, or otherwise has or could is reasonably be expected to have any current or contingent Liability under or with respect tobecome, a “defined benefit plan” (as defined in Section 414(j) of the Code), a “multiemployer plan” (as defined in Section 3(37) of ERISA) or a “multiple employer plan” (as described in Section 413(c) of the Code) or is otherwise subject to Title IV of ERISA or Section 412 of the Code, and no Target Company has incurred any Liability or otherwise could have any Liability, contingent or otherwise, under Title IV of ERISA and no condition presently exists that is expected to cause such Liability to be incurred. To the Purchaser’s Knowledge, no Purchaser No Company Benefit Plan will become a multiple employer plan with respect to any Purchaser Entity Target Company immediately after the Closing Date. Neither the Purchaser nor any Subsidiary No Target Company currently maintains or has ever maintained, or is required currently or has ever been required to contribute to or otherwise participate in, a multiple employer welfare arrangement or voluntary employees’ beneficiary association as defined in Section 501(c)(9) of the Code.
(f) No arrangement exists pursuant to which a Target Company will be required to “gross up” or otherwise compensate any person because of the imposition of any excise Tax on a payment to such person.
(g) With respect to each Company Benefit Plan which is a “welfare plan” (as described in Section 3(1) of ERISA): (i) no such plan provides medical or death benefits with respect to current or former employees of a Target Company beyond their termination of employment (other than coverage mandated by Law, which is paid solely by such employees); and (ii) there are no reserves, assets, surplus or prepaid premiums under any such plan. For purposes Each Target Company has complied in all material respects with the provisions of Section 601 et seq. of ERISA and Section 4980B of the Code.
(h) Except as set forth on Schedule 4.19(h), the consummation of the transactions contemplated by this AgreementAgreement and the Ancillary Documents will not: (i) entitle any individual to severance pay, unemployment compensation or other benefits or compensation (except as set forth on Schedule 4.19(a)); (ii) accelerate the time of payment or vesting, or increase the amount of any compensation due, or in respect of, any individual; or (iii) result in or satisfy a condition to the payment of compensation that would, in combination with any other payment, result in an “ERISA Affiliateexcess parachute payment” meanswithin the meaning of Section 280G of the Code. No Target Company has incurred any Liability for any Tax imposed under Chapter 43 of the Code or civil liability under Section 502(i) or (l) of ERISA.
(i) All Company Benefit Plans can be terminated at any time prior to the Closing Date without resulting in any Liability to the Surviving Corporation or Purchaser or their respective Affiliates for any additional contributions, penalties, premiums, fees, fines, excise Taxes or any other charges or liabilities.
(j) Each Company Benefit Plan that is subject to Section 409A of the Code (each, a “Section 409A Plan”) as of the Closing Date is indicated as such on Schedule 4.19(j). No options or other equity-based awards have been issued or granted by the Company that are, or are subject to, a Section 409A Plan. Each Section 409A Plan has been administered in compliance, and is in documentary compliance, in all material respects, with the applicable provisions of Section 409A of the Code, the regulations thereunder and other official guidance issued thereunder. No Target Company has any obligation to any employee or other service provider with respect to any Person, Section 409A Plan that may be subject to any Person or entity (whether or not incorporated) that is under common control or treated as one employer Tax under Section 4001(b)(1) 409A of ERISA the Code. No payment to be made under any Section 409A Plan is, or to the Knowledge of the Company will be, subject to the penalties of Section 414(b), (c), (m) or (o409A(a)(1) of the Code. There is no Contract or plan to which any Target Company is a party or by which it is bound to compensate any employee, consultant or director for penalty Taxes paid pursuant to Section 409A of the Code.
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Benefit Plans. (a) The Corporation and each Subsidiary has made available to Buyer true and correct copies of all Benefit Plans and, to the extent applicable, all related trust agreements, summary plan descriptions, actuarial reports, insurance contracts, administrative service agreements, maintained for the benefit of, or relating to, any current or former employee of the Corporation, each Subsidiary, and any Affiliate.
(b) With respect to the Benefit Plans, individually and in the aggregate, (i) Set forth on Schedule 3.19(a) is a true no event has occurred, and complete list of each material Benefit Plan to the Knowledge of the Purchaser and its Subsidiaries Corporation, there exists no condition or set of circumstances in connection with which the Corporation could be subject to any liability that is reasonably expected to have a Material Adverse Effect.
(each, a “Purchaser Benefit Plan”). c) With respect to each Purchaser the Benefit PlanPlans, individually and in the aggregate, there are no funded benefit obligations for which contributions have not been materially made or properly accrued accrued, and there are no material unfunded benefit obligations that have not been accounted for by reserves, reserves or otherwise properly footnoted in accordance with GAAP on the Purchaser Financials. Except as set forth on Schedule 3.19(a), neither the Purchaser nor any Subsidiary or has in the past been Financial Statements, which obligations are reasonably expected to have a member of a “controlled group” for purposes of Section 414(b), (c), (m) or (o) of the Code other than with the Purchaser or another Subsidiary, nor does the Purchaser or any Subsidiary have any Liability with respect to any collectively-bargained for plans, whether or not subject to the provisions of ERISAMaterial Adverse Effect.
(ii) Each Purchaser Benefit Plan in all material respects is and has been operated in compliance with all applicable Laws in all material respects, including ERISA and the Code. Each Purchaser Benefit Plan which is intended to be “qualified” within the meaning of Section 401(a) of the Code (i) has been determined by the IRS to be so qualified (or is based on a prototype plan which has received a favorable opinion letter) during the period from its adoption to the date of this Agreement and (ii) is funded through a trust exempt from taxation under Section 501(a) of the Code. To the Knowledge of the Purchaser, no fact exists which could adversely affect the qualified status of such Purchaser Benefit Plans or the exempt status of such trusts.
(iiid) With respect to each Purchaser Benefit Plan, the Purchaser has made available to the Seller accurate and complete copiesKnowledge of the Corporation, if applicableneither such Benefit Plan, of: nor any trustee, administrator, fiduciary, agent or employee thereof has at any time been involved in a transaction, which could create a liability that is reasonably expected to have a Material Adverse Effect.
(e) Except as set forth in Schedule 3.13 of the Corporation Disclosure Schedule, neither the Corporation nor any of its Subsidiaries is a party to any oral or written (i) all Purchaser Benefit Plan documents and agreements and related trust agreements union or annuity Contracts (including any amendmentscollective bargaining agreement, modifications or supplements thereto); (ii) all summary plan descriptions and material modifications thereto; agreement with any officer or other key employee of the Corporation or any of its Subsidiaries, the benefits of which are contingent, or the terms of which are materially altered, upon the occurrence of a change in control of the Corporation or other transaction involving the Corporation of the nature contemplated by this Agreement, (iii) agreement with any officer of the three (3) most recent Forms 5500, if applicable, and annual report, including all schedules thereto; Corporation or any of its Subsidiaries providing any term of employment or compensation guarantee (iv) agreement or plan, including any stock option plan, stock appreciation right plan, restricted stock plan or stock purchase plan, any of the most recent annual and periodic accounting benefits of plan assetswhich will be increased, or the vesting of the benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement; or (v) agreement or commitment to provide health care, life insurance or other benefits after termination of employment, except for retirement benefits under the three (3) most recent nondiscrimination testing reports; (vi) the most recent determination letter received from the IRS, if any; (vii) the most recent actuarial valuation; and (viii) all material written communications between the Purchaser or any Subsidiary or any Purchaser Benefit Plan and any Governmental Authority and relating to a Purchaser Benefit Plan within six (6) years preceding the date of this AgreementCorporation's retirement plans.
(ivf) With respect to each Purchaser Benefit Plan: (i) such Purchaser Benefit Plan has been administered Nothing contained in this Agreement shall limit or restrict the Corporation's or the Buyer's right from and enforced in all material respects in accordance with its terms, the Code and ERISA; (ii) neither the Purchaser nor any Subsidiary nor any employee, officer or director thereof that is a fiduciary (under ERISA) with respect to such Purchaser Benefit Plan has breached any of its fiduciary responsibilities, obligations or duties imposed on it by ERISA; (iii) no Action is pending or threatened in writing (other than routine claims for benefits arising in the ordinary course of administration); (iv) nothing has occurred with respect to any Purchaser Benefit Plan that has subjected the Purchaser or any Subsidiary to any material penalty under Section 502 of ERISA or Section 4975 of the Code; and (v) all contributions and premiums due through after the Closing Date have been made in all material respects as required under ERISA to amend or have been fully accrued in all material respects on the Purchaser Financials.
(v) No Purchaser modify any Benefit Plan is, and neither in such manner as the Purchaser Corporation or any Subsidiary the Buyer deems appropriate or any of their respective ERISA Affiliates sponsors, maintains, contributes to, is required to contribute to, or otherwise has or could reasonably be expected to have any current or contingent Liability under or with respect to, terminate a “defined benefit plan” (as defined in Section 414(j) of the Code), a “multiemployer plan” (as defined in Section 3(37) of ERISA) or a “multiple employer plan” (as described in Section 413(c) of the Code) or is otherwise subject to Title IV of ERISA or Section 412 of the Code. To the Purchaser’s Knowledge, no Purchaser Benefit Plan will become a multiple employer plan with respect to any Purchaser Entity immediately after the Closing Date. Neither the Purchaser nor any Subsidiary currently maintains or has ever maintained, or is required currently or has ever been required to contribute to or otherwise participate in, a multiple employer welfare arrangement or voluntary employees’ beneficiary association as defined in Section 501(c)(9) of the Code. For purposes of this Agreement, “ERISA Affiliate” means, with respect to any Person, any Person or entity (whether or not incorporated) that is under common control or treated as one employer under Section 4001(b)(1) of ERISA or Section 414(b), (c), (m) or (o) of the CodePlan.
Appears in 1 contract
Samples: Stock Purchase Agreement (Lineo Inc)
Benefit Plans. (a) Schedule 3.11(a) lists all Benefit Plans in effect and maintained, sponsored, contributed to, or required to be contributed to by the Sellers and/or the Companies, under which Employees have accrued material benefits for service as Employees in connection with the Business, true and correct copies of which have been made available to Buyer.
(b) Except as would not result in a material Liability to Buyer:
(i) Set forth on Schedule 3.19(a) is a true and complete list of each material Benefit Plan that is intended to be qualified under Section 401(a) of the Purchaser and its Subsidiaries (each, Code has received a “Purchaser Benefit Plan”). With favorable IRS determination letter issued with respect to each Purchaser such plan or a favorable advisory or opinion letter issued by the IRS to the sponsor of the volume submitter or prototype plan adopted with respect to such Benefit PlanPlan to that effect, there are and no funded benefit obligations for amendment has been made nor has any event occurred with respect to any such Benefit Plan which contributions have not been materially made would reasonably be expected to cause the loss or properly accrued denial of such qualification under Section 401(a) of the Code;
(ii) no Seller, no Subsidiary of a Seller, and there are no material unfunded benefit obligations that have not been accounted for by reserves, ERISA Affiliate of any Seller or otherwise properly footnoted in accordance with GAAP on the Purchaser Financials. Except as set forth on Schedule 3.19(a), neither the Purchaser nor any Company or of any Subsidiary of any Seller or any Company sponsors, maintains, contributes to, has in the past been a member of a “controlled group” for purposes of Section 414(b)sponsored, (c)maintained or contributed to, (m) or (o) of the Code other than with the Purchaser or another Subsidiary, nor does the Purchaser or otherwise has any Subsidiary have any Liability obligation with respect to (A) any collectively-bargained for plans, whether plan or not arrangement subject to the provisions Title IV or Section 302 of ERISA.
(ii) Each Purchaser Benefit Plan in all material respects is and has been operated in compliance with all applicable Laws in all material respects, including ERISA and or Section 412 of the Code. Each Purchaser Benefit Plan which is intended to be , (B) a “qualifiedmultiemployer plan” within the meaning of Section 401(a3(37) of ERISA, or (c) a “multiple employer welfare arrangement” (as defined in Section 3(40) of ERISA);
(iii) except as set forth on Schedule 3.11(b)(iii), no Benefit Plan provides health, medical or other welfare benefits after retirement or other termination of employment, other than for continuation coverage required under Section 4980B(f) of the Code and Sections 601 through 608, inclusive, of ERISA or similar state Law (i) has been determined by the IRS to be so qualified (or is based on a prototype plan which has received a favorable opinion letter) during the period from its adoption to the date of this Agreement and (ii) is funded through a trust exempt from taxation under Section 501(a) of the Code. To the Knowledge of the Purchaser, no fact exists which could adversely affect the qualified status of such Purchaser Benefit Plans or the exempt status of such trusts.
(iii) With respect to each Purchaser Benefit Plan, the Purchaser has made available to the Seller accurate and complete copies, if applicable, of: (i) all Purchaser Benefit Plan documents and agreements and related trust agreements or annuity Contracts (including any amendments, modifications or supplements thereto“COBRA”); (ii) all summary plan descriptions and material modifications thereto; (iii) the three (3) most recent Forms 5500, if applicable, and annual report, including all schedules thereto; (iv) the most recent annual and periodic accounting of plan assets; (v) the three (3) most recent nondiscrimination testing reports; (vi) the most recent determination letter received from the IRS, if any; (vii) the most recent actuarial valuation; and (viii) all material written communications between the Purchaser or any Subsidiary or any Purchaser Benefit Plan and any Governmental Authority and relating to a Purchaser Benefit Plan within six (6) years preceding the date of this Agreement.;
(iv) With respect to each Purchaser except as set forth on Schedule 3.11(b)(iv), neither the signing of this Agreement, nor the consummation of the transaction contemplated hereby will accelerate the time of payment or vesting, or trigger any payment or funding, of any compensation or benefits or trigger any other material obligation under any Benefit Plan: ; and
(iv) such Purchaser each Benefit Plan has been is operated and administered and enforced in all material respects in accordance with its termsterms and applicable Law, including ERISA and the Code Code.
(c) The representations and ERISA; (ii) neither the Purchaser nor any Subsidiary nor any employee, officer or director thereof that is a fiduciary (under ERISA) with respect to such Purchaser Benefit Plan has breached any of its fiduciary responsibilities, obligations or duties imposed on it by ERISA; (iii) no Action is pending or threatened in writing (other than routine claims for benefits arising in the ordinary course of administration); (iv) nothing has occurred with respect to any Purchaser Benefit Plan that has subjected the Purchaser or any Subsidiary to any material penalty under Section 502 of ERISA or Section 4975 warranties of the Code; Sellers included in this Section 3.11 shall constitute the sole and (v) all contributions exclusive representations and premiums due through warranties of the Closing Date have been made in all material respects as required Sellers relating to employee benefit matters, including any matters arising under ERISA or have been fully accrued in all material respects on the Purchaser Financialsother applicable Laws.
(v) No Purchaser Benefit Plan is, and neither the Purchaser or any Subsidiary or any of their respective ERISA Affiliates sponsors, maintains, contributes to, is required to contribute to, or otherwise has or could reasonably be expected to have any current or contingent Liability under or with respect to, a “defined benefit plan” (as defined in Section 414(j) of the Code), a “multiemployer plan” (as defined in Section 3(37) of ERISA) or a “multiple employer plan” (as described in Section 413(c) of the Code) or is otherwise subject to Title IV of ERISA or Section 412 of the Code. To the Purchaser’s Knowledge, no Purchaser Benefit Plan will become a multiple employer plan with respect to any Purchaser Entity immediately after the Closing Date. Neither the Purchaser nor any Subsidiary currently maintains or has ever maintained, or is required currently or has ever been required to contribute to or otherwise participate in, a multiple employer welfare arrangement or voluntary employees’ beneficiary association as defined in Section 501(c)(9) of the Code. For purposes of this Agreement, “ERISA Affiliate” means, with respect to any Person, any Person or entity (whether or not incorporated) that is under common control or treated as one employer under Section 4001(b)(1) of ERISA or Section 414(b), (c), (m) or (o) of the Code.
Appears in 1 contract
Samples: Equity Interest Purchase Agreement (Tetra Technologies Inc)
